Advisory Opinions - Bong Hits 4 Jesus

Episode Date: November 19, 2020

Rudy Giuliani has come out of retirement for the first time in 28 years to litigate on behalf of the Trump campaign. To say his gears were a little rusty would be the understatement of the century: Giuliani walked into court this week and couldn’t remember the name of the judge, couldn’t remember the name of his opposing counsel, couldn’t remember the meaning of “opacity,” and couldn’t argue the proper standard of review in the case. As our podcast hosts remind us, effective lawyers not only know how to make a constructive argument, but also tailor their advocacy to the humanity of the judge. Giuliani did neither of these things. After catching up on the latest election litigation disputes, David and Sarah discuss imminent lawless action in the context of the First Amendment and two of their favorite television shows. Show Notes: -Morse v. Frederick. Learn more about your ad choices. Visit megaphone.fm/adchoices

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Around 1860, Nearest Green taught Jack Daniel how to filter whiskey through charcoal for a smoother taste, one drop at a time. This is one of many sounds in Tennessee with a story to tell. To hear them in person, plan your trip at tnvacation.com. Tennessee sounds perfect. You ready? I was born ready. Welcome to the Advisory Opinions Podcast. This is David French with Sarah Isker, and we are on day 732 of the United States presidential election. But before we dive into what's

going on in the election, we're going, well, let me just preview the whole podcast for you. We're going to start, I think, with this question that Sarah's going to ask me, and I don't know what it is. Then we're going to talk about what is the latest in the legal battle over the presidential election. Then we're going to move into a discussion, and trust me, y'all, you're going to like it. It's going to be interesting, and people ask me about this all the time about imminent lawless action in the context of the First Amendment. And don't change that dial. You're going to like this discussion. And we're going to wind up with a conversation raising a really fascinating point that Sarah brought up about two great TV shows, one on Apple TV, we've already talked about some, Ted Lasso, and the other one on Netflix, Queen's Gambit.

So are we going to go ahead and just deliver the spoiler alert now? Sure. Spoiler alert. So if you've not seen those, if you want and you don't want to know what they're about or some of the nuances, just turn off the podcast when we start talking about Ted Lasso and Queen's Gambit. But they've been out for a while now, so enough of you will have seen them to where I think you're going to really enjoy this conversation. But let's start with the question. Sarah. Yeah, I mean, maybe this is too much of a buildup, but I thought it was really interesting that during the Amy Coney Barrett hearings, basically the right kept begging the left

to make her religion a big deal so that they could benefit from the backlash of the left making Amy Coney Barrett's religion a big deal. And anything would do, right? If they asked any question about the specific you know church she went to there was um you know some questions raised in some like very specific news outlets about this like type of catholicism that she practiced and then everyone quickly dropped it and decided that was a really bad idea. And nothing really ever came of

it. Right, David? Right. Fast forward, not two months later, and the guy running for the Democratic special election in Georgia for the Senate seat is a pastor at a church. Yep. And every day I have seen a headline in Fox News and some tweets that he is an extremist and making a lot out of both his religion and his sermons. And I am curious whether you see that as being hypocritical or if you see a difference. And I just wanted to know that answer from you. Why are you, Sarah, ruining my Sunday French press? Oh, no. Yeah. No, I'm going to dive into this on Sunday as to when is it acceptable to consider a candidate's religious point of view. And when is it not? What is the line between, say, religious bigotry, which would be, say, for example, I don't want any Catholics in public office, you know, religious bigotry versus this person has a point of view that is informed by his faith, but that has public policy

ramifications, which I think is a valid... You have this spectrum where on one end is, I don't want Catholics, or I don't want Baptists, or I don't want Jews, or I don't want Muslims, which is your flat religious bigotry, versus someone that might say, for example, my faith tells me, my faith teaches me that I'm a pacifist. Okay. And then the question is, well, what, what would then be your position on funding the military? What would be your position on NATO? What would, which, so what you would have is a faith-motivated position that has public policy implications, which I think is fair. What I don't like, Sarah, what I don't like is taking, I think, and what really ignited this was Marco Rubio, I believe, sent out a tweet that had, I think it was all of a 26-second clip of a sermon.

And where his point, the point that Warnock was making could be taken in a couple of different ways. And Rubio took it in the worst possible way politically and threw it out there for public consumption, like, look at this 26 seconds, what an extremist this guy is. And I don't like this. Here's a snippet of a sermon divorced from its theological context, throwing it into the public square and saying, look, look, look at this extremist. I do think that smacks of hypocrisy, actually, because there was an interpretation of that sermon. acts of hypocrisy, actually, because there was an interpretation of that sermon. And what Warnock was doing was he was talking about you can't serve God and mammon.

You can't serve God and money, which is a standard. In other words, God is very standard. God is up here. Money is way down here. Doesn't every church give that sermon about once every couple of years? Oh, yeah. But then he adds you can't serve God and the military. Well, there's two ways to take that. You can't serve God and be in the military, which does that mean you're a pacifist? Which is a completely, by the way, pacifism is a completely, totally valid, longstanding stream of the Christian tradition.

Go Quakers! Yeah. You would not want to call pacifism extremism. It is a law, and it has been accommodated in American law, even in the context of the draft. I don't need to go into it, but it's either saying— Wait, including the very very wonderful movie hacksaw ridge right about the quaker pacifist who wins the medal of honor right i believe so um

he's either are you saying he's a pacifist or is he saying again you put can't put god over i mean you can't put anything over, whether it's money or military service, but we don't know what he was saying because it's a 26-second clip. So yeah, I really didn't like that, especially after people had their antenna up. And by the way, right after a wave of defense of Madison Cawthorn, I don't know if you saw this, Sarah, where he had talked about how he believes in evangelizing people of all other faiths, which is, again, a completely standard part of Christian theology. But people rush to put the best possible defense on Madison Cawthorn and then flip it around and

are forwarding around this clip of Warnock taking it in the, I don't even want to say worst possible light, but the most politically damaging possible light. I just found it very strange that they're coming in such close proximity and nobody seems to, I mean, really, truly,

we just had a conversation about how we're not going to have religious tests in this country for office. And I thought I strongly agreed with that when it came to Amy Coney Barrett. And I'm just bewildered how now it appears that I'm insane that that didn't happen. And nobody else seems to remember it but me. And here we are two months later and everyone's like, religious tests. What? I mean, I think the short answer is, and which I'll write out in a much longer way Sunday, is that people's public policy positions

are informed by a variety, are informed by their worldview. And regardless of whether your public policy position is informed by a religious worldview or informed by a secular worldview, your public policy position is informed by a religious worldview or informed by a secular worldview. Your public policy position is absolute fair game. But what should not be fair game is your identity as a Christian, your identity as a Jew or as a Muslim. That is where you're drawing the line. And then in between those two sort of clear positions is a lot of haze where people sort of try to make a lot of hay. And so I'm going to try to make this pretty

clear, as clear as possible, my perspective on this as clear as possible on Sunday. I'm pumped for it. All right. Well, let's talk about some Rudy Giuliani. I'm pumped for it. All right. Well, let's talk about some Rudy Giuliani. Yes. Okay. So we have this really fascinating dynamic in play where the Trump campaign, as we have talked about, is very busy litigating. But what's fascinating, which is, you know, we've talked about the litigation. We've talked about, you know, that it is not, these cases do not have, they're not, they're not, it's not possible for these cases to overturn the election result. They don't even ask in general. They don't even ask for the kind of relief that would turn over the election result

when they do ask for the kind of relief that would overturn the election result it's has no connection with a legal doctrine that would enable that relief and it shouldn't be surprising but it is kind of mildly surprising i guess that the trump campaign seems to be front of a judge and make legal arguments. And let's say, I'm trying to think of some movies where somebody comes out of retirement or like the athlete in winter pitches one last big game. What was that Kevin Costner movie? Anyway, well, it didn't go like that.

It was not Kevin Costner pitching one last big game or Robert Redford in the natural going out with the home run that ignites all of the stadium lights. It was not that, Sarah. He walks into court. He can't remember the name of the judge. He can't remember the name of his opposing counsel. He just calls him that man who was angry at me. Doesn't remember the meaning of opacity. All of these things are like sort of little nitpicks, but what's really critical is he didn't know and couldn't argue for the proper standard of review in the case. And if you're an advisory opinion listener worth your salt at this point, you know that's a big deal. And I got to be honest with you, Sarah, and we talked about this a little bit in the green room. Part of me was angry at the spectacle

that Rudy would come in on behalf of the president of the United States and just, it was a clown show that this is absurd and there are millions of people who believe that there's something real here when there's not. That makes me angry.

On the other hand, there was also a part of this that made me sad. That's sad to see Rudy in this state. I mean, it's sad to see what he has become because there was a time when he was arguably one of the most critically important politicians in the United States of America who helped transform New York City and helped get America through 9-11. And this is where we are. So I was both angry and sad at the same time. Yeah. I mean, we've talked a lot about how bad facts make bad law. We haven't talked a lot about how bad lawyers can make bad law. And I actually do find this interesting that, you know, if you are into voter ID or signature matching or whatever your pet issue is on maintaining vote security legal issues.

Let me use the example that's happening right now, which is what to do about absentee ballots that are received after election day and how that interacts with state law and federal law and things like that. What's happening now is that the Trump campaign and allies are filing so many borderline frivolous lawsuits. And then when they are getting their day in court, you have sort of a Rudy Giuliani-esque

situation where the judges are getting very frustrated. The advocacy is of such poor quality that it is, you know, almost pro se litigation at this point. Have we reached prisoner pro se litigation levels of advocacy? Honestly, like the Giuliani thing was not good. It was really, really not good. And so what's going to happen is that some of these claims are not crazy. Like whether different counties can have different curing standards for their voters. That's actually a real legal question. But we're not going to have a real legal discussion about it. We're certainly not going to have a real legal answer about it.

Because you don't have prepared advocates in the courtroom, which is how our whole system functions, is by having two sides debate a question and then having a neutral third party decide that question. Well, it's only a one-sided debate at this point, basically. And second, you have judges that now are going to assume that the cases being filed by the Trump campaign and their allies are frivolous because so many of them have been frivolous. and their allies are frivolous because so many of them have been frivolous. And so you could end up in a situation where they say like, oh, nope, there's no problem with different counties having different cure provisions.

And you can accept absentee ballots forever after an election, not because that's the right legal outcome, but it's a version of bad facts make bad law. And this is bad lawyering, frivolous lawsuits make bad law because out of the 24 or so cases that have been decided, the vast majority, and even in the ones where they did have viable claims or interesting legal claims, they would throw 10 other claims in that weren't interesting. And so how is a

judge who is human and has human emotions, including frustration and eye rolling as those emotions, are they really going to treat nine of those claims as frivolous? But then the one claim that actually has some point, are they going to pick that out of the ash heap and dust it off and say, now I'm going to write a 30-page opinion taking this really seriously, even though I didn't really have any advocates making a good legal case. And in fact, at some points, the advocates are basically lying to me in court until I asked them not to, you know, and so that's what I find frustrating about all of this from a legal perspective. This is once again, just bad for the country, set aside the election, because it's bad for our legal system. Yeah, no, I think you raise a really good point about bad lawyers can make bad law. And this is something that is a reality in the lived experience of the American legal system far more than people realize. Those of us who focus us who focus and, you know, over time,

I started my legal career as a commercial litigator for a big firm and first in Tennessee, then in New York before I moved over to Kentucky. So I spent a lot of time in big firm law. And one of the things that you get used to in big firm law is you get used to taking on other big firms. And so in litigation, so it's big law v. big law. And you've got teams of lawyers, many of them who graduated at the top of your class and the papers are sharp, the arguments are excellent. And it's easy to, in a way,

except for the sheer amount of work that just crushes your home and family life. But other than that, other than that, putting that aside, it's kind of easy. You can sometimes idealize the legal system because you go into these majestic federal courtrooms. You have these very sharply prepared arguments with perfectly prepared papers. But then every now and then you would step out of that world and into the legal world where the vast majority of people interact with the law. And you really began to see how contingent justice is on the quality of representation. And I know that judges try not to let their personal feelings for the advocates,

even advocates who have lied to them, even advocates who they have sanctioned, they try not to hold that against the legal argument or the client. But again, they're human. And an advocate who has sat there and lied to the court or been sanctioned by the court or been rude to opposing counsel, you know, it's the same thing as any other human interaction. You don't like that person, and so you discount their ideas a little bit. Yeah. I mean, the best lawyers are the ones who not only know the law, not only are able to construct an effective argument, but also understand the humanity of the judge, including perhaps their own personality,

their likes, their dislikes, and they do everything that they can to make it easy to rule for me and hard to rule for the other guy. That's what you do in effective representation. I mean, I still maintain that the Bostock decision represents one of the better examples that I've ever seen of somebody tailoring their advocacy to the target justice and making it easy for that justice to rule for them. And I'm speaking of the way in which the advocates

in the Bostic decision who were seeking to extend protections of Title VII to LGBT individuals, they aimed their argument at Justice Gorsuch in a very precise and very particular way that you could see, oh, they've just paved a yellow brick road. I don't know if he's going to take it. I don't know if he's going to take it. I don't know if he's going to be persuaded by it. But Rudy went in and did the opposite of that. Yeah. All right, so should we move on from the Rudy debacle to the Wayne County, Michigan?

Debacle. Debacle. So y'all know that David and I, you know, text through our days and nights, even when we're not hosting a podcast, because we're, we're buddies in real life as well, or at least zoom 2020 life, whatever this is that we're living through. So, um, many of you saw that these two Republican members of the Wayne County canvassing board refused to certify the vote. And so David and I are texting back and forth like, OMG, blah, blah, blah. Are you seeing this? And you know, two hours later, they then do sign

the certification and we're like, oh, well, uh, weird. Okay. I guess we'll go to bed now. Night, night. And then today, David, they're now saying that they regret signing it. I don't know. Like they've signed it. That's done. But they're now saying they wish they hadn't signed it. They were coerced into signing it is sort of their argument, but it's not really real legal coercion. So I don't know. So here's where the plot thickens. So initially, the two GOP members of the board said, no, they're not going to certify the Wayne County, Michigan election results. Something that they ultimately wouldn't have any legal effect unless the state board also refused to certify, but was egregious. This is all a pointless conversation. Yeah.

Yeah. But it was still egregious. Just egregious. So the internet erupted and immediately these two individuals trended on Twitter. Things got very heated, directed at them. I have no objection to a heated argument against them, but then people tried to apparently dox their children. It got very ugly, very fast, as things do in 2020.

They changed course within the space of a couple of hours. Well, apparently on Tuesday, while all this is going on, Sarah, and while we're texting about what the heck, and I do appreciate that you did not tell listeners that I initially misidentified Wayne County as Nevada. He's like, can you believe what's going on in Nevada? And I was like, what's going on in Nevada? And he's like, this Wayne County stuff.

And I was like, Wayne County is Detroit. I know Wayne County is Michigan, but I just want to come clean with the audience. I was never going to mention it, David. I was never going to mention it. I just want to come clean. But so apparently,

while all this is going on on Tuesday, one of the commissioners got a call. Commissioner Monica Palmer, she got a call from Trump. Trump calls her, the President of the United States, and then she signs an affidavit asking to not certify the election.

She says she talked to Trump, but she felt no pressure to change her vote. So the president of the United States calls these commissioners. Your thoughts. You're just shaking your head. Yeah, this doesn't matter. you're just shaking your head. Yeah, this doesn't matter.

You know, like the, whether Wayne County certifies their vote, it makes me angry because it just leads to bad future stuff in my view. But in terms of people who are listening to this podcast, you know, I have, you know, text chains with my friends

who aren't attorneys, who aren't politicos, and they're like, oh my God, does that mean that Trump's going to stay in office? No, no, it doesn't. I will say this, David, and I don't mean it lightly. The most probable outcome by a lot is that Joe Biden is the next president of the United States. by a lot, is that Joe Biden is the next president

of the United States. The second most probable outcome is not that Donald Trump is the next president of the United States. The second most probable outcome is civil war before Trump

is able to overturn such clear election results. Yeah. Far, far less close than 2016. Yeah. Far, far less close than 2016. Yeah.

So, you know, I don't know that that's a comforting thought, but for some people, I think it puts us in perspective, like Donald Trump

doesn't stay in office on January 20th. No. That's not really one of the options. No, that is not an option. I was,

I was sort of thinking through this, this latest push, the Hail Mary of Hail Marys one of the options. No, that is not an option. I was sort of thinking through this latest push, the Hail Mary of Hail Marys, is even though Trump lost Michigan by about 150,000 votes. I mean, this isn't close. Even though Trump lost Pennsylvania

by almost 70,000 now, far more than he won Pennsylvania by almost 70,000 now, far more than he won Pennsylvania by in 2016. The latest Hail Mary is that the legislatures of the state would pick their own electors in spite of state law and in spite of the outcome of the election and in open defiance of any court rulings preventing them from doing so. And that there would be somehow an idea that A, these legislators would do this. B then, therefore, that the Supreme,

the Chief Justice of the Supreme Court would then swear in Trump under those terms. And C, that everyone in the United States would go, well, darn, we thought Joe Biden was going to be president, and I guess it's Donald Trump. I think you're exactly right. And I guess what concerns me about the Wayne County thing is not that it has any legal effect. It does not.

But it concerns me in terms of what those state legislatures will do. That I think it doesn't bode well. And I don't like that because it just gets messier and messier, even if I think the end result will be the same, which is Joe Biden is sworn in on January 20th.

Because remember, you know, again, assuming those legislators ignore the law and ignore court orders to the contrary, they would then send in sort of a rump list of electors to the president of the Senate under the 12th Amendment. And so, you know, this is going to move from body to body. So you'd have to have basically three state legislatures refuse to follow the law and refuse to follow court orders. And then the senators, the president of the Senate would have to accept that as valid. You know, I don't think any of that will happen. But as you know, what if it's one state legislature

that does it? Well, that just makes it messy. And now, like, what do we do about that? What kind of precedent does that send? What happens in 2024? Is this basically a slow fracturing? You know, if Fort Sumter just happened in really slow motion? And so that's why the county canvassing thing matters somewhat. It's a mood problem. Yeah. It illustrates how far even a local GOP official is willing to go to placate the president. Now, I will defend it for a second. to placate the president. And that's- Now, I will defend it for a second. They don't want to certify the vote

because the number of people who signed in in the voter rolls doesn't match the number of votes in the end. And each, you know, for a lot of the different precincts, they're off by a couple votes. And so I think what they would say is, look, we're not saying we would never certify

the vote because Joe Biden won it. We just want these two numbers to match. And once those numbers match, we're happy to certify it. And all we want is the Secretary of State to come in and make them recount the votes so that the two numbers match. Otherwise, we're certifying. We're saying that this is the accurate total when, in fact fact it's clearly not an accurate total. That's all accurate. I think that's true. But it just totally ignores what's going on. Well, and also, as was explained at length in all of this, they voted to certify the results in the primary with greater discrepancies.

These same people. Of course. Yeah. So, yeah, that's, it's all pretext. It's all, it's all pretext that has a totally legitimate pretextual argument to go along with it. But, but that's why in the end,

when they did sign the certification, they then also, everyone agreed to ask the Secretary of State to look into those discrepancies at some future time. I think that's exactly the way to handle it. Hey, this isn't going to change the outcome of any election, presidential or any of even the local elections. But we do seem to have a problem here of people either not signing in to the voter registry or something else that's that's flipping, you know, five, six, 12 of these ballots. And that probably shouldn't be OK, because at some point we are going to have a close election and we need to get this under control now.

I have no problem with that. Right. I mean, yeah, certify because it's not going to change the outcome at all, but then reconcile. Yes. Certify and reconcile. I mean, it's not going to change the outcome at all, but then reconcile. Yes. Certify and reconcile. I mean, it's not a hard solution. Now, there's something that, you know, when you're talking about this, that the American people would not, the majority of the American people would simply not consent to the truly stolen election, which means that Trump is not going to be president of the United States. Let's just put this in perspective. If the same thing were happening right now, let's say this was 2016 and you had all the same margins and Hillary Clinton was calling these members of these local boards, and then they were actually openly talking about a use of Democratic legislatures to block Trump being sworn in by putting their own slate of electors out

there, you would have open talk of Second Amendment remedies. It would be everywhere, everywhere, everywhere on the right. I mean, that's how egregious this is. And I think that one of the reasons why the temperature is not there yet is that there is still enough faith in the system and still enough faith even in the Republican legislatures of these states that this isn't going to happen. But watch the temperature. If one of these state legislatures tries this stunt, watch the temperature of this country go hot fast. And I hope and I pray that they know that. I hope and I pray that they know that. And there's one other thing though, Sarah, and this is in the background of a lot of what's happening, and I don't think people in the media focus on this enough. It is a fact of life that if you are a public official

and you, and you're especially a GOP public official, and you defy Trump, say for example, the way the Secretary of State of Georgia is doing now. Your life gets ugly fast. The death threats that come in, the attacks on you and your family that come flying in are very real and very scary. There was an article not long ago in the Washington Post that said the most endangered CIA employee in all of the CIA in 2020 was the whistleblower who helped trigger the impeachment.

And that was because of the avalanche of threats that came in directed at him. This is something that I don't think people focus on enough. It is essentially, it is a reign of terroristic threats that are visited upon the heads of people who defy Trump. It's not just Trump's Twitter feed. Trump's Twitter feed triggers a reign of terror on people's lives. And that has an effect. And so, you know, I am one...

But David, in fairness, pro-Trump people get that as well. Oh, for sure. For sure. Like, this is not just people who defy Trump. This is people who support Trump. Well, as I talked about the doxing of the... That's right. Yeah. So both sides are, as far as I'm concerned,

equally guilty at this point. And it's not good and it doesn't bode well, but it is a decent enough segue into V for Vendetta. All right, let's take a moment and thank a new sponsor of the Advisory Opinions podcast, Headspace. Life is stressful. podcast, Headspace. Life is stressful. It's stressful under normal circumstances, and it's particularly stressful in 2020. You need stress relief that goes beyond quick fixes. That's Headspace. Headspace is your daily dose of mindfulness in the form of guided meditations and an easy-to-use app. It's one of the only meditation apps advancing the field of mindfulness and meditation through clinically validated research. So whatever the

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family members can share Aeroplan points together. With the TD Aeroplan Visa Infinite card, earn up to 50,000 Aeroplan points. Aeroplan family sharing is a feature of the Aeroplan program. Conditions apply. Offer ends June 3rd, 2024. Visit tdaeroplan.com for details. Conditions apply. Offer ends June 3rd, 2024. Visit tdarrowplan.com for details. So let's talk about the political unrest in V for Vendetta. Would you like to give a quick summary of the plot there? Wait a minute. V, oh, no, I've never seen the movie. a movie. Well, we got a great email from a listener and I will read it to you. Hey guys, if you're ever looking to do a mailbag episode for AO, I have something I've been wondering about inspired by the recent Guy Fawkes day in the criminally underrated graphic novel and movie V for Vendetta. The protagonist calls on citizens to, quote,

stand behind me one year from tonight outside the gates of parliament, presumably for criminal mischief. If he was in normal America instead of dystopian United Kingdom, would that have been protected under the First Amendment? And David, can I walk us through some of the Supreme Court cases back in ye old days? Yes, please. I'm going to start in 1927. No, I'm not. I'm going to start in 1919. So in 1919, these guys were handing out pamphlets that encouraged people to dodge the draft, basically. And Oliver Wendell Holmes, then a justice on the a clear and present danger of succeeding, they could be punished.

As in, those guys went to jail. And we had the clear and present danger standard, which, of course, was very important because of the future Jack Ryan movie starring Harrison Ford of the same name. Book and movie are very good. Very good. Okay. So, moving forward forward about 10 years we're now in 1927 and as with so many of these first amendment cases this is against a woman who was trying to establish the communist labor party of america in california and she was charged with violating the California Criminal Syndicalism Act because the Communist Labor Party of America advocated for the violent overthrow of the government. Not surprising. The unanimous court upheld her conviction

and invoked the clear and present danger test, but even went further and said that by utterances inimicable to the public welfare, tending to incite crime, disturb the public peace, or endanger the foundations of organized government and threaten its overthrow, words with, quote, bad tendencies can be punished. This is not good.

But it just goes to show you, by the way, David, from the very beginning with the Alien and Sedition Acts that John Adams favored through our history with the communism, the Red Scare,

the First Amendment has been beaten and bruised over time okay fast forward to 1969 the court changes dramatically between 1927 and 1969 as you can imagine 1969 is the you know heyday of miranda and gideon right to counsel and all of these things that we now know and love, not surprisingly, another case comes to the court on the First Amendment. And what I like about this case is that it, you know, we talk a lot about the fact that

we don't need First Amendment protections for speech we all agree with. We need First Amendment protections for the speech that we all loathe, hate, want to punish. And this is such a great example about that because Clarence Brandenburg was a KKK leader in Iowa, sorry, in Ohio.

And he talked to a reporter at a Cincinnati television station. They came out, they filmed it, his rally, and his speech made reference to revengeance against various groups that he used words for that weren't good. It's the KKK, I'll let you guess. He also claimed that our president, our Congress, our Supreme Court continues to suppress the white caucasian race and announced plans for a march in washington to take place the following fourth of

july and so he was charged under ohio's criminal syndicalism now i say i mean am i even close i don't know i think i've always called it syndicalism. Oh, you use that a lot, that word? I mean, when am I not? I mean, you know, when my kids conspire against them, I accuse them, conspire against me, I accuse them of syndicalism. Fantastic. Well, this Brandenburg versus Ohio is the seminal case.

This establishes the two-part test that the speech needs to be directed to inciting or producing imminent lawless action. And the speech is likely to incite or produce such action. And his conviction was overturned that it's possible that there might have to be some revengeance taken was not inciting imminent lawless action, and that him discussing a future possible march in Washington, D.C. was not likely to incite imminent lawless action. Okay, we've had two major cases since then. Hess v. Indiana in 1973. They're protesting in the streets and the cops move them out of the streets. And because I don't want to get another E rating on our podcast, David, I will substitute in a word for what the protester

said. We'll take the effing street again or later, there was some discrepancy over what he might have said, but we'll take the effing street again. And the Supreme Court ruled that that was protected under Brandenburg. It amounted to nothing more than advocacy of illegal action at some indefinite future time. indefinite future time. So whether he said again or later, he could have meant, you know, we'll vote these people out of office and then we'll take the street metaphorically again. Who knows? Since there was no evidence or rational inference from the import of the language that his words were intended to produce and likely to produce eminent disorder, those words could not be punished by the state on the grounds that they had a quote tendency to lead to violence. So a tendency to lead to violence, not enough. All right, 1982, NAACP versus Claiborne Hardware. This one's interesting because the NAACP guy,

Charles Evers, is threatening violence against boycott breakers. And he basically says, you know, you break the boycott, we're going to break your effing necks. And they apply the Brandenburg test again and find that the speech is protected. Quote, strong and effective extemporaneous rhetoric cannot be nicely channeled in purely dulcet phrases. An advocate must be free to stimulate his audience with spontaneous and emotional appeals for unity and action in a common cause. When such appeals do not incite lawless action, they must be regarded as protected speech. Okay, so that's a rough summary of where all we've been. And the Brandenburg test is in

theory alive and well. And again, those two prongs are speech directed to inciting or producing eminent lawless action and that the speech is likely to incite or produce such action. Okay. So we're back to the V for Vendetta example, David, what do you think? Oh, it's not close. If you say, come in a year and we're going to take parliament or whatever the precise language was, that's going to be constitutionally protected. However, would that give law enforcement the ability to initiate an investigation, probable cause to investigate whether there's any overt acts that could be unlawful that would be a different thing but to say we're going to come in a year and rip this place to shreds or whatever that is not that's not imminent i don't think that's even close i think that's interesting i think i'm not necessarily disagreeing in the V for Vendetta example, but I would need to know more about what exactly he said, because I think it's a much closer call than you do. Interesting.

And I will tell you why. OK, go ahead. This is at the Supreme Court, although there's a very interesting 2002 dissent from denial of certiorari by Justice Stevens, who, of course, is no longer on the court. That's a case where it's actually, you know what McKinsey is, right, David? The consulting firm that goes around and helps businesses be more efficient. They charge a whole lot of money to do that. So this guy, Jerry Dean McCoy, he was the McKinsey of gangs, street gangs. He had been in a gang for a long time, and he would go around helping gangs to organize themselves. And it included advice on how to beat up members of rival gangs.

I mean, it's very entrepreneurial. You have to admit. Um, the district court and federal appellate court overturned his conviction saying that he was simply exercising his first amendment rights to teach how to organize and beat up other gang members. And in the denial from cert, uh, justice Stevens dissented and said that he thought that, um, this, uh, this idea that the speech was mere abstract advocacy because it didn't incite imminent lawless action was debatable. he said, surely debatable. And he also said, while the requirement that the consequence be imminent is justified with respect to mere advocacy, the same justification does not necessarily adhere to some speech that

performs a teaching function, which I just think is sort of a fascinating distinction that would be actually a pretty dangerous road to go down. Are you teaching lawlessness or advocating lawlessness? Those two seem pretty similar, at least a lot of gray area there. So I'm glad we didn't follow that. Yeah. But I think that you can think of the eminence on an axis. We think of the word eminent as referring to temporal time. But what we've seen in other cases is that it's like eminence on one action and concreteness on another. So on the one hand, if you say, you know, go beat that guy there now, that's clearly eminent lawless action. That's clearly imminent lawless action,

inciting imminent lawless action. If I say, hey, we should go beat up people in a year, that's not imminent. Fine. But the concreteness matters. If I say, a month from now, we're going to go to David's house and we're going to bring hammers and we're going to beat his door down with the hammers. And then when we get in the house, we're going to threaten David with the hammers. That is a very concrete plan. And while it's not as imminent, the imminence is, I think, emanated by the concrete nature of the plan. It appears more imminent because imminent itself isn't even a word that has a particular, all sorts of things are imminent that are way off. It's the concreteness of the plan. And there's some case law to back me up on this, David. So for instance, the Jewish Defense League offered a reward for the

murder or serious injury of any Nazi participant in a march planned in Skokie, Illinois, five weeks away. At a press conference, the Jewish Defense League guy, Irving Rubin, held up $500 bills and said he would give them to any person who, quote, kills, maims, or seriously injures a member of the American Nazi Party. And if they bring us the ears, we'll make it $1,000. The fact of the matter is that we're deadly serious. This is not said in jest. We are deadly serious. And the California appeals court said that five weeks was sufficiently imminent. Quote, we think solicitation of murder, even though five weeks away can qualify as incitement to imminent lawless action. And they didn't tie it to gravity. It was like the gravity of the nature of it. But time is a relative dimension

and eminence is a relative term and the eminence of an event is related to its nature. A total eclipse of the sun next year is said to be eminent. An April shower 30 minutes away is not. But I think the concreteness of it, five weeks from now, there's a march at this time. We want you to do this. If you bring us the ears, dear Lord.

Yeah. And so one more example from 2009 in United States v. Fulmer, this time in federal court, the Third Circuit. This was an animal rights group website that advocated electronic sit-ins where they could crash the websites if they all at the exact same

time logged on to this website. And so they provided a schedule for these sit-ins. They updated it. They had ongoing ones. And they said because the group provided information about the sit-ins at specific times, that that was intended to incite an imminent lawful, that was intended to incite an imminent lawful, unlawful action. And so again, it's not how close in time it is exactly. It's how concrete that is. And so I think in that case, to get back to V for Vendetta, if you said a year from now, we will meet here outside the House of Commons. Everyone is responsible for bringing dynamite and charges. We are then going to light the dynamite at 9 p.m.

with the goal of blowing up this building. I think that would be a really close call because it's so concrete and because the time is precise that perhaps that could meet the eminence test. I don't, well, as a practical matter, I don't think you would get there because as a practical matter,

what would happen is that there would be an investigation and if there was any overt acts in furtherance of, because if you're describing dynamite and things like this, if you say bring dynamite and then he purchases dynamite. Well, let me change the hypothetical because I don't want you to get off on the conspiracy overt act distinction here. I stand outside of parliament

and I say a year from today at 9.01 p.m., all of you need to bring dynamite and you're going to set the charge at 9 p.m. And here's how you do it. And I'm handing out a pamphlet to each of you that shows how you build the bomb and where you're each going to place it around parliament at 9.01 p.m. a year from today. But I'm not going to take any part in that. All I'm doing is giving this speech, organizing, exercising my First Amendment rights.

doing is giving this speech, organizing, exercising my First Amendment rights. Now charge me with something, David. I'm not charging you, Sarah. Whoa. I'm not charging you. Nope. Nope. So there's a couple of cases that I thought that was an awesome explanation, but let's branch off in a little bit of a different way. Because I want to talk about a case that drives me crazy. Okay. All right. When, you know, I believe that Schenck that originates the fire in a crowded theater, when people are quoting that fire in a crowded theater line,

little do they know they're quoting one of the worst cases for the First Amendment. I know. In the entire history of the United States. But there's another case. They've been more or less explicitly overruled by Brandenburg. Like Schenken, Whitney, or Dead Letter. Yeah. There's another case.

It's not exactly the Brandenburg situation, but I found this interesting. And then I'm going to get to the case that really drives me nuts. So there's a case called Watts v. United States. Again, 1969. And where an individual says he was a war protester, Robert Watts. He's at an anti-war rally in the Washington Monument. And he quoted as saying,

if they ever make me carry a rifle, the first man I want to get in my sights is LBJ. LBJ president at the time. And the Supreme Court held that that was not a true threat. That was, so the first amendment does not protect true threats, but that was not a true threat. It said it was crude political hyperbole. So we have a lot of room to engage and even sort of violent sounding hyperbole. But you know where you do not have room to engage and even joking about a particular kind of illegal activity, Sarah?

Drug use? Drug use in schools. Bong hits for Jesus. I didn't know where this was going, but I'm so happy it went there. Bong hits for Jesus. I didn't know where this was going, but I'm so happy it went there. Yes. This case drives me up the wall. Okay. So this is, so it's, let's rewind to a good moment in American history, the Salt Lake

Olympics. Okay. history, the Salt Lake Olympics. And my birthday, January 24th, 2002, in which I turned a very young feeling 33 years old, an Olympic torch relay goes through Juneau, Alaska on the way to the Winter Games. Torchbearers were, and I'm looking at the opinion right now, were to proceed along a street in front of the Juneau Douglas High School while school was in session. The principal permitted students and staff to participate in the torch relay as an approved social event. One of the students, a senior named Joseph Frederick, joined his friends across the street from the school to watch the event. Some of the students became rambunctious, etc., etc.

As the torchbearers and the camera crews passed by, Frederick and his friends unfurled a 14-foot banner bearing the phrase, Bong Hits for Jesus. Okay. Sarah, what does that mean? Nobody knows. Nobody knows what it means, but it's provocative. It gets the people going. I just love the 14 feet. I mean, these guys, I don't understand as a teacher, how you don't see not only the humor in the situation, but that actually that takes some real planning and effort. And if you channel that in a, in a fun, interesting direction, these boys are clearly bored.

So channel that energy. They're not lazy. Um, they're not lacking in creativity. You're the teacher take that energy and take that creativity and put it somewhere else. Don't punish them for making a 14 foot banner that says bong hits for Jesus. But of course, that's not what happened because this is going to end up in court. Yep. It's going to end up in court. He was suspended. They confiscated the banner. He was suspended. Where is that banner now? I don't know. I don't know. It belongs in the free speech hall of fame. It does.

He was suspended. And for 10 days, you know, when I was growing up back in my day, Sarah, you could beat someone senseless in school and only be suspended for three days, max. If you got in a fight and there weren't like serious may mayhem you just get sent home for the day but this for 10 days so what does this now typically i would think under the existing legal doctrine if he files suit to challenge his suspension he wins he wins why does he win because there's a case called tinker v des moines uh independent school district that says that you don't shed your rights at the schoolhouse store and your speech may not be suppressed unless school officials reasonably conclude that your speech will materially and substantially disrupt the work and discipline of the school. So does it materially disrupt the work and discipline of the school to unveil this banner off school grounds

and make people laugh no no so what does the supreme court do the supreme court in a case written by justice roberts says that which enjoined by enjoined with scalia Kennedy, Thomas, and Alito, no, says it's okay for the school to censor this speech because it's advocacy of illegal drug use. But is it? Is it? Is Jesus taking bong hits? I don't know. No, I mean, it's not even saying Jesus is taking bong hits.

No. It's saying the bong hits are for Jesus. Are for Jesus. Like, it's a nonsense statement that's just meant to be funny. And it is actually kind of funny, especially in the context of a bunch of guys unfurling the banner and no doubt snickering and giggling the whole time. furling the banner and no doubt snickering and giggling the whole time. And, but it was,

it, what essentially ended up happening was the Supreme court sort of carves out the special, like, I don't know, uh, anti-drug exception to the first amendment in schools. And it has turned into a bit of a legal cul-de-sac. There's nothing else populating that cul-de-sac except bong hits for Jesus.

Totally. But I am glad David, that I went to high school post tinker pre bong hits for Jesus. Totally. But I am glad, David, that I went to high school post-Tinker pre-bong hits for Jesus because I was my own little high school campus radical in high school. No. No. I know. It's hard to believe. No. I refuse to believe it. We had a student who was a year younger than me who refused to stand for the Pledge of Allegiance, and they threatened to suspend him. And of course, me being all of 16 years old, went all Tinker on them and was very much like, he does not shed his rights

at the schoolhouse door. This is not disruptive as long as he just continues to be seated. It is exactly in line with Tinker and you cannot punish him. And I won that little non-case, I will tell you, David. And you didn't even cite the best case. It's Barnett. It is, yeah. I mean, I... Well, I excuse your 16-year-old law yourself.

I continued from there to then advocate against prayer before orchestra concerts, which I thought was a violation of First Amendment rights as well. This was pre-Santa Fe, actually. And it was an opt out. You could leave the orchestra room if you didn't want to pray. And I said that that was ridiculous. It clearly should be an opt in. And the people who wanted to pray should And I said that that was ridiculous. It clearly should be an opt-in and the people who wanted to pray should be the ones to go leave and pray together. And those of us in a public school should be able to stay in our room and not pray if we chose not

to because we had a very multicultural and religiously diverse orchestra. And I was the president of the orchestra and I felt that that was exclusionary. So that gives you some insight into what a delight I must have been to have in class, um, in high school. You and I fought different battles in high school. Oh God, David. But like that makes it sound like I was only fighting these very righteous battles. Another battle that I fought was my sophomore year. Uh, my, my world history class teacher, if you went to his Tuesday night fellowship at his house, like the Christian fellowship group, then you didn't have to do your homework for Wednesday. And I found that to be highly unacceptable. And so on Tuesdays, when he would hand out the

homework, he would put it on my desk, on everyone's desk, but on my desk, and I would throw it onto the ground. I would take my hand and push it off my desk onto the ground. Wow. Every week. Wow. And I would leave it there. And then at the end of class, I would just walk out like that. That was not even what was like, make your case or not, but you don't just get to like throw things on the ground. And then when another friend decided to join in this little protest and she threw her paper on the ground, we were going to have this, like, I am Spartacus moment, I guess. Um, he called her to the front of the class and said that he was going to give her a zero in the class if she did that again. And she started crying.

And so I marched up and said that I was obviously the ringleader of this and how dare he try to punish any of my followers and that he needed to punish me. And he was smart enough to not take that bait and was very willing to punish the followers who he knew he would have far more control over and just leave me in my isolated little island of not doing homework. far more control over and just leave me in my isolated little island of not doing homework. So I briefly published an underground newspaper at my high school of which one of our principal issues was taking direct aim at the use of parental connections to secure the plum spots on the basketball team. The basketball team, Sarah, should be a sacred meritocratic sphere. And I was nursing a long freaking grievance

about my mistreatment when I tried out for the freshman team. And don't get me started on it because it will flare. But I also boycotted Sunday school when I was in sixth grade, when my dad was an elder in the church, because my Sunday school teacher was teaching heresy. So, and in my view, I had just gotten a new Bible from the elders in sixth grade.

And so I'd read the whole thing from cover to cover. And I walk into Sunday school and he starts teaching that everyone who is not a member of our church is going to hell, which I then referred to him to the book of Romans, which contradicted his particular teaching. He told me I didn't know what I was talking about. And so the next Sunday, we're driving to church, and I said, I'm not going to Sunday school, Dad. Why? He said, he's preaching heresy.

He's telling me my Baptist and Catholic friends are going to hell, and that's false. And I said, I want him to write me a letter of apology. Oh, goodness. And he did. What? He did, Sarah. My first legal case won.

He did. I got a letter of apology from my Sunday school teacher, which ended my boycott. And I don't even know. Probably some sort of backroom deal done between my dad. Your dad wrote that letter. Did you recognize the handwriting? I won. I won, Sarah.

Don't take this from me. Okay, so what we're learning from this is that you and I were, depending on your viewpoint perhaps, either precocious or obnoxious. Maybe both. I prefer precocious. So anyway, can I tie

the little Satan to the great Satan so you know how in Iranian rhetoric the little Satan is Israel and the great Satan

is America okay yeah anyway so there's the little Satan Morse v. Frederick what does it have in common with the great Satan

employment division B. Smith it's about drug use it's about drug use. It's about drug use. The distorting effect of the drug war on the Bill of Rights is immense. It's immense. We can go into no-knock raids.

We can go into the free exercise clause. We can go to free speech. It really is remarkable when you think about the ways in which the war on drugs has distorted our application of the Bill of Rights in ways that are annoying, though not super serious, like Morse v. Frederick, but in ways that are very serious, like the granting of essentially carte blanche for no-knock raids that cost people their lives. So anyway, this is something that sort of like slowly unfolded to me over time. Wait a minute. What do all these cases constricting the Bill of Rights have in common?

Well, you heard it here first. David is in favor of massive amounts of drug use. Let's take a moment and thank our sponsor, ExpressVPN. Have you ever wondered why internet access is so much cheaper these days, like 30 to 40 bucks a month? It's because internet service providers like Comcast or AT&T aren't just making money off subscription fees. They're also making money from

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I can't stress this enough. ExpressVPN is so simple to use. You just open up the app, tap one button to connect, and that's it. Your data is your business. Protect it at expressvpn.com slash opinions. Visit expressvpn.com slash opinions to get three extra months of ExpressVPN protection for free. That's E-X-P-R-E-S-S-V-P-N.com slash opinions to learn more. Moving on to our final topic, which is our pop culture topic. There will be spoilers in this

topic. So if you have not seen Ted Lasso or Queen's Gambit and are concerned about spoilers, now's the time. Turn it off. Okay. You're still with us. So I really enjoy watching pop culture phenomenons and thinking about them in terms of the zeitgeist in which they arise. arise. So for instance, David, you have all these movies in the nineties about sort of these natural events causing chaos, tornadoes, asteroids, volcanoes, um, et cetera. And to me, I think you see that in the context of the nineties and an economy that's going really well and everything's just kind of humming along and, and the people consuming media came out of, you know, the late sixties and the seventies in Vietnam. And then the, you know, long lines for gasoline in the late seventies and, you know, bad things just continuing to happen. And then all of a sudden the nineties and the sun is shining and the sky is blue. And so you have this like existential dread of like, well, something's going to go wrong. And so they create,

you know, asteroids and tornadoes, and it's going to be some deus ex machina event that's going to do this. And that brings us to then the early aughts, which had a bunch of bad guys. Everyone's a bad guy. In Breaking Bad, everyone's a bad guy. In The Sopranos, everyone's a bad guy. And so we were sort of exploring whether, in fact, bad guys can be good guys and whether you can root for someone who you don't like. The new Batman stuff, like all of our superheroes took much darker turns

than they had had in the 80s or 90s, where they're just darker people and everything's a little bit more depressing. Really interesting. Okay. This brings us to now, where all of a sudden in 2020, we have the exact opposite. We have the rise of everyone's a good guy. There are no bad actors. And the conflict is built through good people trying to reach good results and trying to get there together.

And so in Ted Lasso, every person except the owner's ex-husband is just an unequivocally good person. You might misunderstand them at first. They might have different objectives, different incentives, different insecurities, but they're all good people who you could root for and like want to succeed. And in Queen's Gambit, what I found so interesting, I love Ted Lasso because of that.

In Queen's Gambit, what I found so interesting was that it's the same thing, except Ted Lasso is set in present time and Queen's Gambit is set in 1965. And so you have this 16-year-old girl interacting with all these adult men and they're all good guys and nobody tries anything.

Nobody is sexist towards her. Nobody tries to take advantage of her. And she just merrily rolls along as a recognized genius for everyone who she encounters and even the russian who she is up against in the final bit she finally makes it and she's up against you know in the and we've seen versions of this over and over again right you're finally like rocky you're up against the russians and the russians are bad and they sneer at you no he gives her a hug and tells her that she might be the most talented chess player he's ever faced

and he wasn't a bad guy he was just her opponent and there's a difference between bad and opponent and it was fascinating to me but it did detract from the story a little because it was so unrealistic yeah yeah but you know it was unrealistic in a heartwarming way. Yeah, if we redid history where everyone is living with 2020 norms and we went back and redid the 60s with 2020 gender norms, this is what that would look like. And it was really interesting. Except that even in 2020, women play in a women's chess tournament, not in the men's. The best woman in the world,

I believe is ranked number 63. She might be ranked number 64. Actually, I think there are 63 people ahead of her. But Queen's Gambit is based on a 1983 novel. And so I know a bunch of people are going to be like, no, no, no. See, it was written beforehand. Yes, the novel was written beforehand, And so I know a bunch of people are going to be like, no, no, no. See, it was written beforehand. Yes, the novel was written beforehand, but they decided to turn it into a show now. actually, I think it is a good sign for our culture. And to me, it signals that perhaps just around the corner of this moment is maybe a postpartisan, bipartisan moment. And you and I are interviewing Charles Koch about his new book. And it makes me think about that. His new book is all about this sort of post-partisanship, finding common ground, finding solutions that everyone can get on board with,

and that it's a win-win for everyone. And that those people who you think disagree with you aren't bad guys. You just haven't found the common ground yet. And I think that we might be on the precipice of having that moment. And I think that Netflix is telling me that, and Queen's Gambit is a great example. Well, there's actually some social science data to back you up here on that, Sarah. There's an awful lot of research done by the More In Common Project, and I actually put this in my book plug plug um that we what we have in this country is we have a very motivated minority who is very angry hyper aware of politics you would almost call them political hobbyists they're much more you know they're much more

likely than the rest of americans to be dedicated to politics as a hobby. They tend to have more income. They tend to be whiter than the rest of America that are very dedicated to politics. And they are pulling us apart. And they're both extremes and they're just tugging, pulling us in opposite directions. And then there's this bigger group of Americans.

They're not, you wouldn't call them all moderates because they're not all moderate. But the phrase is the exhausted majority. And that is a group of people who, wherever they are in the political spectrum, they are exhausted by politics. They're exhausted by conflict. And it seems like as soon as you said that, it reminded me of my own sort of reaction to Ted Lasso, which is like, this is fun. Like, this is a break. This is something that is, you know, like you and I tweeted out, we're introducing our

older kids to Ted Lasso. And so we're on March 2 through the series. And it's just like, ah, nice. This is good. But not nice in a cheesy way. Like, nice in a genuine way. Like, sincere. And has genuine human reactions to kindness.

Which I think is, that's what makes it legit. It's not cheesy. It's not sappy. Although Ted Lasso can kind of be over the top. But that's kind of the joke. But it shows. Yeah, exactly.

Like he's in on it. He knows that he's being sappy. He does it intentionally. Exactly. But it shows the genuine human response to unexpected kindness. So what, like what you have is a community of people who all have their guards up for various good reasons whether it's a somebody who is on the downslope of his career and is being berated as he's trying to cling to his role in you know as a leader of the team you have a woman who

owner who has been horribly mistreated by her husband and is out for revenge. You have a coach with something to prove. You have the young, snotty soccer star who's under, when you learn more about him, his dad is this malevolent force in his life under so much pressure. And each person has their guard in a different way. And the show is about breaking through all of those guards in these really sort of genuine and real moments that I think are so interesting and powerful.

But one other thing about Zeitgeist, one of the reasons, why is it, we've gone from the era of the movies, like the Cold War era, you had many movies with the Soviets as villains. The original Red Dawn to Hunt for Red October to all of that. One peng only. Yes. I just rewatched that movie about a month ago. It's so good. And good book. It's so good. And good book. It's interesting.

I think the era of globalization is part of the reason for the explosive growth of the superhero movie because nobody's really a villain on this earth anymore. So you can sell it in every country because it's not putting one country against another. It's putting one set of virtuous super beings against a set

of evil super beings. And really matches with the commercial dictates of a globalized economy. That's an interesting point on Pandemic Legacy, the board games that I told you about that I play that are like television series. Pandemic

Legacy seasons one and two are set in the future against this unknown evil government force um and pandemic season zero is set in the past against the soviets which i think is really interesting to to your point like if you need to find a bad guy now you need to change the temporal setting because i i think it's the commercialism yes but i think also to some extent um globalism has allowed us to see the humanity in other cultures so we no longer think that they're weird or evil um and that that's uh maybe not all in all a bad

thing yeah no and i think there's there's much merit to it plus superhero movies. So what did Nancy think of Queen's Gambit? Loved it. Did she also find the gender part weird? I just feel like as a woman watching it, you're like, wait a second. If I'm a chess prodigy and these older men are not, we'd be like, oh, wonderful.

Let me mentor you. I need to ask her about that because we didn't talk about that. We talked about your point that you made. I brought that up to her last night and she thought that that was very interesting and agreed. The point about

both Ted Lasso and Queen's Gambit are they don't have villains. They have obstacles. They have opponents that don't have villains. She thought that. They have opponents that don't have villains. She thought that was really, really interesting. But we haven't talked about the gender side of it. But it is really, when you watch it through the eyes

that you're talking about, it is almost hilarious how quickly opponents become friends. It's amazing. It's absolutely, you know, there's these two guys who are skeptical at the start when she's at Henry Clay High School for her first chess tournament. And by the way,

I grew up in Georgetown, Kentucky, which is just north of Lexington. So all of the, like, New Circle Road, I was like, wait a minute, New Circle Road, I know New Circle Road. Henry Clay High School, I know Henry Clay High School. I was wondering why you remembered what high school she was at. Like, I wouldn't remember that. I know New Circle Road. Henry Clay High School. I know Henry Clay High School. They stomped the crap out of us. I was wondering why you remembered what high school she was at. I wouldn't

remember that. I just watched it. Yeah. No, I remember it because it's Fayette County school system. But anyway, that they are skeptical and kind of giving her a hard time. And then the next time she sees that pair of guys, they're like, her fans overseas,

like in Mexico or something like that. But again, it's not cheesy. No. It's well done. The other part that I thought they did that was sort of funny was they sort of took a Mrs. Maisel approach to the clothing

and they kind of try to explain that she's basically spending all of her disposable income on this amazing, amazing fashion. But like really just visually, it's a delight to watch for us. And I do wonder whether that happens in the novel because it's sort of out of character in some ways

that she's this fashionista. But I mean, part of the reason why Mrs. Maisel was such a big hit was because the clothes are just fabulous. And Mrs. Maisel, by the way, another show where there really aren't bad guys. And I don't know what Mrs. Maisel is. David French.

I'm so sorry. I've not seen Beef or Vendetta and I don't even know what Mrs. Maisel is. Okay, but like that's weird because you're on Netflix and stuff more than I am. No, I mean, it's selectively.

I like, I do, I do a very, uh, selective strikes across Netflix, Hulu, Amazon prime, Apple TV.

Plus Mrs. Maisel was the biggest show to hit Netflix. Like in the last five years, it's on Amazon prime. So that could explain it. It's not Netflix. to hit Netflix in the last five years. It's on Amazon Prime, so that could explain it. It's not Netflix. Is that the singing show on Amazon Prime? No.

No. Mrs. Maisel is a show about a Jewish mother who goes into comedy. So I watched The Expanse on Amazon Prime. Great sci-fi. Catastrophe. Oh, Catastrophe is delightful. The best. No, I don't spend a lot of time on Amazon Prime.

Oh, and The Americans. We re-watched The Americans, which is on Amazon Prime now. Okay, well, you and Nancy, try Mrs. Maisel episode one. See what you think. Try, okay. I'll try it. Okay. See what you think. Um, try. Okay. I'll, we'll,

I'll try it. Okay. I'll try it. Uh, we're taking next week off. We are taking a full Thanksgiving week, David. I'm very excited about it. We are.

As someone who did not take time off from advisory opinions with the brisket, this will be my first week off and I'm very excited. That is, that's true. You're going to take more time off for Thanksgiving than you took off to give birth. That is insane. And again,

I will say the same disclaimer that I have said every time you mentioned that no one at the dispatch pressured Sarah to come back immediately. She, it's just how much she loves you and this pod that she came back. So enjoy the time off, Sarah. You too, David. And listeners, have a very happy and safe Thanksgiving. It is getting kind of scary out there with the prevalence of coronavirus. So please be careful as you celebrate. the prevalence of coronavirus. So please be careful as you celebrate. And thank you for, this is a good time to say thank you. You guys have really turned out in surprising numbers for a Legal Nerd podcast. And we really appreciate it. And we really value the questions. As you can tell,

it gives us a lot of our content. And so keep those questions coming, David at TheDispatch.com, Sarah at TheDispatch.com, and we will see you after Thanksgiving. And we'll take a quick break to hear from our sponsor today, Aura. Ready to win Mother's Day and cement your reputation as the best gift giver in the family? Give the moms in your life an Aura digital picture frame preloaded with decades of family photos. She'll love looking back on your childhood memories and seeing what you're up to today. Even better, with unlimited storage and an easy to use app, you can keep updating mom's frame with new photos. So it's the gift that keeps on giving. And to be clear, every mom in my life has this frame.

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