Advisory Opinions - Brutally Unfair, Legally Complicated

Episode Date: July 6, 2021

On today’s not-quite-emergency pod, Sarah and David have thoughts to share about the Supreme Court’s orders from last Friday. David discusses the ins and outs of the Arlene’s Flowers case, where the court denied an appeal from a flower shop owner that refused to design arrangements for a same-sex wedding, and analyzes how Supreme Court justices don’t always rule the way people predict. Then Sarah goes into a slew of other orders from the court on qualified immunity for university admins, religious liberty for the Amish, defamation against public figures, and eminent domain. Plus, David and Sarah review a ruling from a Minneapolis judge that throws a wrench into “defund the police.” Show Notes: -Friday Supreme Court orders -Writ of mandamus from Minneapolis judge on police force Learn more about your ad choices. Visit megaphone.fm/adchoices

Welcome to the Advisory Opinions Podcast. This is actually a special edition because we had planned to take the first podcast of the week off because July 5th is July 4th observed and the Supreme Court term had ended, Sarah, and it was time to take a deep breath. We've got a great guest next week. We're going to start to transition into cool guest phase of advisory opinions, so you won't want to miss it. And then the Supreme Court goes ahead, and on Friday, issues an orders list that was lit, as the kids say, had a lot in it, and wow. So here we are on a special Tuesday edition of the podcast

with a lot to talk about. And let's just start, Sarah. So we're going to talk Supreme Court. We're going to start to talk about some really interesting Fifth Circuit case about involving bar dues. Sounds boring, is not. And then a wild order out of a Minneapolis court. So this is a lot. So Sarah, start us off. Well, fascinating because this is sort of an emergency pod, except I think we can all acknowledge

that the final orders list does not itself qualify as an emergency. Plus, that was on Friday and today is Tuesday. So I actually think this may go more to the fact that we have trouble taking time off. That might be it. That's possible. But I was going to have more anxiety if we didn't do the pod. I know.

No, and I wholly agreed with you. So the Supreme Court term is over now. They issued their final opinions that we talked about last week, but now there was the final orders list that came out on Friday morning at 9.30, and boy, did it pack some punches. But what was most notable, David,

is the punch that it didn't pack. The Arlene Flowers case was denied. There were no written statements on the denial of cert. I just want to give a little bit of detail before, David, you jump into the facts, opinions, thoughts, feelings. Yes, I have many. This case came up for conference on the 24th of June. So it was a super late conference. It barely even made it into this term.

As a result, the justices really didn't have time to write. And we have seen this in previous cert denials where a big hit parade case that you'd normally be like, wait a second, they're writing statements on denial of cert on like, I didn't like that ham sandwich. How does something like Arlene's flowers not get a written opinion? And this is why, because that last conference, if it's then denied, it's really hard in one week to write something thoughtful about what you want to say when you're

also trying to like do those last touches on opinions, et cetera, slash that flight to Italy is calling. So that tees up, I think, why we don't have a written opinion on the statement of denial assert. So that means that David and I, it's an empty vessel that we will fill with our own thoughts.

David, talk to us about Arlene's flowers and how it arrived at the conference on June 24th of 2021. Oh boy, this is a tangled story, Sarah. So Arlene's Flowers is one of the small group of cases that arose out of Christian small business persons refusing to create art to help celebrate gay marriages. So this is very similar to Masterpiece Cake Shop, where Jack Phillips, a gay couple, comes in and they're going to have a celebration of their wedding. And they ask Jack Phillips to custom design a cake. And he says no, but offers that, hey, you can use one of the cakes I've already made. You can pick one of those, but I don't want to custom design, use my artistic ability specifically to celebrate a wedding that I think is contrary to my biblical values.

That's the most famous case. And that case went up and Jack Phillips won 7-2 at the Supreme Court, but on narrow grounds, basically that there was evidence that the Colorado authorities had ruled against him because of anti-religious animus. he had faced discrimination on essentially discrimination on the basis of religion. There was not a neutral and generally applicable standard applied to him. And so he won. Very similar case going up from Washington state involving a woman named Baronelle Stutzman, who owns a business called Arlene's Flowers. Gay couple came in, asked for her to do custom arrangements for their wedding. She says, I'm not going to do custom arrangements, but here are some prearranged floral arrangements you can use. And by the way, here, I'm going to refer you to other florists

who are happy to help you. And to make this even more sort of interesting, she had long served, this was a longstanding customer that she had worked with for years. So she was more than willing to work with gay customers she just wasn't willing to use her artistic ability to design a floral arrangement specifically to celebrate a gay wedding but she directed him to others what made this case interesting is that the washington attorney general is the one who really initiated this

aspect, the attack on Arlene's flowers, and then went after her personally. So even though the gay couple was able to get floral arrangements, in fact, when the word spread that they had been denied by Arlene's flowers, that they were deluged with offers for free arrangements, deluged with offers for free arrangements. She was individually attacked, sued by the Washington Attorney General in a way that would make her liable for, I mean, that could personally financially ruin her. So this went up to the Supreme Court after Masterpiece Cake Shop was decided. The Supreme Court GVR'd the Washington Supreme Court's ruling against Arlene and sent it back to the Washington Supreme Court for further proceedings to see if there was any anti-religious animus directed against Arlene in this case. And the Washington Supreme Court

basically said Masterpiece Cake Shop is distinguishable because the anti-religious animus that may have existed was on the part of the sort of the prosecutor, the attorney general, but not the adjudicator, not the court that decided the case. So they ruled against Arlene again, goes up to the Supreme Court to make a long story short, it sits there for a long time. And the expectation is that Arlene's flowers will basically be decided in one way or the other by the Fulton case that we've talked about. If Fulton overturns Smith, and then the legal doctrine applicable to Arlene's flowers will have been changed. Therefore, Arlene's flowers would be, if Smith is overturned, Arlene's flowers would also

have to be overturned and remanded again. Well, Smith was not overturned. The Fulton case, as loyal advisory opinions listeners know, was pretty narrow. And even though a majority of the justices called Smith into question, they didn't overturn it. So that left Arlene in a really precarious position because there was no change in the underlying legal standard that she'd already lost on. And so what was going to happen? And the hope was that they would GVR that case. The most realistic hope was that they would GVR that case and remand it for one more reconsideration in light of Fulton. A fainter hope was they'd just go ahead and take that case

and maybe use it next term as the vehicle for challenging Smith. But I thought the most realistic option was that she was going to have cert denied. And she had cert denied. Okay, that's the pause. I've got a lot more to say about this, Sarah, but I don't want to filibuster more than I just filibustered.

So thoughts of yours so far? I think it is important to understand the Supreme Court's discretionary review standard. We've certainly mentioned about mandatory jurisdiction and discretionary jurisdiction when it comes to original jurisdiction, for instance. And we've sort of taken it for granted that obviously if it's coming up on appellate review, the Supreme Court can or cannot take a case. And we've even discussed a little bit about what makes them want to take a case, a circuit split. And they really want a deep circuit split, not one that just happened last month where two circuits happened to come out the other way, but where each circuit gets to consider the other circuit's opinions and views, and they become more and more divided, heading off into

their own little legal directions, and the Supreme Court finally steps in and says, no, no, let's bring this back together. There are areas that are simply so important to the national interest. Think about the travel ban case for something like that. High profile, really, it's something that shouldn't be resolved at a lower court level. The Supreme Court will step in on that. But two things worth noting that are relevant to this case. One, the Supreme Court has taken fewer and fewer and fewer and fewer and fewer and fewer cases as the years have gone by. We're now at an all-time low. I mean, there's a reason we're seeing more, and more, and more opinions, because they've got the time

to do it. And so what are the cases that they are less likely to take? It's exactly this. They don't take cases to correct a wrong at a lower court. That is not usually a reason to take a case. Now, yes, if your case gets accepted at the Supreme Court, the likelihood that it's going to get overturned, more likely than not. You've got a better than coin flip odds. And if you're at the Ninth Circuit, even better than that. But that is necessary but not sufficient. And what you have here, David, I think, is the Supreme Court laying out a framework over the course of several opinions that they now want to see the circuits apply.

Yes, they could have GBRed it. But, and I'm curious why you think they did not GBR it, because especially in the term in which they have an opinion that's relevant, they sometimes do that. Um, but basically if you come up the next year after Fulton, you're not going to get GVR in light of Fulton as in they know the court already saw Fulton. They're assuming that you applied Fulton as best you could. And they're either going to take the case or not at that point. And often it's not because they want to see other panels on the circuit. They want to see on box. They want to see different circuits sort of wrestle with these questions. And I think

in this case where GVRing it would have been so clear, we don't like your outcome, fix the outcome, we don't like your outcome, fix the outcome, that they discretionarily decided it's time to let this topic rest for a while, marinate in the lower courts, and let's see what kind of soup we get in, what do you think, three years? Yeah, I think that sounds about fair, three years. Yeah, I think that sounds about fair. Three years. Yeah. No, I think that's an outstanding analysis of just how this all worked. But let me go back because I want to... So this is a preview, guys.

So if you're also going to read my French Press newsletter today, it's going to be a race. What's going to hit your inbox first, this podcast or my newsletter? So my newsletter will get into a little of these details. So a lot of readers know before I jumped into National Review full-time and before I came to the dispatch, I was a religious liberty litigator for ADF and Alliance Defending Freedom and then the American Center for Law and Justice. I filed an amicus brief even after I was a journalist in the Masterpiece Cake Shop case

on behalf of a bunch of state policy networks. So I participated in the Masterpiece Cake Shop litigation. And let me tell you a little bit about the origin story here. When these cases first came out, when these cases first emerged, there was a real understanding of two things at once. One, this issue had to be litigated. And two, these were going to be hard cases. And I want to focus on number two, because what ends up happening, there's sort of a cycle of advocacy that occurs in any political movement where doubts about whether or not your case is going to prevail become subsumed in the advocacy that your case must prevail, if that makes sense. So why were these cases going to be hard? And I'll try to explain this as simply as possible.

On the one hand, there is an enormous amount of consensus. And I would say, when I say consensus, I say 9-0 judicial consensus, and then consensus up and down the federal courts. That if you make a religious liberty claim or a free speech, free association defense as a for-profit business to a non-discrimination policy, when you're just in the business of providing services, you're going to lose. This has been since Newman versus Piggy Park, a case from decades ago where a religious liberty claim in defense to a racial segregation or racial exclusion from your restaurant was deemed, and I quote, from your restaurant was deemed, and I quote, patently frivolous by the Supreme Court.

So if you're going to say that I have a religious liberty or free speech right to opt out of the provision of services as a secular business to people on the basis of identity, the non-discrimination categories, you're going to lose, okay? That's on one hand. On the other hand, there's about a 9-0 consensus that if the state comes in and says, you're going to be required to produce a piece of art that sends a specific message that you disagree with, you're going to lose. I mean, if you challenge that, you're going to win. So for example, if the state said, hey, Mr. Painter, what we need you to do is paint a, if a person comes in and says, I want you to paint the Confederate flag, a mural of the Confederate flag on the side of this building, and you say, no, I don't want to do that. And somebody says, you know what? I'm a white person making that request.

This is white people who would make that request. This is anti-white discrimination. A court would go, come on. Come on. It's ridiculous. Now, so you have those two things. You have the state cannot clearly, cannot compel what is a clearly message-sending, expressive act by an artist or a professional with the state can require a provider of services to serve everyone regardless of the identities identified in a non-discrimination statute. So then what's the natural question? Where does the line between provision of a service and requirement of artistic expression, where is that line? That is, and if you went back to the Masterpiece Cake Shop oral argument, that was a huge part of the discussion. And it's not an obvious, there's not an obvious answer. Wagner, my friend, and very, very, you know, just an outstanding litigator, did and did

correctly in my view was, we don't have to define that line for all time with this case. We just have to say this case is expression in the masterpiece cake shop circumstance. in the masterpiece cake shop circumstance. And so that's what is the difficulty with these cases is where is the line? So Arlene, for example, not Arlene, Baronelle says, if I prearrange the flowers, I was engaging in an expression, yes, but not specifically to celebrate the gay wedding.

Therefore, it doesn't violate my conscience to sell you prearranged flowers. But if you ask me to arrange specifically for the gay wedding, then this floral arrangement is going to send a message specifically designed around the gay wedding. Now, I think that's a logical and rational distinction. I do. Do I think that there is no logical or rational argument that that distinction is a little bit arbitrary and fuzzy? It's not a slam dunk, Sarah. It's not a slam dunk. And so what ends up happening is this case,

which everyone knew going in, except for the people who are sort of most zealous, that you're forging into this gray area between two stark doctrines. over time becomes a litmus test as to, is the Supreme Court serious about protecting religious liberty and free expression and all of that, when it was always going to be difficult? And I've written in support of Baronelle's position. I've written in support of Jack Phillips' position. And I have very specific reasons why I think that their distinction that they draw, which is if you're asking me to use my creative ability for a specific purpose that I disagree with, that's more on the line of making a painter paint a painting that he doesn't agree or making a poet write words or a lawyer represent a client that he doesn't, you know, to advance a cause that he doesn't agree with. But I also know that from the get-go, these distinctions were going to be difficult. And if you don't think they're going to be difficult, I'd ask you to go back and look at the Masterpiece Cake Shop oral argument where this stuff was parsed ad infinitum, where this stuff was parsed ad infinitum, and you could see the difficulties.

So that's my history lesson slash, here's why this was hard slash, but I still agree with you, this is going to have to be resolved, and it might not be now. But in the meantime, Baronelle has been treated brutally and unfairly because there should be a level of tolerance in a pluralistic society

that when somebody says, look, you're my friend and I respect you. I just can't do this thing for you but here I'm going to refer you to two or three other people who will do it for you that the response of a just society is not to then try to crush her and destroy her livelihood because of that.

So something can be brutally unfair and legally complicated at the same time. End filibuster. So that's why, despite it only coming up for conference with a week's left, only coming up for conference with a week's left, I am surprised that someone didn't write a few sentences about, I agree perhaps that now is not the time to take this case. However, the plaintiff in this, you know, or the defendant in this has shown good faith. It is a shit, you know, some words to that effect, but there weren't. Others have pointed out what I think you were getting at, which is the court probably doesn't want to take flowers. If you're going to talk about artistic design, you want to take something on the extreme of the artistic spectrum. And

flowers are kind of right in the middle. Are they artistic? Sure. Just look at the, is that the parade of roses for the Rose Bowl? Whatever. Just look at the parade of roses or the Rose Bowl, whatever. Clearly, there are artistic flower expressions, but the reason that you're analogizing to painting a Confederate battle flag on the side of a building is because that's something

we sort of accept as being much more artistic expression than flowers. And the message is very clear from the painting itself. That's right. The cake in Masterpiece Cake Shop, I think, falls on the artistic side of flowers.

It is more artistic expression than the flowers. So I think, you know, that the explanation in the end is probably about that simple. They want to let these other cases percolate. Flowers were not the thing to pick.

We also saw them turn down the Gavin Grimm case. This was the transgender bathroom law in North Carolina. Totally different in a lot of respects on the law than what you were talking about, David. But very similar on the part that I'm talking about, which is the percolation aspect of this. They don't want to take the cases right now. Yeah.

Yeah, they don't want to. They don't want to. And what makes this hurt, what makes this sting, is it's one thing for Baronelle to lose, say, a declaratory judgment action, you know, so, or the, or the court issues an injunction, but the financial penalties that could end up being imposed upon her are extreme, are extreme. And that's what makes this so brutal. Now Gorsuch, Thomas, and Alito wanted to take it. Which is your three, again, your three sort of facts are facts. We decide these on the facts.

We don't look at extraneous mood of the country, whether things have percolated enough. We take things because of what's on the paper right in front of us three versus the three, they needed one of the three in the middle. The nope, we look at things outside of the paper in front of us and they couldn't get a single one. They could not get Roberts. That's not surprising. They could not get Kavanaugh, a little more surprising. And they couldn't get Barrett, which isn't surprising or not surprising. It's telling us what kind of justice Barrett will be. So this all goes to just how difficult the judicial and imprecise the judicial career track does not lend itself to asking the prospective judges to make definitive declarations about how they will rule the Supreme Court justices.

So it's a lot of it is reading tea leaves. Like it's the legal equivalent of like reading the chicken entrails, you know, that, wait a minute. So here's the emphasis that they put on this concept in an opinion as a circuit court judge, what that, what is that going to tell us?

And in that circumstance, you're like, but, but when they're a circuit court judge, they're bound by precedent or here's a topic they covered in a law review article, but because it's a law review article uh they're they're more doing uh academic analysis than actual advocacy of a position

and so you're left with sort of this this get a bunch of educated guesses now not not always just guesses like if judge if judge willett becomes Justice Willett, our friend, I have a pretty good idea he's not going to be hospitable to qualified immunity on the Supreme Court. But that's just one issue. And so I think what you end up doing is you're looking for clues from biography, sort of personal testimony of friends, all of these things that make you think that, oh, this person is really with us, even though they've never said they're really with us. And I think the Kavanaugh-Barrett situation

is really interesting because I know for me, I wrote a piece right after Kavanaugh was nominated where I was like, no, it should have been Barrett. It should have been Barrett. I wanted Barrett. And then it turns out that Kavanaugh and Barrett are very much alike on the court so far. And so it just goes to show that a lot of what we're doing, even though we might know more about the jurisprudence or the personality or the biography of any given judge, A, B, C, or D, of any given judge, A, B, C, or D,

you don't know what kind of justice they're going to be until they're a justice. And that's always important to remember. Well, David, we learned a lot about our justices in this orders list because there were a lot of cases that they did write on and some very sexy topics in here. So I want to run through the rest of this and it's long. Go, go. Okay. First up, and I'm just going to go in order. So if you want to go read these and one of them in particular, I'm going to tell you, you really

need to read. You can just, we're going to follow the order of the orders list. So first up, We're going to follow the order of the orders list. So first up, qualified immunity case was denied. Justice Thomas waving his hand, going, oh, hi there. Yeah, nope, still not happy with our qualified immunity jurisprudence. So as he notes, the one size fits all doctrine is an odd fit for many cases because the same test applies to officers who exercise a wide range of responsibilities and functions. So before David, he has talked about how this whole thing's on shaky ground legally. He wants to know about the common law pre-1871, which someone in this household might have written a law review article about to answer his question on that. And that's on the clearly established law. Qualified immunity, you have

to show there was a constitutional violation, and then you have to show that that constitutional violation was clearly established at the time that the officer violated it. And most courts just skip to question number two, find it wasn't clearly established, and never actually determine whether there was a violation. Justice Thomas, not loving that. That's not what this case is. He's actually now talking about a second problem with qualified immunity in his opinion. And that's, David, something we've talked about. The difference between police officers making split-second decisions and school administrators making really bad decisions, then sticking with them over long periods of time

that are pretty obviously constitutional violations and still getting qualified immunity the same as those officers. Like every speech code ever. Yeah, and like they're putting the same shield up

that an officer that was like, no, I reasonably thought my life was in danger. Maybe it turns out, you know, you can second guess that. And then this administrator's like, well, I had six months to think about it and I picked wrong. In this case, you have a student. University officials violated her first amendment rights

by prohibiting her from placing a small table on campus near the student union building to promote a student organization. According to the university, she could only engage with students in a designated free expression area, the use of which required prior permission from the school. The Eighth Circuit concluded that this policy of restricting speech around the student union was unconstitutional, but granted immunity to the officials after determining that their actions, though unlawful, had not transgressed clearly established precedent. This is Justice Thomas still. Why should university officers who have time to make calculated choices about enacting or enforcing unconstitutional policies receive the same protection as a police officer who makes a

split-second decision to use force in a dangerous setting. We have never offered a satisfactory explanation to this question. So Justice Thomas, he is just like shooting arrows at qualified immunity, but no one joined him. Still, it's a matter of time at this point. All right. Next up, David, I think this is a case that you'll want to spend some time on. I was very angry after diving deeper into the facts on this. This is the Amish case out of Minnesota. So in this, they didn't actually deny cert. They GVR'd it in light of Fulton. And Alito writes basically one sentence, the lower court plainly misinterpreted and misapplied the religious land use and institutionalized persons act. XOXO, Sam. But then you have a much longer take from Justice Gorsuch.

That again, he's not disagreeing with the fact that they should have GVR'd it, but he's basically writing the Eighth Circuit new opinion for them, and it's got some thoughts. So let's start with the facts in this. It's, I mean, how do you not know you're on the wrong side of the law with these facts? So the Amish don't use modern technology.

There are different orders that have different rules. As Justice Gorsuch example, when you can use a phone at a neighbor's house if your farm catches on fire, for instance. Different orders are going to have different rules about when you can use technology in an emergency. There's 40 different affiliations around that. But this group is pretty traditional. They're on the traditional side of this. And the state of Minnesota, well, actually, sorry, Fillmore County in Minnesota said that they must adopt what amounts to a septic tank. We'll get into some more specifics on this in a second. And they said, oh, I'm sorry, that

violates our religious rules, but here are two other options that we have to filter our water. And Minnesota, the Fillmore County said not only no, but they would risk jail, fines, losing their farm and all of their possessions if they didn't install this water system. I mean, it's ridiculous. So to get to the legal part of this, mean, it's ridiculous. So to get to the legal part of this, Justice Gorsuch, the court, county and courts below erred by treating the county's general interest in sanitation regulations as compelling without reference to specific application of those rules to this community. As Fulton explains, strict scrutiny demands a more precise analysis. Courts cannot rely on broadly formulated government interests, but must scrutinize the asserted harm of granting specific exemptions to particular religious claimants. whether the county has a compelling interest in enforcing its septic system requirement generally, but whether it has such an interest in denying an exception from that requirement to this Amish community specifically. Also, he notes, they failed to give weight to exemptions

other groups enjoy. For example, in Minnesota, those who hand carry their gray water are allowed to discharge it onto the land directly. So thousands of campers, hunters, fishermen, and owners and renters of rustic cabins are exempt from the septic system mandate. Under strict scrutiny, the county must offer a compelling explanation of why the same flexibility extended to others cannot be extended to the Amish. As Fulton put it, the government must offer a compelling reason why it has a particular interest in denying an exemption to a religious claimant while making exemptions available to others. Strict scrutiny just got stricter.

Bum, bum, bum. Yeah, Amish are going to win. I'm going to go ahead and just going to go ahead and predict that right now. Amish are going to win. I'm going to go ahead and just going to go ahead and predict that right now. Amish are going to win. Surprise they ever lost on that one. They're going to win. It's, it's bonkers. So they offered to create a, um, it like it's a natural filtration system using like moss and stuff, I gather. And the county said no, because they didn't think that the moss would like do well in the environment that most of these farms were on. And Gorsuch is like, no, no, that's not how this works. That's not how

least restrictive means works. This isn't how compelling interest works. This isn't how exemptions works. The what, the what, Eighth Circuit. You got bench slapped. So do better. Try harder. Note, note, for those who are thinking this podcast just got explicit, she said bench slapped. a podcast just got explicit. She said, bench slapped. It's true. Yes. And not my term. E-N-C-H.

That's a David Lau term. I'm borrowing. Give credit where credit is due. All right, David. Next up, and this is the one that I think listeners maybe should just go read some of this for themselves. Although, it's not getting the attention it deserves, David, and that is defamation. And I, we haven't talked about this. I am dying to know where you fall on

this. So you have Justice Thomas on dissent from denial of cert. This involves, well, I'll just, Guy Lawson published a book detailing the, quote, true story of how three Miami youngsters became international arms dealers. A central plot point involved the protagonist travels to Albania, running with the Albania mafia,

who, like, they specifically named this dude Barisha. The book performed well, and Lawson eventually sold the movie rights to Warner Brothers, which made the feature film War Dogs. I saw this movie. Jonah Hill, I believe, is in it.

It did pretty well for like one of those quasi, you know, indie-seeming movies. Barisha, though, the Albanian arms dealer dealer mafia dude who they you know cite in the book sued saying he is not associated with the albanian mafia or any dangerous group and that this dude relied on reckless flimsy sources so sued him for defamation uh the district court sides with lawson the circuit court sides with Lawson. The circuit court sides with Lawson, the author, because they found that Berisha was a public figure. And in order to win defamation as a public figure, you have to show by clear and convincing evidence that the defendant acted with actual malice. That is,

with knowledge that the published material was false or with reckless disregard for whether it was false. And Thomas is like, where did this standard come from? Certainly not the text. The court's pronouncement that the First Amendment requires public figures to establish actual malice bears no relation to the text, history, or the structure of the Constitution. In fact, the opposite rule historically prevailed. The common law deemed libels against public figures to be more serious and injurious than ordinary libels, in part because they were public figures. You were going to hurt them more because people would then know who they were. The libel would presumably travel farther and do more damage to their public reputations. So there's this case called Gertz. Gertz is the problem here.

And Gertz, well, that's what I want to know. Does David also think Gertz is a problem? In Gertz, the court reasoned that public figures are fair targets because they invite attention and comment. That is, public officials and public figures have voluntarily exposed themselves to increased risk of injury from defamatory falsehood. But it is unclear why exposing oneself to an increased risk of becoming a victim necessarily means forfeiting the remedies legislatures put in place for such victims. And even assuming that it is sometimes fair to blame the victim, it is less clear why the rule still applies when the public figure has not voluntarily sought that attention. And listeners, if you think that sounds a lot like she was wearing a short skirt, I do not think that is

a coincidence. I think he is very much setting this up as, of course, we don't say that rape is okay or sexual assault because she was wearing a short skirt. That's terrible. And if we're not going to blame the victim in those cases, this is actually the same thing just sort of dressed up in free speech. actually the same thing, just sort of dressed up in free speech. So that's Thomas. But then, man, Gorsuch. Gorsuch, man, he just like, he is on this orders list. He has feelings. Gorsuch is ready to do some stuff. And his main reasoning is like, look, fine, in 1964, when we came up with this actual malice standard, like, the world looked so different. You had three broadcast stations. You had five national newspapers at most. They all had armies of fact-checkers. They had print deadlines. It

was incredibly expensive to be one of these. Not no more. So he starts talking about the effects of the technological changes. First, he says, a lot of them have gone out of business. Network news has lost most of its viewers. Cable news, on the other hand, monetize anything that garners clicks, he writes. No doubt this new media world has many virtues, not the least the access it affords those who seek information about and the opportunity to debate public affairs. At the same time, some reports suggest that our new media environment also facilitates the spread of disinformation, some people say. A study of one social network reportedly found that falsehood and rumor dominated truth by every metric, reaching more people,

penetrating deeper, and doing so more quickly than accurate statements. All of which means that the distribution of disinformation, which costs almost nothing to generate, has become a profitable business, while the economic model that supports reporters, fact-checking, and editorial oversight has deeply eroded. And for that reason, and the reasons that Justice Thomas was citing, he would also join in revisiting the actual malice standard on defamation of public figures. David, you and I are both public figures for defamation purposes. People have said false things about both of us. I was on the front of the National Enquirer as a mistress of Ted Cruz. What I find notable about that and relevant to this discussion

is that the three pictures that were identifiable were me, Katrina Pearson, and Amanda Carpenter. All three of us were public figures, so we couldn't sue for defamation, basically. That's not a coincidence. Mm-mm. Nope, that's not a coincidence. So, I have thoughts. So they're actually intentionally defaming people

with a higher standard for defamation lawsuits. So to me, that was proof that they knew that it was false. Because otherwise, if you're going to pick random people, why would you pick public figures? Right. And what it does is it puts you in this box because you know the allegation is false, but there's this incredibly high burden of proof which is then wrapped into what is already difficult litigation anyway that would often serve only to continue to elevate the allegation. And you'll lose. You know you'll lose in the end, and it's dry sand effect. You'll give them attention yeah yeah you know

so i had a few thoughts one was well if they change the standard should i go lamborghini shopping or ferrari shopping because i got folks to sue if that's the uh if that's the new world that we're in. But the reality is, the reality is I don't, I don't know how much of a difference it would make. I'm curious about that too. Because we do have kind of a laboratory, right, that's out there.

Great Britain, okay? If you're a public figure and you want to vindicate your reputation in a more favorable legal environment, get thee to London where the defamation standards are dramatically different. But is the British press, and so the British press, Sarah. Yeah. All fact-checked, all super tied up, really, really, only the facts, ma'am. Yeah, no tabloid problems there. Yeah, it's just, you know,

you walk down the street and it's a model of decorum and truth and rationality. I think, so, I have a few thoughts. One is, just from a purely history text matter, it's kind of hard to argue with Justice Thomas that there is a long common law tradition that defamation law is not part of the quote-unquote freedom of speech that was protected by the First Amendment, that defamation has never been considered to be part of the freedom of speech that the Constitution protects.

And defamation has had a variety of standards and common law. And so there is a textual originalist argument that, no, the Supreme Court shouldn't be putting a one-size-fits-all national defamation standard together that varies depending on the identity of the person defamed. In that regard, he's got to say he's got a case. In that regard, he's got to say he's got a case. So I also find Justice Gorsuch's point that actually the Supreme Court is at least part responsible for our current media environment being upside down, quoting him.

The bottom line, it seems that publishing without investigation, fact-checking, or editing has become the optimal legal strategy. Under the actual malice regime, it has evolved ignorance is bliss. Combine this legal incentive with the business incentives fostered by our new media world, and the deck seems stacked against those with traditional and expensive journalistic standards and in favor of those who can disseminate the most

sensational information as efficiently as possible without any particular concern for the truth. sensational information as efficiently as possible without any particular concern for the truth. Yes, yes, yes, yes, yes, yes, yes. I actually, it's hard for me to imagine a situation in which I'm going to go out and sue a bunch of people for defamation. But I want different incentive structures in our media right now. I don't like this. Yeah, I think the Dominion defamation cases are going to be very interesting, how they turn out under the existing standard. But I, so I would say this, I think Thomas makes a really good argument

about the history and text of the Constitution. I think Gorsuch makes a really good argument about the practical effect of New York Times v. Sullivan. At the same time, I keep, let me put it this way. There are a couple of cases that we have had where we could have sued for defamation. I say we, me, and or Nancy, where we had a lay down hand. Like, we would win. We would win this case, right? And still, the prospect is daunting. The prospect is daunting. Will you get the compensation?

Or is the person going to be judgment proof? Will you get compensation? Will the ironic effect of the lawsuit mean a years-long amplification of the libel and the defamation which then people will exploit and turn against you so it is a it is a much more difficult it it is a much more difficult process of readjusting incentives than I think that Gorsuch is noting. But I will say this. Until I read those dissents, it's sort of like my free speech policy brain.

Like what's the best sort of free speech? Yeah, this is two different, this is like two parts of you in conflict here. Yeah. So you have the free speech culture brain likes New York Times v. Sullivan, the free speech policy brain likes New York Times v. Sullivan. If I was talking about what's the common law, what should common law be or statutory law in my state regarding defamation,

then I'm much more leaning towards New York Times v. Sullivan. The text history part of my brain is having a harder time getting around what Thomas is saying. And I would like to see some battle of the scholars. So we know we got scholars who listened to this. So this is assignment desk to you legal minds out there. I'd like to see Larview. I'd love to see Larview notes, more Larview scholarship. Is Thomas right? Is Thomas right? It's a matter of text and history.

All right. Last up in the orders list for the writings. There's one more case to discuss after this, is the Kelo case got denied. Wah, wah, wah. So Justice Kavanaugh would grant the petition for a writ of sushari. Justice Thomas, with whom Justice Gorsuch joins, dissenting from the denial in a written. So you had three votes. Where was Alito? What? What, what, what? Very confused. So this is a guy whose house got taken by a chocolate factory. But unlike the children's story, there is no Veronica Salt, Veruca? Veruca,

sorry, Veruca Salt. There's no delightful grandparents. It's just another tale of woe on public purpose. So this is outside Chicago. It's the Bloomer Chocolate Company. They wanted the land to create a buffer with nearby residential areas. They offered to buy it. The guy said no. So then they went to the city of Chicago and Chicago took it. in Chicago took it. I hate this so much. Here's what at least we know two people agree with this written part and a third one would take the case anyway.

First, this petition provides us the opportunity to correct the mistake the court made in Kelo. There the court found the Fifth Amendment's public use requirement satisfied when a city transferred land from one private owner

to another in the name of economic development. That decision was wrong the day it was decided, and it remains wrong today. Public use means something more than any conceivable public purpose. Second, even accepting Kelo is good law. This petition allows us to clarify the public use clause and its remaining limits. Kelo weakened the public use requirement but did not abolish it. In fact, the Kelo majority favorably cited an opinion that had concluded that a taking to prevent future blight violated the public use clause. David, they couldn't get a fourth vote? I'm stunned, actually. I am too.

Even for the precedent protective Elena Kagan, you don't have to overturn Kelo. Cabin public use. Weird. I thought they were going to take it. I thought they were too. But no. But I just want listeners to say,

a couple of failed predictions in the AO world does not render our prediction count. Let's just say our prediction score is pretty darn good still in AO land. Well, I don't want to cite you know, cite chapter and verse here, but I definitely have at least one email. A bunch of listeners were emailing us asking us to talk more

about the details of this case. And I said, let's see and wait, they grant cert. Yep. I had hesitations. You know, they were, there's this competition

where they judge people based on their predictive abilities. And there's, first of all, some fascinating stuff. The people who are best at predicting revise their predictions the most. They don't stick with their priors. But a part of the prediction contest is you also say how confident you are in your prediction.

So just because you say something's going to turn out A, if you're only 51% certain versus 99% certain, there's like two axes on which you're judged, both your certainty and which way the coin will flip. So I would say on the Kelo case, I did think it would be granted, but not by much. Gotcha. Well, I will say this for us. We talked about the oral argument in Fulton, and we both said, overturning Employment Division v. Smith? Yeah, no. That is not going to happen. That is not going, not this case, not this case. 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. Every mom I've ever heard of has this frame. This is my go-to gift. My parents love it. I upload photos all the time. I'm just like bored watching TV at the end of the night. I'll hop save on the perfect gift by visiting AuraFrames.com to get $30 off, plus free shipping on their best-selling frame. That's A-U-R-A-Frames.com. Use code ADVISORY at checkout to save. Terms and conditions apply. So do we want to talk about our Carson v. Macon, our main religious schools case real fast?

So we're going to talk about the argument for this. This case actually was granted. This is a follow-on to Espinoza. Remember that Montana school funding state taxpayer dollars, establishment clause, free exercise, et cetera. We will be talking about this case plenty, but the case was granted cert. This will add, you know, this would be a top tier case in another term as Espinoza was in its term with abortion and guns and maybe affirmative action coming next

term. This case will be a second tier of the top tier, I would say. Yeah, it's going to be a big case. But I want to highlight something that I did not know that friend of the pod, former podcast guest Amy Howe, highlighted in her rundown of the case. So it involves whether or not a state violates a constitution when it operates a program that provides students with money to attend private schools, but bars them from

attending schools that provide religious instruction. Okay. So this is fascinating to me, Sarah. Did you know this? The question comes to the court in a case from Maine where over half of the school districts don't operate their own high schools and instead pay for students to attend public or private schools both inside and outside the state. I knew Maine was weird. I mean, remember, they're one of the only other adopters of ranked choice voting other than Alaska. But wow, Maine, way to be way out there. That's interesting. Yeah.

Over half the school districts don't operate their own high schools and pay you to go somewhere else. Wow. I got to say, I kind of like that. wow, I got to say, I kind of like that. Give me some cash and let me find my own school. Yeah, got to say that it's not bad. But anyway, so that's going to be a big one. We're running out of time, Sarah.

Do we want to get into Fifth Circuit or do we want to get into Minneapolis? Okay, I'm just going to do Texas and Louisiana real quickly because there is hope for the future. A Fifth Circuit Court of Appeals panel, actually two different panels, said that they have to stop requiring attorneys to join pay dues to the State Bar Association in Texas unless and until it gives attorneys a better opportunity to object to the ways the money

is being spent on political partisan causes and basically things that have nothing to do with being the State Bar of Texas. Also, and Judge Willett, I believe, wrote this one about Louisiana, and Judge Willett, I believe, wrote this one about Louisiana. Same basic deal there. So that only leaves Mississippi in the Fifth Circuit with a state bar still standing. Couldn't be more thrilled.

Couldn't happen to a nicer set of people. Well, come to Tennessee, Sarah, where you don't have to belong to the state bar. You just got to pay for the Board of Professional Responsibility. Pay for them to go ahead and discipline everybody. But yeah, so that's a good case. And then the Minneapolis one.

Woo! Wow. So, Order of Mandamus out of Minneapolis. It was brought by five residents of Minneapolis who sued, saying that the city was required to hire more police. And they won. So remember, this is where defund the police started. And they just want to mandamus against the city that they must hire more police

because they are violating part of the city charter, which requires, in fact, a set percentage of sworn officers per resident. And Minneapolis is below that. Fascinating. Fascinating. You know, one of the things about American law, Sarah, is it is endlessly inventive, often ridiculously complicated,

and amazingly diverse. And so this is a perfect example of that. Defund the police in Minneapolis? Oh, wait! City Charter. That's fascinating. City Charter Section 7.3c. The police department must be funded

a police force of at least .0017 employees per resident. And they are below that. That's fascinating. As crime is spiking in the city and some of the statements from these citizens in the complaint are pretty heartbreaking stuff. And shout out to the listener who sent us this. Also, in full disclosure, I believe he was their attorney in the Upper Midwest Law Center. So congrats to y'all on the win. This is some novel law. I'm interested to see what happens on appeal. I like it. I like diving into your city charter, seeing what it says and making your city abide by its promises. Seems like kind of the American thing to do,

doesn't it? But yeah, that's fascinating. That is fascinating. Okay. We're about to wind down, That is fascinating. Okay. We're about to wind down, but Sarah, anything exciting that you did on 4th of July? We took the brisket to a pool for the first time. Oh, fun. Nice. I can't tell you how unimpressed he was. Well, we hiked. We went hiking. And and i'm wondering is there such a thing as a hiking phase of life because basically like all of my friends around here locally we were like texting each other what are you doing hiking oh really so are we? Oh, really? And it was almost every one of my close friends had like one of those, oh, here's my hiking selfie on July 4th. Is that something that's happening now? Like 50-somethings go hiking? So during the pandemic, Scott and I went for lots of, I mean, look, you're calling them hikes.

I'm going to call mine a walk. I don't know. I don't know if it's not paved. Are we definitely calling that a hike? Because I don't know what we're defining as hike. But I thought the pandemic really pushed out the hiking, walking part of me more. But no, now we're trying to go to pools and see friends. Hiking is sort of a hard thing to do with friends because you can't really walk next to them. You're sort of in single file for some of it. Right, right. No, I think the walk-hike distinction is paved, unpaved. Okay. That's the key. Well, then I've been doing a lot of hiking. Well, then I've been doing a lot of hiking. Outstanding.

Yeah, I love it. The older I get, the more I enjoy being outdoors. And the more thankful I am for the health to be outdoors and doing things. Like when we went up Mount Elbert last summer, which was incredibly challenging. Yeah, that's hard. Incredibly, incredibly rewarding. So yeah, so we did a 4th of July hike and that was fun. I did also read the Declaration of Independence to the brisket. I have a little pocket constitution that I keep on like a little coffee table in Scott's office. And he picked up the pocket constitution and I said, well, yes, I will read that to you. Um, and he kind of left about halfway through some of the grievance list,

but you know, still, I got out there some, some endowed by our creator, you know, it's worth something. Well, and I should say,

I also wrote a lot of stuff and including a New York times, uh, jointly authored in New York times op-ed that is reaffirming to seemingly about one-third of Twitter why I'm the worst person in the world. So... Yeah, I saw that. You were trending a little last night. Very.

I'm not going to say good times. I'm not going to say good times, but very interesting times. But we'll put that op-ed in. We're not going to talk about it because we have talked to death about the anti-CRT laws. Everyone who listens to this podcast knows exactly where I stand on this. But if you want to read the op-ed, we'll put it in the show notes.

But we appreciate you listening to this quasi-emergency. We'll not say emergency pod. We'll call it an urgent care pod. Yes. So thank you for listening. Please subscribe on Apple Podcasts. Please rate us on Apple Podcasts. And Sarah, I have an encouraging report on our Angry Cheerleader podcast. Yes. Do you remember how I said, if you don't like this Angry Cheerleader podcast, you're not going to like our podcast? Fair.

I've now heard from two separate people that the first time that they've ever listened to us on the podcast was Angry Cheerleader. And I think it basically hit them about the way the first time somebody uses crack hits them. Not that I would know. Not that I would know. But that was the good stuff. So I've had a report from a friend who then went to play Pandemic with different friends who said that both times she was playing with people who'd never played Pandemic and they said, oh yeah, we've wanted to play this because we heard about it on Advisory Opinions. Our reach is vast. Our reach is vast.

It's amazing. Or it's just only our second degree friends. Well, you know, depends on how many degrees of separation. It can still be reasonably vast, right? Reasonably. All right. Well, thank you be reasonably vast, right? Reasonably. All right. Well, thank you, reasonably vast listenership. Thank you,

reasonably vast listeners. No, so you stumbled over at that time, too. I even did the math, by the way, when Scott and I were talking about this. So if, you know, together we have 150 friends. Our second degree friendship is like 22,000. There you go. Reasonably vast. All right. Well, thank you for listening. However many of

you there are, and please come back on Thursday where we're going to have a special guest and no doubt more legal developments to talk about, and we will see you then. you