Advisory Opinions - Can State Officials Block Me on Social Media?

Episode Date: March 19, 2024

Sarah and David discuss Justice Amy Coney Barrett’s opinion in Lindke v. Freed—released last week by the Supreme Court—and the test for state action on social media. Is there a constitutional right to commenting on state officials’ accounts? The Agenda: -Predicting SCOTUS votes for Net Choice -Slime in the ice machine -Justice Elena Kagan’s compelling reasoning for saying “and” means “or” -Terrorism distortion and special needs exceptions to the Fourth Amendment -The 5th U.S. Circuit Court of Appeals is overwhelmed -An emergency petition on the Texas A&M drag show case -Don’t say 'Don’t Say Gay' when referring to this lawsuit -Justice Stephen Breyer and choosing pragmatism and not textualism Learn more about your ad choices. Visit megaphone.fm/adchoices

You ready? I was born ready. Welcome to Advisory Opinions, I'm Sarah Isger. Oh look, it's David French, special guest. And David, it is supreme court season supremely oral arguments start up again this week and we've got two big ones to talk about in the next episode because they're happening right now while we're taping the first is murphy versus missouri that's going to be the one on the government's ability or interest in telling social media

companies what information to take down and whether that will transform the social media companies into state actors that coerciveness question and the second one is nrav vulo another first amendmenty governmenty case in which uh you know which the government in New York sent a letter out to insurance companies saying, boy, it'd be a real shame if you insured the NRA and then something bad happened, and whether that is coercive. So coercion, the First Amendment, state action, all of those things, very sexy for this podcast, David. High sex appeal.

Yes. And I will note, not to toot this podcast horn, but let's toot this podcast horn. We were talking about this NRA v. Vulo case forever. I mean, when it first came out, I mean, it was screaming in all caps, important case, sets up a test. I mean, like everything about it was just reeking of importance. And so, yeah, and both of those cases and they're very similar. That's sort of the jawboning idea. How much can the government intervene?

And I'm actually kind of surprised that they have both of them, that they took both of them because the issues are quite similar. So anyway, we can talk about it more, but I do wonder if deciding one of them will decide the other one. Well, and there's certainly a reason they're being argued on the same day. The Supreme Court doesn't always put similar cases together, but when they do, pay attention. Yes. Speaking of which, David, we got two opinions on Friday because it's also that fun season where we still have some arguments going on, but we're also starting to get opinions from the term. It's very fun. So the Supreme Court had said in advance that

Friday was going to be an opinion hand down day. And I was doing the refresh thing at 10 a.m. just hitting refresh over and over again. We ended up getting three, but two of those were the linked cases. Linky versus free and O'Connor Ratcliffe versus Garnier. We talked about these around the oral argument. They are the questions around more boy. If there's a theme to the first five minutes of this podcast,

social media, state action and U S.S. government officials. This was the question about government officials blocking people on their social media accounts and whether that's state action, whether it's violating your constituents' First Amendment rights, or whether you as a state official are just exercising your First Amendment rights. And they were pretty different-ish cases. O'Connor Ratcliffe was out of California with some school board members, and Linkey was the city manager in Port Huron, Michigan. We'll do a little bit of a deep dive into this opinion, David. It was

unanimous. It was written by Amy Coney Barrett. It's a delightful little opinion. Yeah. But, spoiler alert, David, I don't think I agree with it. Interesting. Interesting. So, we'll get to the disagreements in a bit. First, we'll walk through everything she said. And I think it's worth highlighting, like all Supreme Court opinions, really, this is more than what it's about so most obviously of course of course this is about the trump locking on twitter and all the cases related to that which were mooted out remember when trump both left office and was taken off twitter this is basically

the the progeny of those cases that made it all the way to the supreme court but in that sort of i think more interesting context of school board members city managers and the blocking isn't like twitter where you can't see the person's posts the blocking in this case was um you can still see you just can't comment anymore so justice barrett's opinion david was a delight it really was from start to finish in its writing um and she's not known for her splashy writing she's a pretty by the book writer so far but she hasn't been on the court that long this was not a by-the-book opinion. She looked to be having a little bit of fun with it. I'll read one example.

Freed, the city manager, also posted information related to his job. He described mundane activities like visiting local high schools, as well as splashier ones like starting reconstruction of the city's boat launch get it get it get it yeah wait wait wait that's not the best that's not the best excerpt oh i mean i thought it was very good okay well it's very good but here's here to me freed's readers frequently commented on his post sometimes with reactions for example good job it takes skills on a picture of his sleeping daughter. And sometimes with questions. For example, can you allow city residents to have chickens? Freed often replied to the comments, including by answering inquiries from city residents.

Parentheses, city residents can have chickens and should call the planning department for details. Thank you, Justice Barrett, for letting all Port Huron residents know. And for those of us who don't live in Port Huron but do want to own chickens, Port Huron is open for business. Well, and also, I was just reading it and when the question was, can you have chickens in Port Huron, I was curious about the answer. So I'm just glad she closed the loop on that. I was disappointed because I thought that the actually funnier way to do that would have been a footnote versus a parenthetical footnote for those who are curious with citation yes

all right all right back to the substance so here's the new test when a government official posts about job-related topics on social media, it can be difficult to tell whether the speech is official or private. We hold that such speech is attributable to the state only if the official, one, possessed actual authority to speak on the state's behalf, and two, purported to exercise that authority when he spoke on social media. A few things on this, David. It's worth remembering what the Sixth Circuit test was and how this got to the Supreme Court. Judge Thapar wrote that opinion, and his test was, and I'm quoting Justice Barrett's version of Judge Thapar's opinion, to sort the personal from the official, the Sixth Circuit asked whether the official is performing an actual or apparent duty of his office or if he could not have behaved as he did without the authority of his office applying this precedent to the social media context the sixth circuit held that an official's activity is state action

if the text of state law requires an office holder to maintain a social media account the official uses state resources or government staff to run the account or the account belongs to the office rather than the individual office holders these situations the sixth circuit explained make an official social media activity fairly attributable to the state and concluded that freed our port huron city managers activity was not that was a much much narrower test this test amy coney barrett has laid out for the court broad pretty amorphous and the rest of the opinion is going to explain how to apply it which we'll get into here in a second david i want your thoughts on that and it's going to end with this is the end of her

opinion the state action doctrine requires lindke the upset constituent who got blocked to show that freed the city manager one had actual authority to speak on behalf of the state on a particular matter and two purported to exercise that authority in the relevant posts to the extent that this test differs from the one applied by the sixth circuit we vacate its judgment and remand the case for further proceedings consistent with this opinion. Well, David, do you know what that made me think of? What's that? The future of the immunity case with Donald Trump, because this is my prediction for exactly how that case will turn out.

They'll say, here's the test that the DC Circuit used. It wrong. Here's our test. To the extent those tests differ, DC Circuit, go try again. Go back. And that's going to really annoy people. It's why I'm setting your expectations where I think they should be ahead of time. Because this is the perfect example to me where the Supreme Court decides a question, not cases. And people don't know that except if you listen to this podcast where i'm beating it into your head over and over again but this is a really good example they don't answer the question ever

they don't tell you what freed is was it state action or not you get to the end and it's like a cliffhanger come back for season two of linky versus freed um and i will even say the reason that i think that the six circuits test yes it was a lot more narrow, but it was a lot easier to follow. Much more checkbox, much less sort of balancing-y feelings. Is that after reading the whole opinion, I still don't know where this case comes out. Which means that it could come out either way, which I think somewhat defeats the purpose. And of course, in the other case about the school board folks, that just got PC reversed. Same thing, right? The Ninth Circuit's test was different to the extent it's different from our test. Go back and try again. So David, two more things on the substance of this worth

noting, one of which the first one will apply to another case. Freed, this is our city manager, did not relinquish his First Amendment rights when he became city manager. On the contrary, the First Amendment protects a public employee's right in certain circumstances to speak as a citizen addressing matters of public concern, citing Garcetti, a case that we've talked about a lot in the First Amendment rights of state officials. This right includes the ability to speak about information related to or learned through public employment so long as the speech is not itself ordinarily within the scope of the employee's duties. Where the right exists, editorial control over speech and speakers on the public employee's properties or platforms

is part and parcel of it. Thus, if Freed acted in his private capacity when he blocked Linky and deleted his comments, he did not violate Linky's free speech rights. Instead, he exercised his own. Is anyone hearing that choice? And the social media company's First Amendment rights? Now, look, I think there's a very easy way to distinguish that. If you buy into the common carrier thing, then by all means, these are very different. But I found it interesting. And in fact, we also had a listener point out that paragraph and said,

wait, did we just get at least to know Justice Barrett's vote on net choice? I had much the same thought. I had much, and I, because in the common carrier, again, you brightly point out that the common carrier element of that could mess it up. But as we've talked about at length, you'd have to change the definition of the common carrier to do that.

You'd have to turn a goat into a duck to do it. But yeah, that part of the opinion did really speak loudly. And one other thing on the substance, and indeed, it's Justice Barrett writing, one last point. The nature of the technology matters to the state action analysis. Freed performed two actions, which Linkey objected. He deleted Linkey's comments and blocked him from commenting again. So far as deletion goes, the only relevant posts are those from which Linkey's comments were removed. Blocking, however, is a different story. Because blocking operated on a page-wide basis, a court would have to consider whether Freed had engaged in state action with respect to any post on which Linky wished to comment. The bluntness of Facebook's blocking tool highlights the cost of a mixed-use social media account.

If page-wide blocking is the only option, a public official might be unable to prevent someone from commenting on his personal posts without risking liability for also preventing comments on his official posts. A public official who fails to keep personal posts in a clearly designated personal account, therefore, exposes himself to greater potential liability. David, I read that and was like, yes, this is why this whole thing is a mess. And then we didn't even discuss Twitter, where you block someone from being able to see anything you write i mean i take her point it looks a little like the shirt left boston city

council raising flags like the answer based on this opinion to advice that i would give any public official is you need separate accounts here's your personal account and here's your professional one and if you want to humanize yourself on your professional account great post all the sleeping baby photos you want but then when someone says your baby's ugly you don't get to block them because that's your professional that's your state action account right um and this is why we can't have nice things yeah i mean i think the the subtext here and it wasn't even really subtext, was separate pages. Be clear, you know, because she also said at one point, if you have a page and it's clearly marked as personal, well, that's going to matter to us. It doesn't give you carte blanche, but the fact that it's clearly labeled as personal is going to matter.

So I think that the very, the clear message here was separate it out. However, she's also saying, and the other eight justices are also saying, but if you don't separate it out, that doesn't mean too bad, so sad. You're now a public figure for all purposes of all posting. It just means now we have to do this really complicated analysis. Gee, thanks. And it would be a lot easier if you just separated all of this out. Um, I thought that was the clear message here but sarah Justice barrett remember, you know, I said if I was a justice my name would be uh, neil coney bearsich because

Uh, I have a kind of a justice gorsuch justice barrett come melt mind meld mindset um here she's making the play for just to take all of that because I constantly use offline analogies for online speech to try to help people understand. And what did she do? She used an offline analogy for online speech, which I thought was really helpful analogy. I didn't. And that was, please go through it. I thought this a really helpful analogy. I didn't. Please go through it. I thought this was really helpful because she was talking about not everything that you say regarding your job is going to be professional speech. And she used the example of, let's say you work for the city and you're at a cookout and someone asks, what time is the school board meeting or whatever,

what time is whatever meeting? And you say at the cookout, well, it's 10 a.m. on Monday or whatever, did you suddenly in the purpose, in the cookout, become clothed with official authority as you said the meeting time? And she was like, no, of course not. That would be a private communication of a public fact. It's not a public communication. And so she brought that back into the Facebook page and said, look, not everything that you're going to forward if you work for the state that's going to be state information is going to be a public communication. thing when like oh i just like reposted a press release from the fire department or something like something that's not your thing or she gave the example of restaurant um not reviews but like who has dirty restaurants you know like mold in the ice slime in the ice machine for those who are older and from houston texas and know marvin zindler and appreciated the musical best little

whorehouse in texas it's a really deep cut slime in the ice machine. But if you posted that, well, that has nothing to do with being city manager. So fine. That's like just talking to people at your backyard barbecue about stuff that you may have learned about because of your job, but it's not in your authority. But the barbecue example she gave was that it like is in your authority. It's the same thing you just announced publicly. And now you're talking about it at your barbecue. It's the same thing you just announced publicly and now you're talking about it at your barbecue. It's the thing within your authority. You're giving people who might have missed your press conference that same information,

but it's private because it's at your backyard barbecue. I don't know how I'm supposed to apply that in the social media context. It's the same information. No, I think, so as I read it, let me tell you how I read it, Sarah, but I agree with you. This is a fact-intensive inquiry that is difficult. And if you're a public official, the easiest thing to do is what Justice would rule on any individual case when a public official doesn't do that. And the way I looked at it and the way I read it is actually, Sarah, her judgment of what is actually official is very narrow.

arrow. So for example, if I'm just say sharing a press release or sharing a product generated by say another part of the government and putting it on my page, it's information that would be shareable say by anybody. Anybody could take that link and put it on their page. Then that's not going to be state action as I read this opinion. What's going to be state action is something that's very, very specific where it says something like, and in my capacity as spokesperson for Williamson County Public Schools, I'm just making something up, I'm hereby announcing the next school board meeting. And so you had to, as I read it, she's saying, look, this had to be in their actual authority, essentially a part of your job. You're doing your actual job when you put this post up there. And that seemed to be a much narrower, at least as I read the opinion, and Sarah, I'd love to know if you think I'm totally off.

It seemed pretty narrow there that the actual post itself would almost have to give indicia of authorization. And that's how I read it, which then gives the public official kind of a lot of leeway to share a bunch of stuff. not not my reading of it i just found it a lot murkier than i think you did and that courts could come out different ways and that we'll just be doing this again later which is annoying to me because and we talked about this at the time like i almost don't care how this comes out i just want it to be a bright line rule and let's move on um and i i think part of my also confusion is i see a big difference for the reason that you just gave dav David, if you're going to say the next school board meeting is March 28th, and you've blocked someone from seeing your social media page on Twitter so that they cannot even see it, that to me is a problem. But if you've simply blocked people from being able to comment on your social media page where you put that, why do I care? So let's back up 50 years and let's say that you have a phone line, a phone number for the city manager or something, and someone just repeatedly harasses

you by calling the phone number over and over and over again all the time. So you block their number. I don't see why that would have been a problem, why you have the right to keep calling someone's phone and tying up government phone lines before we had call waiting or all those other things. Remember, you just get a busy signal if anyone else tried to call. And back up 50 years before that, you didn't have a right to go yell

at your city manager all the time. I don't care if they're giving a press conference, for instance, you don't have a right to comment. So where does this First Amendment right to comment come from anyway? I don't care. They're giving a press conference, for instance. You don't have a right to comment. So where does this First Amendment right to comment come from anyway? I don't get it. And so I don't know why the test isn't much more like a, yeah, you have to be able to see it. If you're going to use this as official stuff,

and here's our initiative of official stuff, you have to let constituents see it. Other than that, you don't have to let constituents comment. Right. And that's a super interesting critique of this, Sarah. And I actually, I think it's actually fascinating. And what I had drilled down on before when we were thinking about these cases years ago, when the Trump cases first came up, BP, before podcast, we were, I was thinking about this and this idea that I have a constitutional right to

comment on this private platform when the private platform has been temporarily loaned out to a public figure, but not really loaned out because at no point does the private platform relinquish any control at all over the content of the public officials page. Part of me wondered why this was even a constitutional issue to begin with. Agreed. Now there's a viewpoint problem here as in like our little city manager, you know, is obviously only blocking people who he doesn't like their viewpoint and he's leaving up the like good job comments. So I was also sort of surprised that in the same way there wasn't a have a personal page, have a state action page. There wasn't a, or block everyone from commenting,

which is also a setting you can have. No comments. I'm just posting stuff for you to know, but no, we're not going to have a like free for all in the comment section. But that doesn't even seem to be an option here. Why was this? I don't know. I feel like we're missing. I was missing some of the big picture, why we're doing this. And instead we have this very micro, here's our test, but why do we have a test?

And as you say, David, this isn't even there. They didn't create this platform, so to speak. They can be taken off of it at any point. We talked about this, obviously in the Trump context, quite a bit. And it's certainly coming up in the NetChoice context.

Did we even need this case with NetChoice? Shouldn't we have had NetChoice first and then decided whether we needed this? Because NetChoice is going to lay out much more sweeping analysis of First Amendment-y feelings around social media. This felt small ball. Yeah. So I'm going to agree with you almost entirely on that. I think the problem, I think we might disagree a little bit in the sense that if you're going to decide this case through a framework of a commenter having some sort of right to comment on a Facebook page, this is, I would say, the correct decision and correctly narrow as I read it. I read it as quite narrow as far as what is actual state action, with the exception that the statement that,

hey, if you block somebody, you better be sure that all of your content on your personal page is personal. Otherwise, you've just violated their constitutional rights, which is the broadest part of this ruling and it's related to Facebook's particular blocking mechanism. But so if you're going to reach this ruling, this is a good ruling. My question is, along with yours, why are we there? Why are we there? All right. Yep. To put a bow on this, these will now go back to the Sixth Circuit and Ninth Circuit, respectively. I am not the world's foremost leading expert on Mr. Freed's Facebook page or on the Ratcliffe O'Connor social media account either.

But, and this should tell you something, I have a prediction nevertheless. These cases are going to turn out exactly the same from the Sixth Circuit and the Ninth Circuit. In the Ninth Circuit, the school board officials lost. And in the Sixth Circuit, the deleted commenter lost. So we'll see. Of course, I, as you can probably tell, am not going to follow these cases very closely when they go back down. So listeners, someone let me know how these come

out or if they even keep pursuing the cases. Sometimes some of these 1983 cases are really just to see if you can get them to the Supreme Court and then they kind of go away when they go back down. 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 on the app and put up the photos from the day. It's really easy. Right now, Aura has a great deal for Mother's Day. Listeners can 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. Terms and conditions apply. Next up, David, we had another Supreme Court decision that I thought was so interesting on a variety of axes, if you will. First of all, this was a 6-3 decision. But it wasn't that 6-3.

Yep. that's six three yep justice kagan writes the majority joined by the chief justice thomas alito kavanaugh and barrett justice gorsuch writes the dissent joined by justices sotomayor and jackson so at the end of the term when people are doing their like stats about how much the Supreme Court sucks and how partisan it is, just you watch. Some idiots out there are going to include this case as a 6-3 decision. They're going to tell you how many 6-3 decisions there were. And I want AO listeners to be thinking to themselves, wait, wait, you need to distinguish. It needs to be 6-3 along ideological lines if you want to tell a faithful story. Otherwise, the rest of the 6-3 decisions actually undermine your case that the court is so ideologically driven because this is fascinating. Okay, next axis to consider this case on is simply Justice Kagan's writing style.

We've said this before. She's such an incredible writer on the court. This is a very good example because basically no one is going to be able to tell you what this case is about because it's said this before. She's such an incredible writer on the court. This is a very good example because basically no one is going to be able to tell you what this case is about because it's incredibly complicated. It's really hyper texty. And I don't mean textualism. I mean, there's a lot of text you're having to get through here. And the way Justice Kagan lays it out just has you understanding the question for the court better than any of the advocates like anyone else and that's the sign of a very good writer it means you understand it so well and you have such command of the language that you can convey complicated things so i'm just going to read her

first two paragraphs because god knows i'm not going to be able to put it in my own words any better than she did the safety valve provision of federal sentencing law exempts certain defendants from mandatory minimum penalties thus enabling courts to give them lighter prison terms to qualify for safety valve relief a defendant must meet various criteria one of which addresses his criminal history that criteria in stylized form requires that a defendant quote does not have a b and c where a b and c refer to three ways in which past criminality may suggest future dangerousness and therefore warrant a more severe sentence. In brief, with details below, A, B, and C are more than four criminal history points,

a three-point offense, and a two-point violent offense. Listeners, you don't need to worry about that if you're not already a federal prosecutor. it doesn't, for our purposes in this podcast, that doesn't matter. A, B, and C matter. The question presented is how to understand the criminal history requirement. The government contends that the phrase, quote, does not have A, B, and C, end quote, creates a checklist with three distinct conditions. On that view, a defendant meets the requirement and so is eligible for safety valve relief if he does not have A, does not have B, and does not have C. Or stated conversely, a person fails to meet the requirement and so cannot get relief if he has any one of the three. The petitioner here instead contends that the phrase does not have A, B, and C sets out a single amalgamated

condition for relief. On his reading, a defendant meets the requirement and is eligible for relief so long as he does not have the combination of A, B, and C, or put conversely, he fails to meet the requirement and cannot get relief only when he has all three. Today, we agree with the government's view of criminal history provision. Okay, I want to read one more part of justice kagan's opinion because it's so delightful and maybe is hitting me right like maybe this was written for me that's all i'm i just i don't know it feels like it might have been uh she's explaining why she's and the majority the the six in the majority are going going to hold that A, B, and C means,

David, you're going to hate this, or, right? And means or, suddenly. It means A and B and C. And she's going to explain other usages where that's similar. The practice is pervasive, indeed inescapable in every kind of speech and writing. Consider this, perhaps half-remembered line from childhood. Again, not half-rem half remembered for me right now quote on saturday he ate through one piece of chocolate cake one ice cream cone one pickle one slice of swiss cheese one slice of salami one lollipop one piece

of cherry pie one sausage one cupcake and one slice of watermelon david do you know what this is from well well i'm just looking at it oh my gosh your kids are too old you've forgotten i did now i see now i see it's been too long it is from the very hungry caterpillar and i really appreciate that she included the page numbers. Nate right now is in a point where like he actually wants to go through and read the page numbers for the whole book. Oh, funny. And then we go back and read the actual text because he can't read yet, but he can read numbers.

So really appreciated that call out as well. I'll continue with her point. The introductory words ate through apply independently and equivalently to each of the 10 foodstuffs that follow. Or, if that example seems too trifling, take a couple from the Constitution. Article 3 provides that the judicial power shall extend to all cases arising under this Constitution, the laws of the United States, and treaties. states and treaties. That statement means, but says more concisely, that the judicial power extends to cases arising under the Constitution, extends to cases arising under federal law, and extends to cases arising under treaties. The provision does not, as Pulsifer's view might suggest, limit judges to hearing the few cases arising simultaneously under all three kinds of

law. She goes on to mention Article 1 examples as well. David, I feel like we talked about this case briefly around oral argument, and you were very much, and doesn't mean or. And I was like, I don't know, maybe and means or. Justice Gorsuch is livid in the dissent. And look, just from a 6-3 analysis this is fascinating because we've seen justice kagan break with sotomayor and jackson in some pretty specific and sometimes surprising uh types of cases the most famous i think at this point is the andy warhol example over a copyright law where Kagan's going to write the majority and Sotomayor is going to write the dissent. But here's a fascinating example. I don't

think where Gorsuch is surprises anyone, right? Because the dissenters are the ones who would let more people out of jail and the majority is going to keep more people in jail. That's the consequence of this. And certainly on criminal justice stuff, Justice Gorsuch is taking up the banner of Justice Scalia and running it up the hill of every break should go to criminal defendants, including in sentencing here. And I've gotten very frustrated with those who have tried to make the case that this court is really anti-criminal defendant, but then only use death penalty cases. Death penalty law is a hot, stinking, festering, mold and cockroach ridden mess of law because of some of the statutory framework involved as well.

It's like totally separate from anything else having to do with our criminal justice system. I'm not saying you need to like where death penalty law is, but you cannot talk about one as an example of the whole because they're so, so different at this point. Anyway, so that's the interesting 6-3 breakdown here as you have Kagan basically coming on a hyper-textualist, I don't mean hyper in a bad way, I just mean a very textualist and originalist to some extent. Like, what did they think they were writing at the time? Right.

And coming out not consequentialist. Meaning, I think that Kagan would like more people to get out of jail, all things being equal, under the First Step Act. But, not what it says, she says being equal, under the First Step Act. But not what it says, she says. So really interesting case, David. Wasn't sure if you had thoughts to share with the class? Yeah, I mean, I'm still with Justice Gorsuch on this, although Kagan made the best case I've ever seen for and meaning or. I know! It's compelling! It is actually. You think there's no way. You're starting out, you're like, nobody could ever convince me that and means or. And then you read it and you're like, well.

Maybe, but I just, I like this. First, as the court agrees, and is a conjunction. A word whose function is to connect specified items. I like that Gorsuch has, here is just the definition of and. And then to just bring it home, he says, second and more specifically, and is an additive conjunction. In other words, come on, guys. And means and. And what does and mean? I mean, come on.

And so I did appreciate that. But I will say that, and I also think that Gorsuch makes a pretty compelling argument that how do we know and really means and here? One of the ways we know and really means and is if we read and as and and not and as or, then it actually extends the reach of the statute. It's effectuating the purpose of the statute more effectively when and actually means and. So I thought that was a pretty compelling argument. But yeah, as I said, Kagan made me go, hmm, oh, interesting.

Well, David, it reminds me of these two books. I just finished Fluke by Brian Klass. And by the way, if you're a Dispatch member, you have access to the Dispatch Book Club where, and right now you're getting a preview of the future books we will be talking about on Dispatch Book Club, because I was super into Brian Klass's Fluke. You think it's going to be a book about chaos theory, and then spoiler alert, he's going to convince you that free will doesn't exist. And it kind of reminds me of the and is not or. But that led me to this other book, which is incredible, How Not to Be Wrong, The Power of Mathematical Thinking by Jordan Ellenberg,

one of Bill Gates's 10 favorite books, a New York Times bestseller, in this section right here, David, that I'm going to do a dramatic reading of. If you add up 10 terms of this sequence, you get about 0.999. If you add up 20 terms, it's more like 0.99999. In other words, you are getting really, really, really close to the store, but no matter how many terms you add, you never get to one. Zeno's paradox is much like another conundrum. Is the repeating decimal 0 9999, etc. equal to 1? I have seen people come nearly to blows over this question.

It's hotly disputed on websites ranging from World of Warcraft fan pages to Ayn Rand forums. I would argue that's not wide-ranging. But,

that's actually the same people. I know people on both of those websites. Okay. They're friends of mine. Venn diagram, near circle. Near circle.

And they're all 15-year-old boys. Our natural feeling about Zeno is, of course, you eventually get your ice cream. But in this case, intuition points the other way. Most people, if you press them, say 0.9999 doesn't equal one. It doesn't look like one, that's for sure. It looks smaller, but not much smaller. Like Zeno's hungry ice cream lover gets closer and closer to its goal, but it never, it seems, quite makes it there. And yet, math teachers everywhere, myself included, will tell them, no, 0.9999 is one. How do you convince someone to come over to my side? One good trick is to argue as follows. Everyone knows that 0.3333333 equals one third. Multiply both sides by three and you'll see 0.9999 equals three thirds and three thirds

equals one. If that doesn't sway, you try multiplying 0.9999 by 10, which is just a matter of moving the decimal point one spot to the right. Now subtract the vexing decimals from both sides. The left-handed side of the equation is just 9 times 0.9999, because 10 times something minus that something is 9 times the aforementioned thing. And over on the right-hand side, we have managed to cancel out the terrible infinite decimal and are left with simply a 9.

So we end up with 9 times 0.999999 equals nine. If nine times something is nine, that something has to be one, doesn't it? Anyway, it goes on for pages trying to convince you that 0.999999 equals one. And then spoiler alert in the end, he's like, yeah, we all know it doesn't equal one. But this felt like and doesn't equal or, or does it? So you know what? Math will teach you everything. David, we have a few more housekeeping things before we get to a nice little Breyer-flavored dessert. First up, Professor Oren Kerr over at Berkeley, I just thought had a really fun, interesting thread. He's, of course, a Fourth Amendment expert, and lots of people like thinking about the Fourth Amendment in their lives. It's probably the thing that in some ways is the

constitutional amendment you interact with most other than maybe free speech. Right, right. Yep. So I'm going to read you a little piece of his take on New York City's new plan to do randomized searches of bags entering the subway. Is it constitutional? Professor Kerr says, I'm skeptical. This issue came up in a challenge to a New York City subway bag search program to stop terrorism in the subway after 9-11. The Second Circuit said this was allowed if the point was to search for bombs and terrorist weapons, as that's a special need beyond law enforcement.

In contrast, this is being framed as specifically about preventing violent crime. I gather if there is a challenge, New York will argue that this is about stopping violence and that that's a special need, not just investigating crime, but preventing the loss of life from violent crime. They'll probably rely on cases like, oh gosh, Torcivia, which upheld taking away guns of people taken away for emergency psychiatric evals to prevent the guns being used for suicide or domestic violence but i am skeptical special needs goes so far this seems a lot like the checkpoint in response to a surge in violent

crime struck down by the dc circuit in mills vdc crime control not a special need the court held anyway even if the court rules that this is a special need, it needs to satisfy reasonableness review, but that's pretty fact-specific and hard for me to assess at this point. As always, stay tuned. David, I think this brings up a lot of different Fourth Amendment feels that I have. Namely, why is there a special needs exception to the Fourth Amendment here that this feels like a terrorism distortion? Yes, yes, there is a terrorism distortion

at work there. That is fascinating. And I wondered much the same thing, and I found the thread to be incredibly helpful, but I wondered much the same thing about, wait a minute, how much of a search am I in essence consenting to merely by taking public transit? The act of taking public transit and understand there are vulnerabilities in public transit and there are absolute state interests and perhaps even a compelling state interest. And well, not perhaps, I would say there is a compelling state interest in securing the subway system and public transit more broadly, but how much is that going to permit a warrantless search or random searches of bags? It's fascinating. We'll put the thread in the show notes. All right. Next up, the Supreme Court declined to hear an emergency petition on that west texas a&m drag show ban case if you remember the president of west texas a&m said the drag shows were not

going to be allowed on campus anymore because they were degrading to women and sort of arguing under title six in fact he had no choice the drag shows would present a sort of severe and pervasive harassment and degradation of women. And so they're banned regardless of the viewpoint kind of that they're meant to be promoting. A group that wanted to have a fundraiser for LGBTQ issues has argued that that violates their first amendment rights that you can't just ban drag shows and the fifth circuit has kind of been sitting on it and it hasn't really been moving and so they tried to use that as a reason to go with this emergency petition to the supreme court a the case itself is quite interesting but actually i found this effort to get the supreme court to basically rebuke the fifth circuit for being too slow to be pretty fascinating uh the supreme court declined

to do that similarly i think in a lot of ways to how the supreme court declined to take jack smith's invitation to skip the dc circuit like sorry yeah i understand your frustration that you wish your thing was moving along faster in this case the students are worried the school year will end and they won't know. They won't be able to host their drag show and their rights are being violated, according to them, in the meantime. And then they're going to graduate and then like, come on, we never got relief for no good reason. Similar to the Jack Smith, Donald Trump argument, the Supreme Court gnaw-dogging both of them. So I think that's very consistent. It's something else interesting going on, though, at the Fifth Circuit, because we are seeing a lot

of administrative stays, meaning they're not staying because they've weighed the value of each side or the likelihood of success on the merits or irreparable harm. It just is an administrative stay, and then it keeps getting administratively stayed for a long time. In this case, it's not an administrative stay. It's a real stay, or not, as it were. And the ban is still in effect. But then they don't ever sort of get the opinion out or whatever else is going on. David, in a Biden administration, the Fifth Circuit is getting so much incoming stuff.

Yeah. Their caseload has skyrocketed in a very similar fashion to what the Ninth Circuit was experienced during the Trump administration. I don't think this is good. No. No. And so, yes, it's taking them a long time to get stuff out. I think people are reading into that ideological bias. I don't want to promise you like you can't find some examples where it looks like ideological bias. But I wonder if you looked at. But also having litigated First Amendment cases, including seeking injunctions in circuit courts after district courts deny injunctions, etc. Nothing about this timetable felt to me actually really all that unusual. So I found the decision

to go to the Supreme Court fascinating. And the Supreme Court's decision to not hear the case completely predictable. I would have been I would have fallen out of my chair in shock if the court had taken this case because it is actually in spite of the fact that it's a drag show. a million weird reasons, this has become a central sort of First Amendment flashpoint in American culture. It isn't a particularly important First Amendment case relative to all other First Amendment cases. It's a conventional First Amendment case. And so taking a conventional First Amendment case up to the Supreme Court on emergency docket was a Hail Mary. I mean, it was absolutely a Hail Mary.

And it was interesting to me that, you know, there were all these headlines about the Supreme Court letting this, you know, drag show ban for now stand and really didn't communicate exactly how Hail Mary this was. It was so Hail Mary that, in fact, granting it would have been far more news than denying it. So here we are, it's sticking with the Fifth Circuit. The interesting thing about the Fifth Circuit, though, to me, Sarah, is there are real divisions in the Fifth Circuit around the First Amendment. In some ways, it's one of the most interesting circuits because of those divisions, because we had a different outcome from the 11th Circuit and the net choice cases from the Fifth Circuit. And, you know, we've talked

about our Facebook journalist, for example, that came out of the Fifth Circuit and the en banc decision of the Fifth Circuit. It's the most interesting circuit of all of them for the differences amongst the conservative judges on free speech issues. So I'm going to be actually quite interested to see how this thing turns out. Because if this was the 11th Circuit, I'd feel like, yeah, drag show is going to have to be held. Fifth Circuit, I'm not so sure. Depends on that panel. Here's what's weird for me in our cultural moment i think it's a pretty easy call that this is viewpoint discrimination that it violates the first amendment but if you take it out of our current cultural moment and maybe you can't the idea of

someone outside of the group caricaturing a different group, right? This is men who dress up as women, as caricatures of women. Big hair, huge boobs, sky-high heels, massive amounts of lipstick and eye makeup. I mean, it is an insulting caricature of women. And we would never accept that, for instance, we don't with minstrel shows. I don't think anyone thinks that you have to allow minstrel shows on a college campus or that that wouldn't violate Title VI if you had multiple minstrel shows on campus every year as a fundraiser. Obviously, I think that would violate Title VI. So I don't know.

Again, step out of our current cultural moment. I don't know again step out of our current cultural moment this doesn't seem as easy a case as it does when you first sidle up to it yeah you know I think the difference would be that the you know the minstrel shows and blackface is reached a point where it is absolutely universally reviled as opposed to this more much more codes on a partisan basis than an a sex basis but i guess that's my point should that matter if it is caricaturing like does it matter what the apps like the actual description is or does it matter what it is in our cultural moment right now how it's accepted by other people and i very much like yep in our cultural moment how other people view it it is not seen as degrading to women by the majority of our culture.

But when you're just describing it sort of objectively and factually, it is one group caricaturing another group that they're not a part of on the basis of an immutable characteristic. I do think that we do actually have an interesting case involving symbolic expression that is completely wrapped up in its cultural meaning, and that would be, for example, cross burning. So there's an example of which a cross could burn, and it's a different religion, it's a different sect, it's a different whatever you name it and the meaning is totally and completely different than the way it has been interpreted for a hundred plus years in our in our culture i love that example because it is very possible to imagine some yeah like new reason to set crosses on fire that are meant to send a totally different message reason to set crosses on fire that are meant to send a totally different message right right so the message that is being sent yeah it's a very interesting that's what gets into the court's job to parse the message or is it an objective analysis and i think you're right that thus

far it has not been an objective analysis but in these cultural moments where different people have totally different realities that they're living in and like so we're not sharing a cultural moment in a lot of ways the objective analysis may be the better way through some of this but it makes title six really much messier than also anyway as you say uh it is an interesting case. All right, one more amuse-bouche before we get to our briar dessert. David, we have a settlement coming out of Florida. Yeah, so what's interesting,

this is a settlement and I don't, the only reason I'm going to use this phrase is because if I say HB 1557, you don't know what I'm talking about. But this is dealing with a settlement dealing with Florida's so-called don't say gay law, which was never a don't say gay law. It was a law that prohibited instruction on sexual orientation and gender identity within certain age ranges. Later on, the age range got dramatically expanded. Lawsuit was filed.

We've talked about this case because the interesting aspect of this case was, on the one hand, you would say, wait a minute, given the power of the state over K-12 curriculum, given the power of the state over the words of K-12 teachers when they're teaching. Remember, longtime AO listeners will know that, for example, a college professor, even a public college professor, has their own free speech rights.

The circuit courts have sort of sorted through all of the Supreme Court case law and settled on that. But K-12 teachers, when they're teaching their official capacity, do not. The state can absolutely dictate how they teach any given topic. And so when Florida passed the law, on the one hand, you would say, you might disagree with the law, but why would you sue over it because there's maximum state authority over k through 12 official capacity speech but then you looked at the law and the law was law was actually very broadly and vaguely written sarin and i sarin i broke down some of the vagueness at length in a previous podcast back when the law first was passed. And so there was a settlement reached in the case, and the settlement was, in essence, deciding what it means to do classroom instruction and what is

not classroom instruction. So all of the elements of what you would call sort of formal curricular instruction were included in the Don't Say Gay ban, anything that would not be sort of considered formal curricular instruction, such as talking about your family or having books that deal with LGBT themes in the library or answering questions from students, all of that is going to not be encompassed within the ban. And so it was really what the settlement agreement does, essentially, is it more precisely drafts the statute. And so both sides claim total victory. You had the plaintiffs saying, we won. Teachers can talk about their families. They can answer questions. There can be LGBT-themed books in the library. And Florida is saying, we won. We can dictate what the formal curricular instruction is. And so that's the outcome. Both sides are claiming victory. And I think the actual settlement roughly tracks where the case law is.

the case law is. Personal expressions are going to be protected. Libraries are kind of their own thing with their own standards around them. And the formal curriculum itself is the responsibility of the state. The actual settlement makes sense, Sarah. All right. It's Justice Breyer time. Justice Breyer has a new book coming out called Reading the Constitution, Why I Ch chose pragmatism not textualism uh i'll be interviewing him about this book may in may definitely may may 23rd and boy he's feeling a little spicy in this interview with the new york times david i'll just read a couple pieces of it because it pretty much attacks everything i think the dobbs major's hope that legislatures and not courts will decide the abortion question will not be realized, he wrote. In the interview, he said, there are too many questions. Are they really going to allow women to die on the table because

they won't allow an abortion which would save her life? I mean, really? No one would do that. And they wouldn't do that. And there'll be dozens of questions like that. The book, this is now Adam Liptak, the reporter writing, the book is a sustained critique of the current court's approach to the law, one that Breyer says fetishizes the text of statutes in the Constitution, reading them woodenly without a common sense appreciation of their purpose and consequences. Seeming to speak about Gorsuch, Kavanaugh, and Barrett, he writes, recently, major cases have come before the court, while several new justices have spent only two or three years at the court. Major changes take time, and there are many years left for the newly appointed

justices to decide whether they want to build the law using only textualism and originalism. He added, they may well be concerned about the decline in trust in the court as shown by public opinion polls. So look, on the one hand, Justice Breyer and I violently agree on this existence of a second axis, whether you want to call it institutionalism or consequentialism. I mean, he seems to be talking about both here. The trust in the court as an institution, as a reason to think through your judicial philosophy, the consequences of the questions that will now result from the Dobbs, that's pure consequentialism. So we definitely agree on the y-axis. We seem to disagree on the hope that this

isn't the court's job. That yes, we actually do want the legislature making these hard political culture war calls that the more the courts are doing that the more it will continue to drag down the courts and if you care about the institution you should want it to be the legislatures who get blamed and for them to have to take responsibility for their decisions not just throw everything to the courts so david i i think we agree a lot on the problem, and I think he and I are on polar opposites on the solution. Well, let's just take the abortion issue. He draws it up as a binary when it's not a binary. I don't think the court was saying in Dobbs that therefore everything related to abortion now is put in the political sphere, there are still going to be constitutional rights that

are implicated in abortion questions apart from the sort of right to privacy that was at the sort of the heart of the Roe analysis. So there's going to be a mixed resolution to this as there are with most matters where some things are the province of the legislature and some things are not and that's liberal democracy so liberal democracy is democracy with guardrails that applies in all circumstances including it will and is applying in the abortion circumstance so you're going to have some questions about right to travel for example that were forecast in the dobbs decision you might have have questions if a legislature ever passed a law that would not even allow the life of the mother to be taken into consideration,

there's going to be some interesting constitutional questions around that that aren't necessarily related to the right to privacy so much as how much can, in what circumstance can the state sort of conscript your life is a separate kind of question. So I do think that's a mix. That's a false dichotomy. I think one of his critiques of originalism resonates with me more than others, where he talked about originalism requires justices to be historians. I don't think overall that's true. As we've talked about with originalism, in many ways, there are ways of doing originalism that don't require you to dive into what every state legislature did for 25 years after an amendment was passed, for example. But I do

think that sort of the text history and tradition version of originalism has some issues we've talked about, but sort of this idea that it's the role of the judges to not legislature, or in an example of a constitutional amendment, a super majority of the elected legislatures ratify text, and we're not going to make that fundamental and central to the analysis, that is, that's where we start to get into the problems of judicial supremacy that really, I think, are far more destabilizing over time. And I think a lot of folks on the left side of the spectrum, who for years were very happy with the way that justices sort of applied their own moral sense when the justices were on their team, don't realize how destabilizing that was for the country writ large. And Roe is example number one.

Roe was a destabilizing decision. I'm not going to say Dobbs wasn't. I don't think Dobbs is stabilizing. It's still up in the air. But Roe was a destabilizing decision. And I think that those folks who agree with Justice Breyer neglect the extent to which that approach is actually destabilizing. I think you put that very well, that there is something really attractive when it's Justice

Breyer saying, think about the consequences. We should have judges take into account the values. This is a quote from him. Judges should take account the ways in which our values as a society evolve over time as we learn from the mistakes of our past. Boy, I mean, it's hard to disagree with that when it's the very kind, wise, smart Justice Breyer saying that. But now imagine it's a judge you really, really disagree with saying that, who you don't think is acting in good faith, let's say, or you just fundamentally disagree with their views on society. Imagine Justice Thomas saying that same quote. And then I want to do like a focus group of people on the left, and it's Justice Thomas with that quote,

and people on the right, and it's Justice Breyer with that quote. And I think very quickly, you see the problem with that method of judicial interpretation and why it's destabilizing compared to yeah look we're going to try to figure out the best we can what the legislature was trying to do here I think there are real disagreements we can have over whether judges are actually doing their best to determine what the legislature did mean in the text versus finding a way to get to where they would have been as legislatures basically i don't think they're intentionally doing it but like it's sort of subconscious like well i can imagine being a legislator and this is

what i would have meant by the text therefore it's what they meant by the text um i think that's a problem with originalism and textualism for sure but in the sort of platonic ideal of originalism and textualism that's what you're trying to do is just figure out what the politically accountable branches were attempting to do whether that is constitutional according to what the founders were trying to do and that's it versus picking nine people who have their fingers on the pulse of our values of society and what we've learned from the past. And by the way, they're in their 70s and 80s. Yeah. Ruh-roh.

Yeah. I mean, think about the internet cases. And, you know, Justice Kagan was very self-aware about this when she said, we're not exactly the nine greatest experts on the internet. when she said we're not exactly the nine greatest experts on the internet um if you are taking a position that sort of says you are applying a kind of rule of reason common sense final analysis that is not a analysis dependent fundamentally and primarily on the text that again that that's sort of what i would call judicial supremacy then. Then that is in no way more inherently stabilizing. There's not a universe in which that's more inherently stabilizing. It feels more stabilizing maybe for like a median reader of the New York Times because

they appreciate Justice Breyer. Heck, I admire Justice Breyer a great deal. I don't like this approach. But yeah, it is, I just reject the idea that that's fundamentally more stabilizing to our body politic. The bottom line is, Sarah, as divided as we are right now in this country, I don't think there is such a thing as a, quote, stabilizing judicial method of interpretation because somebody's always going to be supremely ticked off at one outcome, and they're going to ascribe malign motives to that outcome or to the architects of that outcome.

And so I think the mere fact that the Supreme Court settles issues now or answers questions now is the central destabilizing factor of the court because we just are at each other's throats. Yeah, and I think Breyer has a correlation causation problem. He's pointing back to the time when it was, you know, he, justices Sandra Day O'Connor, Souter, and Kennedy, who were all very high institutionalists and see, look what a stable time the 90s were well i might argue that's not why it was a stable time in the 90s because the four of you were institutionalists that in fact there was a lot of other stability in our political moment how bill clinton gets elected like look at what bill clinton ran on that was so popular, this third way, you know, sort of marrying in

the middle conservatism and liberalism and all of that, like the fact that that was popular should tell you about the mood of the 90s and that, okay, yeah, so the court as an institution was more popular then, everything was more popular then. And so of course it was easier to decide on the cultural moment and what we as society valued and sort of those high institutionalist ideas where you didn't need, I think, as much. Some shared like, well, we're just going to look at the text and do the best we can with it. And we can never run the other experiment. But I really believe that if you had Breyer, O'Connor, Souter, and Kennedy on the court right now, it would not feel any more stable because the questions that they're deciding are so inherently destabilizing to the country because they're not being decided by the politically accountable branches. Yes. And your point about the 90s where you sort of had, I mean, look, this was the halcyon days of sort of a big consensus on American economic policy and, to a large degree, a lot of social policy. If you go back and you look at the Religious Freedom Restoration Act, for example, which Bill Clinton signed, overwhelmingly passed. Religious Land Use and Institutionalized Persons Act overwhelmingly passed. I mean, there was elements of Clinton's agenda were so conservative, they could never pass now, even through Republican-controlled legislative organs. I mean, it was definitely a different era. And it's so funny you brought that up, Sarah. know if you saw over the weekend on on social media this this chart of teens sense of optimism

about the future and how their pessimism was skyrocketing beginning in the early 2000s and in the 90s the optimism was skyrocketing of teenagers just which is a reminder of when a nation wins a giant confrontation with an opposing superpower, has a decade of unprecedented economic growth with no real opponents on the world stage, people are going to tend to like that. People are going to tend to like that. All right. With that, we have lots to talk about for the next episode maybe too much so things we're definitely going to follow are the uh supreme court arguments in those first amendment cases that we talked about yes i'm aware of the ruling in the fannie willis trial it's not a trial of fannie Willis. She's, remember, the prosecutor. We can talk about our

feelings on that, though. I don't know that we have anything super new to say on that. And there were some interesting circuit decisions. Plus, and here's your drumroll moment, a group of federal judges went over to Israel last week. They are home. And I think we may be getting to talk to a few of them about their experience. And we haven't done a lot of comparative law on this podcast, David. Interesting. I'm very intrigued by this. So, dun-dun-dun, comparative law. Next time on Advisory Opinions. Ooh, ooh, ooh Yeah! Ooh, ooh, ooh