Advisory Opinions - Billable Hours by the Millions

Episode Date: July 11, 2023

Sarah and David catch-up with non-SCOTUS cases starting with... -A multi-million dollar lawsuit involving Musk's Twitter deal -A bold move by a judge blocking state actors and social media workers meeting over protected speech -Tennessee’s latest push in the culture war with a ban on gender-affirming care -A bullied child, a MAGA hat, and the First Amendment Show Notes: -David French for The Dispatch on convincing versus coercion Learn more about your ad choices. Visit megaphone.fm/adchoices

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So when I need a judgment-free zone, I go to Planet Fitness. Get started for $1 down and then only $15 a month. Offer ends April 12th. $49 annual fee applies. See Home Club for details. You ready? I was born ready. Welcome to Advisory Opinions. I'm Sarah Isger. That's David French. And we are not going to talk about the Supreme Court at all today, David. Not once. But it's still going to be a tremendous podcast. Well, yeah, because in theory, we've had all these cases piling up at the lower courts, but actually we're not even doing that. Just in the last week, we've had some

really interesting, important cases to discuss. So we're going to start with the lawsuit of Twitter's parent company suing Wachtell Lipton for a whole lot of money related to the sale of Twitter. Then we're going to move on to a district court's finding about social media companies, the Biden administration, state actors, the First Amendment. It's going to be spicy. Then we'll talk about Tennessee's gender affirming care law that was enjoined at the district court level. Well, the Sixth Circuit said no, dog, to that one. And finally, an interesting Fifth Circuit case going on bonk that I just really wanted David's read about what happens when a student is being bullied in school over his conservative beliefs. We'll see. All right, David, we're going to start with Twitter.

And it's important at this point to lay out that we have this complaint from Twitter's parent company. And that's really all we have. And normally we don't talk about cases in this posture because we've only got one side's version of events, and that can be misleading. It can be wrong. There can be like a smoking gun ace in the hole that the other side has. And I have to tell you right at the outset, I'm very concerned that that's exactly what's going to happen in this case. But nevertheless, I think we should talk about it. So remember when Elon Musk goes to buy Twitter, they come up, they agree, everything's fine. And then Elon Musk tries to pull out. So Twitter hires Wachtell Lipton to basically force performance by Elon Musk, which they do. to basically force performance by Elon Musk, which they do. Then 10 minutes before Musk officially takes over, Twitter pays Wachtell Lipton $90 million.

If that sounds like a lot of money, it's not actually. This is, I don't want to say standard, but basically this is how mergers and acquisitions works, where the lawyer fees are this rounding error for the whole deal, and yet it's just enormous sums of money. So enormous, in fact, that it represents, again, according to the complaint, 10% of Wachtel's entire income for the year. Okay. Other things from the complaint that you learn is that of that $90 million that they earned, $72 million is a success fee, okay? It's about 6x what their billable hours were. Again, you can contract for anything you want, right? But at least again, according to the complaint, there's some problems here. One, of the billable hours that were billed, they're claiming that there's no actual description like that one associate billed a million dollars in the description. Their time ledger is analysis.

And another one is strategy. And then for two of the partners who billed $2 million a piece, there's none at all. All right. That's pretty funny. But the bigger deal is that they claim that the success fee, the bonus, wasn't in the original contract with Wachtell. That originally, it was just an hourly deal. And then after the deal is sealed, so Wachtell comes in, saves the $44 billion sale, forces performance by Musk, and then emails the Twitter chief legal officer and is like, so let's talk about what we're going to do about our fee and gives them some examples of other fee structures that they've had. A percentage of the overall buy, a sort of X factor

of how much they build, et cetera, et cetera. And that in the, and I don't just mean waning hours. Again, this was paid 10 minutes before Musk took over that Twitter's fiduciaries, the board, et cetera, agree to this $72 million success fee, whatever it was based on. Basically when they were no longer acting in the fiduciary interest of Twitter. They believed at that point that they were going to be fired, which they were again shortly after those 10 minutes expired. And that Wachtell violated its fiduciary duties to

its client by not mentioning that under California law, any success fees have to be written and they have to be at the front end, not the back end of, negotiated at the back end of a deal. Okay, so David, let me tell you my priors. Okay. One, Elon Musk has filed a number of silly lawsuits in his career.

And so generally I am pretty side-eye about Elon Musk attached lawsuits. Two, on its face, this seems to have some merit. This will be a contracts dispute. It'll be pretty controlled by existing law, I think, for the most part. This is not unusual for Wachtell. Just again, the amount I'm talking about here, and I don't even think the methods are particularly unusual for Wachtell. But that doesn't mean that it's kosher. Three, I think Wachtell's answer probably, if I'm just guessing, is going to be pretty damning to this whole thing. They're going to have this pretty lockdown, but maybe they got sloppy and I'm wrong. Well, so there's so much here that I think

is interesting, which is why we're leading off the podcast with it. One is, I think some people might be wondering, why would Twitter want to force the sale? Was this a hostile takeover? Is this something where they could have fended off Elon Musk if they wanted to? But you have to remember is that Elon Musk was buying Twitter for $44 billion, more than it was worth. So there are a lot of reasons to force that sale. If you're in Twitter to make money, if you have an ownership share in Twitter to make money, this was your payday. And it was a bigger payday, arguably,

than the market would ordinarily bear. So there were a lot of incentives. If you're just in Twitter to make money, to force Elon to buy Twitter. So if that's the circumstance where you have a giant, giant pile of money waiting out there to be spent for Twitter and Elon is recalcitrant, is unwilling to spend it, it's worth a crap ton of money to you to force that sale. And that 90 million, you're right, it's a rounding error in the larger sale.

It's not a rounding error to Wachtell Lipton. It's a big chunk of change to Wachtell Lipton, but it's a rounding error in the whole sale. And so Wachtell Lipton could basically come back and say, okay, wait a minute, let's be real here. basically come back and say, okay, wait a minute, let's be real here. If you're trying to, our work earned these guys a giant payday, just giant. And the fact that we get a premium from that, let's just put this quote unquote premium in perspective. If we were plaintiff's attorneys and we had just won a $44 billion jury award and we were on contingency,

we might be getting $16 billion out of that. So the fact that we're getting $90 million for forcing $44 billion in compensation to flow to Twitter is a bargain. It's a bargain. And so I think just on sort of the fiduciary elements of it, I'm not sure that Twitter is going to win here. However, under the California law elements, I'm much more interested. That's interesting. That's fascinating. Did they pull a fast one just as far as the actual legal requirements for bonus success fees, etc.? That's more interesting to me. requirements for bonus success fees, et cetera. That's more interesting to me. But again, Sarah, you said something really key up front. And we have covered complaints before, and we always give the same caveat that this is one side of the story. It would surprise me if Wachtell had not locked this down in some way. We're not dealing with amateur hour here when we're dealing with Wachtell. The opposite. That's not to say they're infallible, that they don't make mistakes. Every giant firm has a history of mistakes that they've made. It's just that the likelihood

that this was not locked down still seems to me relatively low. And I'm looking forward to seeing the response. I mean, this is literally what W me relatively low. And I'm looking forward to seeing the response. I mean, this is literally what Wachtell does. Right. So, but as you say, that doesn't mean that you don't end up cutting corners or doing it the lazy way where you sort of have, of course, there's going to be a,

we're going to figure this out at the end, what our success fee is. And so we didn't put it in the initial contract. Well, that might be a problem uh you know you mentioned plaintiff's side contingency fee there's a few interesting things about that one of course it's in the initial retainer agreement yep and two the way contingency fees generally work even if there's uh it's it's not a pure contingency fee it's sort of an hourly plus success bonus

contingency fee arrangement. Part of that is because the law firm itself then takes on some of the risk. And so your hourly fee may be reduced or it may have caps on it, things like that. But here it appears Wachtell was charging their full freight. And then there's a success fee that they were going to figure out at the end. Again, I'm guessing that Wachtel is like, yep, that's exactly how it works. Thanks for coming to my TED Talk.

But in that sense, it's very different than a normal contingency fee arrangement. And the only thing I'd note about California law is clearly the purpose is not to help the Twitters and Wachtels of the world figure out their contracts. It's actually very much because of contingency fee, personal injury side where one party is more sophisticated than the other. Here you had two sophisticated parties. I will also say, if there's a problem on the fiduciary side, David, I'm convinced after reading this that the problems with the board,

the Twitter fiduciaries who neglected their sort of adversarial role against the law firm to negotiate for fees, but there's a reason you don't sue the Twitter fiduciaries for $90 million. They don't got it. Right. Well, and also there's an argument here that their fiduciary responsibility was maximizing the sale price. That was their fiduciary responsibility. And then they can come back and say, look, what are you talking about violation of our fiduciary duty? Because we engaged the best law firm or what we'll argue is the best law firm in the country for this, we accomplished our fiduciary mission to the shareholders of the corporation by

getting them $44 billion. And we probably wouldn't have gotten it, they would argue, without spending the money to have Wachtell. And everyone knows, you know, David Latt has got some good stuff about it on his original jurisdiction. Everybody knows that Wachtell has billing arrangements related to these kinds of matters, which include success fees, etc. This is just normal course of business.

And all they're doing is giving you a peek inside how these deals get done. That's all this complaint is. And that actually is the reason why it was most interesting to me, was not so much that I thought Elon had stated a clear claim here, but it's a neat kind of inside look at how giant deals get done. And I find that really interesting. And since David and I try not to commit too much malpractice on this podcast, I will just note that this has implications. Just getting this insight into it is interesting because of the law firm business model evolution that we've seen in the last i don't know what you'd call it david 10 or 15 years

the balance of power in a lot of these big law firms is really shifting a we're seeing a lot of mergers of law firms in those top groups as law firms firms, like a lot of other companies, when the economy constricts, you're going to see more mergers. And you're seeing that in law firms as well. But maybe more importantly, the balance of power between the litigation folks and the mergers and acquisitions folks has really shifted so that the M&A folks are the ones bringing in all the money these days. And so the power in these law firms has moved quite a bit as well, both the power internally to the law firms, the power in terms of which clients can demand the law firms do what and when,

all of that. And this is why. Because suddenly you get $90 million, 10% of your law firm's entire revenue for that year in one deal. So, yep, this is pretty interesting. If the litigation somehow even made it past sort of initial stages, it will be a big deal for a lot of these AMLA 100 law firms that have M&A departments built in with their litigation sides. Because as I said, these are the people, these are the like hedge fund bros within law firms. Right. And if you're one of the hedge fund bros within law firms listening to AO, we're extremely interested in your comments about this deal. So if you're not already a subscriber to The Dispatch, subscribe and put your comment in because I'm very interested in some M&A attorneys' perspectives on this lawsuit. And Sarah, I'll reiterate the malpractice warning.

I just found it a really interesting, and I had a brush with M&A law early in my legal career when I was one of these young associates. And young associates are basically often just sort of treated like widgets that you throw into the breach or your pawns. You're just sort of thrown forward into doing massive amounts of make work as part of some of these deals. And even though I was a litigator, I got pulled into some M&A work in a crunch. Very interesting, very fascinating. And I have to also say, Sarah, utterly brutal from an hour's perspective. It is. When you go to law school, one of the first things you're going to need to think about is whether you're going to go sort of a litigation route or a transactional route. Well, this is the transactional route. They're the cool kids. They're the ones bringing in all the money. But like David said,

that beginning of your due diligence is just grinding and it is grinding hard. But the transactional kids, I mean, of, I i guess so one of my you know our little like awesome pod of girls who i hung out with in law school two of the four of us pursued transactional side i did not know what that meant not only did i not know what it meant going into law school i didn't know what it meant leaving law school, the transactional people have to learn litigation, but the litigation people never have to learn transactions. But they were always much cooler than I was. They remain much cooler than I am. So just think about that as you're going to law school. So I would say there are some ups and upsides and downsides of transactional. One of the downsides is say goodbye to your end of your holiday.

There's an awful lot of deals that are race where people are racing to get done before the new year. And for a litigator, the best time of the year is that time literally from Thanksgiving through New Year's because the courts don't want to be doing anything and things tend, it's not that you're not working at all, but I will say between Christmas, that golden week between Christmas and New Year's, nobody's doing anything. It's very rare. Except if the Supreme Court accepts your emergency petition for oral argument on the vaccine mandate case in a blizzard in the middle of a pandemic where you have to shut down your whole house and your wife has to take off that golden hour

week to just focus on childcare so that you can prepare for the oral argument, just hypothetically. Just hypothetically. So there are exceptions, of course, to this rule, but one of my vivid memories of being a law firm attorney was, so I was always in the commercial litigation department and we had our own floor. And then there was another floor with different practice groups. And I was on the litigation floor one year early in my career in that golden week between Christmas and New Year's, just chilling, drinking my coffee. And I thought, I want to go down and see what's going on on the transaction floor. So I take my coffee and I walk down the steps, that spiral staircase.

And the first thing that happens is I'm almost bowled over by a sprinting associate. It's like that meme where everything's on fire and the dog in the middle is like, all is fine. This is fine. This is fine. But also I will say that the camaraderie around pulling together a huge deal is phenomenal. It's similar to the camaraderie around a giant piece of litigation going to trial. And when you get it done and it's successful and it's just a great, it's a great thing.

It's a great feeling. Just like it's a great thing and a great feeling when you pour all that work into a case and the jury comes out for you or you get that ruling, that order from a court of appeals in your favor. Few better feelings in all of professional life than that, Sarah. You know, it was probably a great feeling is eight minutes before the deal closed, getting $90 million wired into your account, knowing that eight minutes before the deal closed, getting $90 million wired into your account, knowing that eight minutes later, it was never going to happen. That's cool. Yeah, that's probably a pretty good feeling.

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James.com. Use code advisory at checkout to save. Terms and conditions apply. All right. Let's talk about this social media injunction. David, do you want to set this up? Yeah. Can I just begin by saying, wow. So essentially what happened is you had a case brought in Louisiana. And this is a case brought in the Western District of Louisiana, Monroe Division. Of course, the logical case, the Silicon Valley of the Deep South, Sarah. Well, this is one part we're going to have to talk about, right? When you file litigation in these one-horse towns, both sides do this because they basically know what judge they're going to get. And we've talked about this before. It is a problem. Everyone bemoans it when their side loses and it's a problem. It's a problem across the board. It's a problem that's actually really

easy to fix. And yet here we are, it's still a problem. It's a problem. So anyone, one of the fastest ways to lose credibility with me in discussing this case is if you act indignant that there was forum shopping here. Like, come on. Come on, guys. And look, as you said, both sides do it. Both sides do it. There's a reason why you saw a bunch of injunctions against the Trump administration coming out of the Northern District of California.

There are reasons why you had a bunch of injunctions against the Obama administration coming out of various courtrooms in South Texas. I mean, come on, guys. This is what happens here. But an injunction entered in form shopping is still an injunction. So, we need to talk about it. And so, basically, what has occurred is a number of plaintiffs sued the Biden administration, occurred is a number of plaintiffs sued the Biden administration. And they claimed that the Biden administration violated their First Amendment rights in their efforts to get Facebook, et cetera, to censor or take down posts regarding the election regarding covet 19 etc etc and then the court and asked the court to enjoin the federal government or various instruments of the federal government from uh engaging in or from engaging in efforts to persuade co coerce, etc. social media companies from taking down posts. And the judge entered an extraordinarily broad injunction against the Biden administration.

How broad, you ask? I think Politico called it sweeping. Sarah, can sweeping be an understatement? It was in this case. It was in this case. So essentially what the judge did is he ordered the HHS, the National Institute of Allergy and Infectious Diseases, the Surgeon General, the Centers for Disease Control, the Census Bureau, the FBI, and the United States Department of Justice, bureau the fbi and the united states department of justice multiple members of the executive office of the president from engaging in any efforts to uh and and i only hit part of this the u.s department of state you name it from taking the following actions meeting with social media companies for the purpose of urging encouraging pressuring or inducing in any manner the removal deletion suppression or reduction of content containing protected free speech specifically flagging content or posts on social media and forwarding

to social media companies urging encouraging pressuring or inducing etc and this is essentially enjoining virtually every meaningful branch of the government from contacting social media companies and asking them, encouraging them in any way to take down content that would be protected by the First Amendment. At the same time, it did not prohibit these same entities from informing them of criminal activity, contacting them about national security threats, notifying them about criminal efforts to suppress voting, informing them about threats to public safety, and did not enjoin them from exercising permissible government speech, promoting government policies or views of matters of public concern.

So it's actually a lot more of a mess, Sarah, of an injunction than people were saying, because on the one hand, it was enjoining encouraging of taking down posts. And on the other hand, it's trying to not enjoin, quote, government speech or informing these social media companies. And so it's both more and less inclusive than kind of the media reports said. And so it's more inclusive in that it's ridiculously sweeping. It's less inclusive in that it has these carve out caveats that quite honestly create real confusion.

Sarah, your eyes are lighting up. You've got something to say. So the Biden administration, the Department of Justice, already filed its, huh, motion? Yeah. Which went something like this. Your injunction is internally contradictory. Can you please stay it while we figure this out or at least clarify it

huh uh this will be going to the fifth circuit toot sweet on some of those injunctions you can't say on the one hand nothing in this injunction limits the government's free speech rights but also all of these things yeah it's wild it wild. It's wild. That's not how it works. You don't get to say my injunction touches everything that's constitutional. You go figure that out. It's crazy. That would be fun though if you could do that. I'm enjoining you from doing everything that's not constitutionally allowed. Well, you know, this is actually something, I'm so glad you raised that because this is actually something I dealt with a lot in my legal practice, which was in the university speech code context. They would say, we're preventing, we're saying you cannot do A, B, C, D, E, F, and G.

And then it would have a savings clause along the lines. And of course, none of this should be interpreted to prevent constitutionally protected speech. A college freshman, a college freshman isn't going to read this and know that they have full free speech rights. They're going to read it and think everything that they've outlined is not constitutionally protected speech. And therefore, I'm going to refrain from engaging in that discourse. But yeah, the injunction was amassed just on its own terms. But yeah, the injunction was a mess just on its own terms. And then the actual court opinion, the ruling, this very, very long ruling was also a mess. And why was it a mess? It conflated a bunch of stuff that was clearly permissible under current case law with borderline stuff or stuff that I raise my own eyes at and say,

ooh, I think that crossed the line of coercion and it conflated it all into one big thing. And I think that that was just fundamentally confusing about the opinion and also fundamentally flawed about the opinion. And it might be worth a very brief refresher to people on what the legal standard is here. And the best way to describe it is that the law protects, under current law, the ability of government officials to try to convince private parties to take action. It prohibits attempting to coerce private parties to take action to suppress constitutionally protected speech. And what's the line between convincing and coercing? And it's not super clear.

I wrote a piece about it in 2022 in the dispatch that we can put in to show notes, but there's a lot of need for clarification in this area of law. But let me just say the existing circuit court authority from the second circuit to the ninth circuit gives government officials far more latitude than this district court judge gave them. officials far more latitude than this district court judge gave them. So this district court opinion is an outlier to a pretty, it's a clear outlier, but that is not to say that the district court didn't uncover or discuss some things that were genuinely concerning. At least that's my perspective, Sarah. So I'm glad you mentioned the conflation point, because to me, what this opinion sort of read was, you know, someone threw a bunch of spaghetti

against the wall and the judge was like, oh my God, there's a big mess on the wall. That's not how this works. You have to actually point to individual pieces of spaghetti and say, this piece of spaghetti is a problem and this piece of spaghetti is a problem. You don't just get to say the wall looks like a mess, so I'm enjoining all of it. Because each piece of spaghetti is a problem and this piece of spaghetti is a problem you don't just get to say the wall looks like a mess so i'm enjoining all of it um because each piece of spaghetti has its own flavor okay my money has fallen apart but the point is this looked to me a little bit like the fox news litigation where the judge was like well if you take everything all together there's definitely some defamation here and it's like no it matters who said it was it the guest who said it was it this individual line like you've got to parse this all out the law is actually pretty specific on this stuff but i will also agree with you david

that specifically the white house digital director whose name is rob flaty. They followed down some of his specific email correspondence and write, this guy's not a lawyer, but he's in a lot of contact with the social media companies for obvious reasons. He's the digital director for the White House. He might have benefited from a lawyer reading some of this stuff. It wasn't great. No, there's some stuff in some of that correspondence that I don't know if the circuit court will find it to be coercion. But my assessment is a healthy First Amendment jurisprudence would find it to be coercive. And we talked about this case before, the NRA case, where there was a guidance letter put out by the New York State Comptroller advising banking entities that it regulated about reputational risks to doing business with the NRA. And to me, that crossed a line.

The Second Circuit disagreed, sort of showing how much deference that does exist when it comes to government convincing. But there were a number of elements in here where I thought that crosses a line. And then a whole bunch where I was thinking, wait a minute, judge, a lot of this is just informing social media companies about posts that violate their own social media guideline, their own moderation policy. And that's not going to be coercion. If the policy was created by the social media company and the government is notifying the social media company of applying a complaint procedure that anyone can use, then you are not, this is not coercion.

This is not going, under any existing case law, this would not not coercion this is this is not going under any existing case law this would not be coercion so it's it's a giant mess sarah and i think so let me phrase this as a question to you david because i want to walk through some of the statements that i think you and i are flagging as like statements um but before i do that so you just said for instance trying to convince someone to follow their own policies for instance and you're coming from the government that's fine where that line between convince and coerces is what we're going to try to discern here legally the fact that then the white house is run by one party and that they're going to try to convince the social media companies to follow their own policies it's not then surprising that the things they're flagging

are going to be all on one side of the spectrum they're not going to be flagging their own side and trying to convince them to take down liberal speech and so i did find it also odd that the judge in what the second paragraph of this opinion says something like it's notable that it's all conservative speech being taken down i'm like notable maybe but actually expected and legally irrelevant because it's exactly what we'd expect to happen if they were trying to convince the social media companies to do something. Okay, so I want to read a few of these, David. Cannot stress the degree to which this needs to be resolved immediately. Please remove this account immediately.

Now, this one to me, and again, I'm going to pick out a handful of these, not all of them. This opinion is 155 pages long. That one to me probably falls on the convinced side in part because as they know, I'm going to get the exact number wrong, but it was something like the White House was successful 50% of the time at their requests being met. 50% sure sounds more like convinced than coerced to me. If they actually had some real noodle that they were hitting them with, you'd expect it to be very close to 100% of the time if the social media companies were somehow living in fear of the White House rather than convince.

Please remove this account immediately. That doesn't really sound like someone who works for you in any meaningful way. Here's another one the judge highlights. You are hiding the ball. Well, that sounds like the companies aren't working with them. So I don't see how that's even, that's helpful to the other side.

Now here's one that's troubling. Internally, we have been considering our options on what to do about it. And the it here is them not removing content that they've asked to be removed. That sounds coercive. A lawyer might have wanted to look at that before their head of digital media sent that to a social media company when trying to convince the social media company to take down stuff. Okie doke. Here's another one. Not to sound like a broken record but how much content is being demoted and how effective are

you at mitigating reach and how quickly i don't know that's somewhere in between for me david that's sure asking for a lot of internal stuff um but then this again, this is the digital director. Are you guys effing serious? I want an answer on what happened here and I want it today. Now, that sounds like the way you talk to someone who you think works for you. Exactly. Now, just to put some of this into perspective, going back to, you know, we had the Second Circuit case. We had another Second Circuit case where they granted the federal government quality they granted qualified immunity but they had a circumstance where a filmmaker was promoting

a film that with some ads that looked like there was going to be for example a government takeover of times square and the federal law enforcement was worried that was going to create a public panic and they actually sent agents to his house. And they said, the second circuit said, that's problematic, but qualified immunity. So if the New York State comptroller saying, hey, about people that, if you have New York State officials who regulate financial institutions,

sending them a guidance letter that says, be aware of reputational risk, and that's not coercive. But sending armed agents to someone's house is coercive, but qualified immunity. Where does this fall? And again, this is by circuit court authority and not that circuit. I'm just using it to say, this is where, this is kind of how confused all of this is by circuit court authority and not that circuit i'm just using it to say this is where this is kind of how confused all of this is and if you there's a ninth circuit authority that has come out about jawboning that's the term for when government officials try to argue that social media companies should take or not take certain kinds of action there's a ninth circuit

case law that really cuts against this as well and And then here's the other thing, Sarah. Okay, if there is not sort of an explicit threat, actionable, explicit threat of enforcement, don't we start to get into this really weird circumstance where i can start suing public officials senators members of congress others who engage in this do what i say or else kind of rhetoric just as a matter of course in the public square and and this is this is something that i think is a real Pandora's box when you're talking about what's the line between convincing and coercing outside of specific threatened regulatory activity that is within the authority of the threatener. Gets messy fast. yeah like one of the examples they use is white house communications director kate beddingfield saying the white house is assessing whether social media platforms are legally liable for misinformation spread on their platforms and examining how misinformation fits into liability

protection process by section 230 of the communications decency act but she's not the one communicating with the social media companies about which things to take down etc right but on. But on the other hand, they're all working in the same building. They're all going to senior staff meetings together. Surely you can't hide when Rob Flaherty is the one who's like, are you effing serious? And Kate's the one going out there and saying, well, we're looking at various regulations. So that's where it's going to get really i think quite

messy on the other hand you know the cdc and some of these other included lesser agencies if you will that gets really hard they have no stick with which to do anything to the social media companies none at all and none at all and also let's bear in mind that this communication is occurring to some of the most powerful corporate entities in the world with nearly infinity legal resources to resist. And then, in fact, did resist quite often, did, in fact, not comply with federal government demands quite often. with federal government demands quite often. And so, again, when you're talking about, say, threats to Section 230, I don't think that's going to count as coercion because nobody who was making the threat had the capacity to carry it out. Even the executive branch can't revoke Section 230 on its own.

No member of Congress can. No, but. No, but. But if you're going to say, do what I say or we're going to regulate you. Oh my gosh, Sarah, think of the Pandora's box there. I know. But at the same time, it doesn't work for me to say simply, well, the president alone can't revoke your section 230 protection. Yeah, I know. But if he's controlling both houses of Congress, and he has the bully pulpit, and he can pressure members of Congress to do what he wants, I mean, that's too, I think, bright line of rule on the other direction for me.

It's going to be somewhere in between, which is the problem with all of this. The line between convince and coerce is going to be really messy the line between the ability to regulate as retaliation is not going to be as clean cut as like well this member of congress acting alone can't do it yeah but is it mitch mcconnell yeah right but i i think that if you I think threatening legislation as a response to a corporation is... It's got to be okay. My gosh. It's got to be okay, but you do have to see it in the context of then what they're saying to the social media companies.

When they're saying, if you don't do what we want, we're having a meeting later today where we're going to decide what we can do then to make you do it. Things, to make you do it. Things like that. Like, well, then Kate Bedingfield's statement comes into a different light and it's not, well, on the one hand, you're talking to them. And on the other hand, you're proposing legislation. It's the tying the two together. That's what makes it coercive. So here's, you know, here's an example, because again, this, this is something that people don't think through very much. But just today, or I saw it in the news today, seven Republican attorneys general sent a letter to Target saying that their sale of Pride children's pride clothing, that Target should remove the children's pride clothing from the shelves because it's obscene, it violates the law, etc. Spoiler alert, as any even casual listener to advisory opinions

should know, selling Children's Pride gear is not obscenity. It's just not. And so this letter is an explicit threat of legal action against Target for selling, engaging in a commercial activity, an expressive commercial activity that these attorneys general disagree with. Is the letter a First Amendment violation or do you have a First Amendment defense if they actually try to take legal, if they then take legal action? Now, under this reasoning, that letter has already violated the First Amendment already. And so a lot of people who are on the right are like, yeah, go, you go, attorneys general. And then also are like cheering this district court opinion. Well, you can't have both, guys. You can't have both. And the reality is we often elect people.

One of the reasons why we elect people is for them to make moral arguments in the public square, including arguments critical of other private entities. People like the fact that senators condemn this or that, or that members of administrations condemn this or that. And so that's why the law has kind of always tilted towards the government's got broad range to convince, but the instant it starts tying things to specific enforcement actions, then you have coercion. things to specific enforcement actions, then you have coercion. It's kind of a mess, Sarah,

but if you're cheering on this district court opinion, be careful what you wish for. Like with so many other things. Listen closely as a master painter carefully brushes Benjaminjamin moore regal select down the seam of the wall it's like poetry in motion benjamin moore see the love well let's move to another district court that issued a big injunction uh not too long ago in tennessee a district court enjoined a new law that prohibited health care providers from performing gender-affirming surgeries and administering hormones or puberty blockers to transgender minors after determining that the law likely violated the equal protection and due process clauses facially enjoined law enforcement as to hormones and puberty blockers and applied the injunction to all people in the state tennessee appealed the sixth circuit with chief judge sutton writing

judge the pard joining and an interesting concurrence in dissent from judge white stayed the facial injunction and david there were two parts to this. One, let's assume the injunction is good. How big should the injunction be? Should it apply only to the nine parties or should it be a facial injunction, meaning it's statewide? That was actually where all three judges agreed that this was not warranting a statewide injunction. I found that conversation fascinating, and I want to make sure we spend a little bit of time on it, because 10 years ago, I don't think this would have even been part of the conversation. Facial injunctions were just flying by left and right.

And now people seem to see that, like, this is not going very well. And the second part, of course, is on the merits. Like, this is not going very well. And the second part, of course, is on the merits. Does a law that prohibits the administering of hormones and puberty blockers to transgender minors violate the equal protection and due process clauses? So, David, go. Okay, let's walk through this one, two, and three. One, I started reading the opinion before i looked at who wrote

it and as soon as we got to the injunction part i pinged i bet our friend judge sutton wrote this and i scrolled right back up and sure enough there was judge sutton friend of the pod past guest of the podcast uh writing this and if folks remember Judge Sutton has long had thoughts about the breadth of injunctions that are very interesting. So this is completely consistent with this sort of idea that, wait, injunctions should be narrower by default rather than broader. And then the ability of individuals in the absence of class action status to sort of absence of class action status to sort of create sweeping legal rules through injunctions should be limited. So I thought that that discussion was interesting. And then also, I want to highlight two parts of the majority of Judge Sutton's opinion that I think are both the strongest

and the weakest argument that advocates of quote-unquote gender-affirming care have. I think their weakest argument is actually what they've been winning on at the lower court, which is the sex discrimination argument. I think that's the weakest argument once it gets to appellate review for the reasons that Judge Sutton stated, that the gender-affirming care bans, the bans on medical interventions, these medical interventions, are on their face sex-neutral. They apply to boys and girls. They're not sex-targeted. It's any and all permanent medical interventions, regardless of gender or sex, applied to minorsors and i thought that the district courts that have been applying this sort of really heightened review saying it's sex discriminatory

are over reading bostock and so i find the sex discrimination argument to be less convincing the stronger argument i think is the parental rights argument, which essentially says, look, I mean, we have the ultimate call on deciding what medical treatment our children should receive. And when you're talking about medical treatments, especially when you're dealing with medical treatments that are within the mainstream of American medicine, especially when you're dealing with medical treatments that are within the mainstream of American medicine, that that's our call as parents, to which Judge Sutton says, wait, hold on, hold on, hold on. Yes, sure, there is, and the Sixth Circuit has recognized a parental right to direct the medical care of children,

but that's not going to apply to experimental medication that's not FDA approved. And sort of kind of come back to me when the FDA has approved it for this use. But in fact, the reality is, if you look sort of more globally, the opposite is occurring in many parts of the world. They're, you know, Britain, parts of Europe, people are putting pause on the use of this kind of medical intervention. It is not FDA approved. There is a long history of states regulating access to medication in general and regulating access to medical care for children. Specifically, all of that is part of a long history in the United States of America.

And that parental right to control and direct the upbringing of your children doesn't include a parental right to demand an experimental medical treatment. That's what we're dealing with is an experimental medical treatment. And so I thought that he dealt with both what I see as the weaker case and the stronger case pretty well by putting them within a larger context. And if you think of it like this, if this is non-FDA approved and it is experimental, which is true on both counts, then traditionally parent rights do not include a right to demand and well certainly there's a right to demand but not a right to receive medical treatment that is experimental and not approved for use in uh you know for that specific treatment you're seeking and i think he's right about that sarah i just think he's right about that what Sarah. I just think he's right about that. What were your thoughts? So I love this ending paragraph.

It was very Judge Sutton-y, and I just wanted to read it out loud. These initial views we must acknowledge are just that, initial. We may be wrong. It may be that the one week we have had to resolve this motion does not suffice to see our own mistakes. In an effort to mitigate any potential harm from that possibility, we will expedite the

appeal of the preliminary injunction with the goal of resolving it no later than September 30th, 2023. In the interim, the district court's preliminary injunction is stayed. I like that because as I was reading this opinion, it felt cursory at points. And then you realize they only had a week. And so, whereas a conversation of Glucksberg, for instance, or the Abigail Alliance case, I wanted pages. It's like a paragraph. And I was like, well, that's not very Judge Suttony. Why am I only getting a couple sentences on why Glucksberg applies here and things like that? Oh, because this was super duper expedited.

And in that light, I think it's a really great opinion and shows you both, right? It shows you why we want to expedite these opinions to get a quick resolution from an appellate court, but also the limitations of doing that. You know, when we think about the Supreme Court's emergency docket, I think this opinion is really helpful. You're going to get a quick treatment on a whole lot of areas. As you said, David, like you can parse, you know, all of these arguments a few different ways, the equal protection side, the parental rights side, the FDA approval side, and if those are relevant, why they're relevant, why they're relevant,

how they're relevant, where the case law is on them. So I felt like it hit everything, but it just did it really quickly. Yeah. And so I look forward to the longer version as well. But I think the Glucksberg case is worth a hot second on this podcast to talk about. So Harold Glucksberg claimed that Washington state's ban on physician-assisted suicide violated his patients due process rights the supreme court held that the constitution did not bestow an affirmative right to physician assisted uh physician assistance in committing suicide the state could prohibit individuals from receiving care they wanted and their physicians

wish to provide all despite the personal and profound liberty interests at stake. As in that case, so in this one, indeed more so in this one, there's little reason to think that a parent's rights to make decisions for a child sweeps more broadly than an adult's rights to make decisions for herself. All told, the plaintiff's efforts to expand our substantive due process precedents to this new area are unlikely to succeed. I think that's right. I think also there's several times throughout here where it talks about the fact that, look, the fact that there's a bunch of medical professionals who want to do this is relevant but not dispositive. And there's a lot of who gets to decide which is you know a judge

sutton special that we've talked about with him on this podcast in an area that is new politically fraught not fda approved which would perhaps bring in some sort of national preemption issues here yeah and the equal protection claim as you said said, David, let's put that off the table for a moment because I think you're right. Bostock just doesn't say that. Trans identity has never been a protected class before, so you'd have to recognize a new protected class. There's all sorts of problems on the equal protection side. So just on this due process side, okay, given all of that, who gets to decide? And I think you're right. The parental right side is the strongest one.

But of course, states have a police power in banning all sorts of things. And again, I'm not comparing the two in terms of their morality or anything else, but rather just the police power of the state. The state can say that parents can't give their kids certain controlled substances, even if it's for off-label use, which is what this is. You know, meth. Let's say your kid really needs help waking up in the morning. The state can say you can't give your kid meth. That's not a parental rights problem. No one would think that it was. Now, here we're talking about something much more fraught, much more in line with, again, doctors and parents wanting

to pursue a path of treatment for a child and the state coming in and saying, no, you can't do that. So it's very different in that sense. But we're talking again about like, okay, but does the police power of the state extend to that? Do we want all the states getting to sort of work through that democratic process, messy as it may be, to make that decision and then let people vote for a little while, experiment with this, have our laboratories of democracy, or as Judge Sutton talks about, do you constitutionalize a question right at the beginning of it reaching people?

And I think that's what he's most concerned about is this idea of constitutionalizing too much, too quickly. Yeah, I'm really interested in, again, I could be wrong about this. At the end of the day, the Supreme Court could decide this on sex discrimination grounds. So I could be completely wrong about this. But I do think that what is going to be really, really interesting over time is going to be the parents' rights aspect of this. Because right now, when we're dealing with non-FDA approved experimental treatments

it strikes me that Judge Sutton's right about that and it would surprise me if the court reversed itself on a more full hearing here but what happens if the FDA approves we then all of a sudden you're changing things quite a bit because would you want to say to parents that there's now a legal doctrine that my state can decide that FDA approved treatments for children are not permitted in this state and that parents in this state do not have access to the FDA approved treatments that parents in other states have access to. Ooh, that's going to get rough, Sarah. That's going to really get rough. But then here's the other thing. As these European countries have put pause on this, and as multiple American states have put pause on this, I don't think

it's a foregone conclusion that FDA approval is in the offing here. I don't think that's a foregone conclusion. So there's a way in which this could actually end up working itself out by the operation of continued scientific analysis of the issue. analysis of the issue. But as of right now, I think if the law says this, no parent, you do not have a right for your child to receive non-FDA approved experimental treatments. You don't have a constitutional right to that. But if you do receive that treatment legally in another jurisdiction, you have a constitutional right to still keep your family together. In other words, a state that bans this treatment couldn't separate mother and child if they go to a neighboring state and receive it. I think that that's generally where the law is going to shake out and where the law probably should shake out in my view.

A few notes on the equal protection because the dissent actually would find only on the equal protection issue. The dissent says Tennessee's law likely discriminates against plaintiffs on the basis of sex in violation of the equal protection clause, thus triggering intermediate scrutiny. Although the state argues that the act applies equally to males and females, the law discriminates based on sex because medical procedures that are permitted for a minor of one sex are prohibited for a minor of another sex. To illustrate, under the law, a person identified as male at birth could receive testosterone therapy to conform to a male identity, but a person identified female at birth could

not. Indeed, until today, every federal court addressing similar laws reached the same conclusion at which the majority recognized as well that there is now a circuit split on this um you know i think that's a little bit i think it's a really helpful way to phrase it and parse out some of the facts here. But it's not particularly persuasive to me that a male taking testosterone is different than a female taking testosterone. Because the law already included exceptions. For instance, it permits the use of these medical procedures to treat congenital defects, precocious puberty, disease, or physical injury. And it has continuing care exception,

which permits a healthcare provider to continue administering a long-term treatment, say hormone therapy, that began before the act's effective date. So I guess for me, the dissent would need to explain why that wasn't already then contained in this exception of medical procedures. It's just a totally different medical procedure, even if it includes the same drug. So, for instance, we're talking about an off-label use of this drug. Well, are these on-label uses? Because I think they are, in which case we're just dealing with apples and oranges. label uses because i think they are in which case we're just dealing with apples and oranges that doesn't make the equal protection claim uninteresting to me or that the dissent shouldn't be taken very seriously on this point it's a two-page dissent again they were doing this fast

so i'm not begrudging anyone the quickness with which they're trying to get their arguments out there uh but uh yeah i mean i just don't think Bostock reaches this where they are treating the sexes the same, even if by definition, you would be giving one sex a different hormone therapy than another sex. Now, here's where you could have some equal protection issues, Sarah. You have a law that says you cannot engage in surgical intervention to minimize sex characteristics for you know for transition but there's no problem at say getting a breast enlargement surgery to exaggerate sex characteristics and why the reason why i bring that up you might think why

would you bring that up well the best and this is going to be like some of this sort of, this is going to be the end is near doomism. But did you know, again, these are hard statistics to track, but I've seen statistics that breast enlargement surgeries for minor children, for girls, are 10 times more common than quote-unquote gender affirming breast reduction or elimination surgeries and so it's actually far more common than you might think for teenage minor teenage girls to get breast enlargement surgery what the heck sarah like what the heck and to think i just used to pray for a volleyball to hit me in the face so i could get a nose job sadly two volleyballs did hit me in the face over the course of my early youth and neither one broke my nose i don't know i just thought that

you know true story sarah i had the opportunity for a nose job because when I was in, literally, when I was in law school, I ran into running at full speed a former linebacker from Eastern Carolina University who's a classmate. And it might not surprise you that he won that collision. Like an 18-wheeler and a Prius. It wasn't much of a close call. He was 6'3", 6'4", and maybe 220, 230. And I was six feet and like 170. Yeah, it wasn't a close call. Broke my nose badly. And I'm about to go

into surgery. And the surgeon who was actually a plastic surgeon at Harvard Medical School, so I was in good hands, said to me, you have a rather prominent nose. Do you want me to do something about that while I have you? And I said, no, let's just restore it to what it was. So it was there. It was there. It was hanging out there as an option. But I agree with you entirely that that would be the perfect example where you say you can get breast implants or breast reduction unless the purpose of the breast reduction is to conform to the stereotypical sex traits of a different gender. Well, no, that's not going to fly under any circumstance. Right, right, exactly. So, look for that kind of hovering out there in the legal arguments

all right last up there was a fifth circuit opinion that is now going on bonk um and david it was kind of interesting i wanted to flag it for you and get your thoughts this is a white high school student in texas appealing the dismissal of his complaint against austin independent school district alleging that he was subject to race-based harassment and retaliation once he reported that harassment. The panel at the Fifth Circuit affirmed the dismissal of his complaint, i.e. you have no claim, bye-bye. The fact that the Fifth Circuit is taking this on bonk is pretty interesting. Now, if you looked at the lineup of the panel, this would be a little less surprising. The panel was King, Stewart, and Haynes.

This is not a particularly representative panel of where the Fifth Circuit is these days. I'll just put it that way. But claims from this student, I mean, first of all, are really upsetting. It doesn't mean they're legally cognizable, but they're definitely upsetting. Even if I sort of imagine the other version of this, which is the student is obnoxious, the student would get bullied for something no matter what, They just picked this to bully him about. It doesn't matter. Bullying is sad and yuck. So basically, this kid in junior high school shows up to class one day wearing a red Make America Great Again hat. And his school life from that point forward falls

apart. And he sticks to his guns. He brings a Scalia poster to school one day. He talks about his Christian faith. He talks about being a Republican. He talks about how he likes Donald Trump. His friends abandon him. One of them turns out to then become his main bully who keeps trying to trip him in the hallway. Lots of people call him racist and homophobic and all sorts of things along that. But David, none of those are legally cognizable as race harassment. Right. And so in reading this, you almost just want to like toss out all the mean stuff that's being said to this kid as mean as it is. And and as horrible that the school not only didn't stop it or try to stop it,

but teachers were engaging in it as well. Many teachers, including the principal at various points, according to the allegations. The only question when you bring a race-based harassment lawsuit is, was any of this harassment based on your race? Right. And there was some evidence of that david

so for instance an aide in his math class miss kathy repeatedly called him whitey and said do you need help whitey or can't figure this one out whitey you know another a student pointed to the cross around his neck and loudly stated i don't like that you're forcing your religion on me uh he was left in tears when his former best friend now chief bully created a meme that had him wearing a hooded ku klux klansman outfit and that student admitted to creating the meme because his father had told him not to be friends with anyone who was conservative you see how like all of that conflates each other right like well is it about him being conservative or about him being white because unfortunately the you're bringing a race based retaliation claim here yeah so and you know they bring this to the principal multiple times

and again this is according to the student's version of events. On one occasion, the principal yanked one earbud out of the student's ear and stated sarcastically, Are you listening to Dixie? The principal then walked away laughing to herself, and other students witnessed the entire incident. From that point forward, it almost gave permission to these other teachers. One teacher said she was getting concerned about how many white people there are. Things like this. So David, again, let's say 95% of what's in this opinion and the factual side is not race-based.

It looks politically based to me. By and large, they were upset that he was a Trump supporter. But 5% might be race-based comments here and the panel basically holds those race-based comments clearly were derivative of the political part and now it's going on bonk what do you think just go so yeah this is another spaghetti case so there's a whole bunch of bad stuff thrown out there about what happened to this kid, but we have to parse it. And I think it's repugnant what happened to him. Just repugnant. You have a middle school-aged kid wearing a Making America Great Again hat,

and then his life has turned into a living hell, again, according to these allegations. Utterly, totally unacceptable. Okay, I had just a couple more of the spaghetti things. Yeah. He wore a Ted Cruz t-shirt one day to school and he was kicked and he asked a teacher in his class if he could write a paper on the second amendment and the other students in the class started chanting school shooter school shooter while the teacher looked on in silence yeahrible. Full stop. I'm very curious as to why this was a Title VI racial harassment case only and not also a First Amendment retaliation case.

That puts aside the kid bullying. You don't have a First Amendment right for kids not to bully. But the actions by the principals, the actions by teachers, wearing a MAGA hat, unless it's violating a dress code, is First Amendment protected activity. And he has been receiving retaliatory conduct from state officials based on that first amendment protected activity now there's no obligation to protect you from politically motivated bullying necessarily unless um you know you're i i need to think through that more fully but as a general matter if you're talking about your your peers harassing you because they don't like your politics, you just don't have a right to protect yourself against

that. But a principal, et cetera, yeah. And then the Whitey comment to me, Sarah, I think if you sub out Whitey for a racial epithet directed at a minority, it's hard for me to see a district court dismiss, or it's hard for me to see a district court dismiss, or it's hard for me to see a court of appeals dismissing that case. Now, the defense would be that was all derivative of politics, but if it was derivative of politics, that should loop you straight into the First Amendment retaliation element of this. So, I'm very curious as to why, and maybe there's an attorney listening to this podcast um listening to this podcast who can fill us in on this but i'm very curious why this was title six not also first

amendment because of the state action surrounding uh because you know the the actions by state actors surrounding his political point of view so i think the Title VI element of this is close. It's close because the standard for harassment is pretty high. But the First Amendment retaliation aspect of this I thought would be pretty strong. So I'm very

curious about this. If I was bringing this case, I would have brought Title VI and First Amendment. That's how I would have done it. Yeah, I would like to rewrite this whole opinion, take out all, you know, you can include in the facts, he was bullied in school for being a Trump supporter and being a Republican. That included his support for President Trump, Ted Cruz, and Antonin Scalia. You know, just like, fine. But none of those are at issue here today. What's at issue is race-based harassment. Here are the allegations that actually touch on one's race.

Walk through those things in isolation. Then I want to separate out the difference between what students are saying to him and what teachers or administrators or state actors are saying to him. Now, it's not that it's irrelevant what the students are saying, but it's only relevant,

and again, in the race-based harassment context, if the teachers are somehow encouraging, you know, there still has to be a state actor element, as you know, David, and the harassment has to be pervasive. There's an argument that one teacher calling him whitey twice maybe doesn't reach that, but I totally agree with you david the first thing my mind went to is just imagine a teacher using the n-word twice in class you struggling there whitey that alone would probably reach a plenty pervasive harassment now that does not say that i don't see a difference between saying whitey and a word that i'm literally not saying on this

podcast you know like clearly there's a difference i'm willing to say that I don't see a difference between saying whitey and a word that I'm literally not saying on this podcast. You know, like clearly there's a difference. I'm willing to say one out loud. But nevertheless, they don't really grapple with that in this opinion. So, yeah. It would surprise me if Judge Ho doesn't write something about the First Amendment elements here. I think that's right. Yeah.

It's pretty gross. I'll just say, set aside then the legal context. This is a story of a lot of teachers, including the principal of the school, beating up on an eighth grade kid that they didn't like. I don't really care why they didn't like him. Yeah. Maybe he was just a

loser and obnoxious and it had nothing to do with his politics i'll i'm very open to that possibility too it's literally your job not to beat up on kids what's wrong with you oh my gosh i mean think about the lifelong damage done to somebody in that age of facing that kind of comprehensive bullying and harassment because you i mean from adults it's it's gross it is gross it's utterly unacceptable and i don't care if the kid was the most obnoxious kid in the world suspend him for violating school rules if he violates school rules but But you do not treat kids like this. It's just, it's unbelievable. And sometimes the law does not provide a remedy for all the mistreatments that people suffer in life.

I think it's pretty clear if these allegations are remotely true that he suffered severe, grossly immoral mistreatment. The question is, was it unlawful? And I'm actually, I think that once you include the Whitey slur, and then again, I keep going back. Why isn't there a First Amendment element here? Why is that not there? So I do think there's a legal claim here, but we'll find out on Bonk Fifth Circuit.

It'll be an interesting oral argument, one that I'm eager to tune into. And so, David, that's our four top today. Love it. We did it. We did it. We got through all four. Next up, we will have a live podcast with some summer associates at a top-tier Washington, D.C. law firm later this week. So, look forward to that as we do a little Supreme Court roundup. I like when we have live audiences because I think it forces us to explain things more and explain some of our priors more.

But this will be in front of summer associates. So they're like already the best of the best and law students. And it's a harder audience, much harder. It's like doing a podcast on weapon maintenance to SEAL Team 6. But we also have some great guests lined up for the rest of the month.

I won't spoil it now, but we're going to do some deep dives with some really nerdy, interesting lawyers on some law topics before we get to August. So lots to do this month. And when it comes to the Supreme Court, I still want to go back on some of these cases to retouch on overbreadth in the First Amendment context.

And we didn't even get to the personal jurisdiction case. I know we need to. Don't worry, we're going to do it. We just wanted to get someone qualified, frankly, to talk about how important that personal jurisdiction case will be to basically every in-house counsel in America. So don't worry, it's coming.

And thank you for listening. Thank you for making this such a popular podcast while allowing us to stay weird and nerdy and happy and excited. It's a treat. And someone asked David what it's like to prepare for this, like how much time it takes. And it's sort of like cramming for a law school exam twice a week. But some of the classes you're just more prepared for than others.

And you're kind of trying to get notes from some of your classmates, some of which like send you their notes right away. Some of which are like, they take too long. And Slack is like our group outline. Yep. Yep. Yeah. And like David Latt's in class with us. And I mean,

it's a fun class, but yeah, this is, this is the most fun podcast to prepare for by far and brings me a lot of joy. So thank you, everyone. And also, I am 31 and a half weeks and it is very pregnant. That is extra pregnant, David. I got to tell you. So pregnant. So large. It's so hot. I'm so large. I'm so uncomfortable. And this guy just kicks all day and all night long. I feel like I don't get breaks. Okay. So Sarah, last time when the brisket was fully cooked, you missed no podcasts.

Yeah, but I have mixed feelings about that because I missed no podcast a because it was june it was mid-june we had opinions coming out i did not have a choice and i mean for myself like i didn't want to miss and then second for sort of my own family mental health situation it was in the middle of the pandemic i wanted something to do i'd been trapped in the house for three months i wasn't getting out of the house anytime after having the baby either. So like this was my outlet. That was for myself. It also forced, you know, Scott to figure out where the diapers were, though literally last night he asked me where the diapers were. Our son is three years old. But here was the problem. I felt like I maybe did not set the best example. And I didn't think about

the example I was setting. This is not meant to be like, ooh, tough women don't take maternity leave. Not at all. It was very sui generis to my situation, me personally, in the middle of a pandemic, all of those things. And so then I was like, oh, no. All these other people are going to be like, oh, well, that's what you're supposed to do is not take any time off. Well, that's stupid. I get to work from home and not wear pants if I don't want to.

And it's only a couple hours that we actually have to talk. The rest of it I can prepare for by reading. So it's totally different thing. So yeah, so I don't know what this time's going to look like. We'll see. No, well, I cannot wait know what this time is going to look like. We'll see. No, I'm I,

well, I cannot wait to meet the new brisket. It's so exciting for those of us who are on the outside. It's all joy. And for you, it's your, you have the discomfort. We have all of the joy and we cannot wait to meet the new baby. Brisket one,

as he is referred to. So he, I was like, Hey Nateate do you want to come over and like feel popcorn he named him popcorn do you want to feel popcorn kick love it he goes why is he kicking is he trying to get out i was like kind of that's what it feels like and then he told popcorn it wasn't time to get out yet you have to keep growing stay i was like thank. That's very helpful. Yeah.

Yeah. Yeah. I love how, I love the little names. Lila called Ezra tummy baby. Tummy baby. Yeah. Nate is very proud to tell other people about his brother coming. But I actually, I think Nate and I probably have the same percentage of understanding of how much our lives are going to change.

I don't know, like 20%. Like we sort of get about 20% of what's coming and 80% we're in the dark, both of us. So I don't think it's fair to make fun of him for not getting it. Cause I don't either, but it's 100% joy says the person not doing this. That's true. That's true.

All right. With that, we will see you next time episode coming later this week live podcast