Advisory Opinions - Chicken Wars

Episode Date: January 20, 2021

Who will preside over soon-to-be-former President Donald Trump’s impeachment trial after he leaves office? Will it be the Senate’s president pro tempore? The chief justice of the Supreme Court? None of the above? On today’s episode of Advisory Opinions, our hosts also dive into the nitty gritty details of Trump’s forthcoming—and second—impeachment trial before they discuss the latest updates in social media regulation, David’s take on the South’s honor culture, and Sarah’s review of the five best chicken sandwich chains in America. Show Notes: -“Free Speech and the Regulation of Social Media Content” by the Congressional Research Service. -Red Lion Broadcasting Co. vs. FCC, Turner Broadcasting System, Inc. v. FCC, and Reno v. American Civil Liberties Union. -“Where Does the South End and Christianity Begin?” by David French in The Dispatch. Learn more about your ad choices. Visit megaphone.fm/adchoices

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You ready? I was born ready. Welcome to the Advisory Opinions Podcast, the Inauguration Eve Advisory Opinions Podcast, with all due apologies to those folks in my Facebook feed who are saying that, no, the inauguration is not happening. No, it is. It's happening. Although those of you have stocked up on supplies, according to many rumors transmitted by some cousin's best friend who works in the NSA, Just hold onto those supplies for tornado season. We are going to cover a lot of ground today. We're going to talk about the impeachment trial, who will preside over the impeachment trial, and Sarah is going to give us an informed opinion on that, and I am just going

to sit at her feet and listen. And then we're going to talk about social media again. Why are we talking about it again? Because we get a lot of correspondence with different ideas about how government can regulate social media, and we're going to walk through some of those. It's a fascinating discussion. I think, Sarah, we've got as much correspondence about that, almost as much correspondence about that as we've gotten about the proper pronunciation of bell-nap. Then we're going to talk about my Sunday newsletter,

which talked about the shame, honor, culture in the South. And I have to say, of all of the Sunday newsletters that I have written, I got more thoughtful correspondence about that one than any other. Not to say it was the most read, but more thoughtful correspondence. And then Sarah is going to give us her possibly correct, we shall see her possibly correct conclusion on what is the best fast food

chicken sandwich. And that's going to come at the end. You're not getting any hint. You're going to have to wait until the whole podcast to hear that conclusion. Sarah, shall we start? Let's do it. Okay. So we've talked about impeachment a lot on this podcast. I don't think this will be the last time actually, because the Democrats have said that they are going to hold an impeachment trial into a former office holder, that being the former president, Donald Trump. We've talked about that. That was what the Belknap episode was all about. But there is a little side question here that I find interesting. And that is, who will preside over this hearing? Because it says, the Constitution that is, the Senate shall choose their other officers and also

a president pro tempore in the absence of the vice president or when he shall exercise the office of the president of the United States. The Senate shall have the sole power to trial impeachments. When sitting for that purpose, there shall be an oath or affirmation. When the president of the United States is tried, the chief justice shall preside. Okay, so if it's a former president who presides, is it the president pro tempore? Is it the chief justice? Is it C, none of the above? Or is it D, all of the above? Just to keep this in multiple choice land here. let's just talk about who our players are. Obviously, when she takes the oath of office tomorrow, the vice president will be Kamala Harris. The Senate president pro tempore, as the Constitution just said, is actually elected from the members of the Senate. Now, that being said, it is usually, and certainly has been in recent times, said, it is usually and certainly has been in recent times the most senior member of the majority party. But for those savvy listeners, technically there is no majority party. And Chuck Schumer and

Mitch McConnell have been working out sort of the deal by which it looks like all of the committees will be exactly split between the two parties in terms of membership. The chairmanship will be held by the Democrats and the majority leader will be held by Chuck Schumer. Because of that, I'm going to assume that the Senate pro tem, sorry, the president pro tem will also come from the ranks of the Democrats. In that case, the most senior member is also a former president pro tem, which makes him the president pro tem emeritus. He is the only US senator to have served during the Ford administration, David. Well, in fact, we don't even have a US senator who has served during the Carter administration. Okay, technically kind of. So Patrick Leahy was sworn in on January 3rd, 1975

as a US Senator, which is wild. That is amazing. Yeah. Now, because he has already served as president pro tem, I do think they will still elect him again, but there is some chance it would fall to Dianne Feinstein, who was next in line. She was sworn in in 1992. So way, way after. Patty Murray, by the way, comes next, 1993. So I hedged on that Carter thing. Chuck Grassley was sworn in on January 3rd, 1981. So technically speaking, he served two weeks in the Carter administration. But I mean, like we're not counting that, right? Right. No, no, not that's technical, but somehow can it be technically true, but substantively inaccurate. That's right. Okay. So that means our choices are really between Kamala Harris and Patrick Leahy.

Now, this is where it actually, to me, is kind of relevant about the former officer thing. When the president of the United States is tried, the chief justice shall preside. Now, that's all it says. And as a pure textualist, I think it's pretty clear that Donald Trump is not the president of the United States. He would not be in that office. Therefore, it's really easy. The chief justice does not preside, except if the person holds the office of the president. But we could also do some originalism here. At the time, of course, what they had in mind, I think we can assume, is that if the president of the United States is being tried on articles of impeachment and the vice president is presiding and the president is

then convicted by two-thirds of the Senate, the person who becomes president would be the vice president who's presiding over this. And while it is largely a formalistic role, there's some awkwardness there, of course, especially if the vice president supports the president, maybe even more so if the vice president doesn't support the president. So that's the reason why you have someone other than the president pro tem stand in if it's reason why you have someone other than the president pro tem stand in if it's uh the president or the vice president stand in i mean um so in this case i think it's pretty obvious that the chief justice will not preside there's just no real argument for it in the text or in the original context. And he probably has no real desire to do it, does he, Sarah?

Nobody has any desire to do that job. No, no. Lord knows he didn't have a desire to do it the first time. So in that case, will the vice president sit in on a former president's trial? president sit in on a former president's trial? Or will she actually leave it to the president pro tem, in this case, most likely Patrick Leahy? Really, the answer is either one would be fine. My guess is that actually Harris would step aside and have Leahy do it. What do you think, David? I would imagine that she would, for this reason. So far, Biden has been pretty hands-off about all of this, that he is allowing the Congress to do what it does. And I don't think

that he wants his political capital invested in the outcome of an impeachment trial. He wants that to be a separate thing. And so I think if his vice president participates in that prominently in an impeachment trial, then it becomes kind of seen as part of his early administration. So I think he wants to bifurcate. And politically, it does no good

for Kamala Harris to preside. No, she has no real ability. That doesn't mean that she can do anything about it. It's a sort of more of a ministerial position than anything else. But it would tie her to it. And don't forget, folks, just because the Senate is tied, you have to have two-thirds to convict regardless. And so her vote as the tiebreaker won't come into play at all.

And whether you'll hit that two thirds is, to me, whether it's the chief justice, the vice president, or the president pro tem will be entirely irrelevant. Right, right. So I have a question for you, and I'm embarrassed I don't know the answer to this. If the committees are divided evenly and you have a judicial nomination, does the tie go to the nominee? That is part of the negotiation, but in 2001, that's what happened,

and it is presumed that is what will happen this time. That a tie on legislation, anything that would otherwise be reported out of committee with one more vote, will get reported to the floor in a tie. Got it. Got it. OK, well, this this is going to be a very interesting early legislative period in Joe Biden's presidential life because he's going to have his agenda and an impeachment trial proceeding simultaneously. So that's as well as a pile of nominations that are going to need to be heard. This is going to get exciting pretty fast. I have a suspicion we're going to have a lot to talk about. Oh, I think the lawsuits will start pretty quickly and we're not going to

talk about it. But the EPA clean power case that was up at the D.C. Circuit was ruled on this morning. Two to one, the two Obama appointed judges voted to basically not allow the Trump rule that I mean, mind you, Trump is leaving office. So this rule has been pending for a while now to not allow that to go into effect and also not allow them to rescind the Obama rule. What's incredible is that this lawsuit has been going on for, I don't know, five or six years at this point. And like what a great example of how the administrative state and the legal complexities around the administrative state have, I mean, ground things to a halt. complexities around the administrative state have, I mean, ground things to a halt because Congress isn't interested in stepping in to do legislation when both sides think they have a chance of winning these lawsuits and doing it kind of the quote unquote easy way or the politically expedient way at least. And so the lawsuit by no means is over. Not only, of course, do you have

an appeal to the Supreme Court potentially, but it's in an interesting posture because the Trump administration was not claiming policy preference or anything else. They were claiming that the statute was unambiguous. And that's why the Obama rule had to go and their rule had to go in its place, which is different than saying, well, we don't like the Obama rule and we think our rule is better because they're saying that statute was unambiguous, regardless of Biden coming in, who of course will want to leave in place the Obama rule or even beef it up. Maybe this litigation will continue. It was not mooted out by the end of the Trump administration. So that's all to say the lawsuits are continuing, David, and they shall be picking up a pace. Yes. Yes. Well, my goodness. You know, one of the things that we will be different and worse, or maybe in your mind different and better in the Biden administration from the Trump administration,

just from a policy standpoint, just from a pure policy standpoint, which I thought was a really good question. And what I said is it really remains to be seen on legislation. It is hard for me to imagine with a 50-50 Senate, with Joe Manchin on the Senate, that you're going to see a lot of really dramatic, controversial legislation in the culture war context. You might see some big legislation in economic relief from coronavirus, but it's hard for me to see big contentious legislation. But you will see a lot of regulation, which is all going to be challenged immediately in court. All of it, just like all of Trump's was. And so this is where we're going to be going,

diving back into some of our favorite topics from advisory opinions past. We're going to talk about the Administrative Procedures Act. We're going to talk about nationwide injunctions. We have spent so little time on Chevron. So little time. Et cetera. Which I'm personally embarrassed about

and would like to offer a heartfelt apology for insufficient attention to Chevron. But we'll have time now. Yeah. But rather than redress that deficiency, let's talk about something we've talked a lot about. And I don't think...

It's amazing. It seems like there is an endless appetite and an endless series of questions about social media and censorship on social media. In fact, I just had a really thoughtful conversation with a reporter yesterday for about 45 minutes about this. I want to trot out my thesis to this reporter and try it out on you, Sarah, and see what you think.

All right. So essentially, he was talking about antitrust and monopolies and the kinds of things that we've talked about in the context of Facebook, for example, we've talked about in the context of Google, you know, different entities, different issues. here's my theory that really if you look at these major corporations there are a number of different social media platforms a number with different ownership different moderation practices different formats i said but what you do have what the real objection it seems to me the more we walk through this is not to the market share of social media, of any given social media company. It is to the ideological monoculture that underlies the entire industry. That is the objection. The market share arguments seem to me to be pretext, Sarah. share arguments seem to me to be pretext, Sarah. There's a sense that the term big tech is used in a way that I think is, the reference to it when you hear it from conservatives is sort of speaking about an ideological borg that they see, an ideological monoculture.

When progressives look at big tech, they're thinking much more along traditional progressive complaints about big business in general and privacy concerns, et cetera, et cetera. But I think the real objection on the conservative side isn't to them. It's not purely to, it's not even principally to the market share. It's to the ideological monoculture of the technology industry. That's what I think the objection is. And that's why I think that because that is the objection, the legal remedies for that are going to be incredibly few and far between. So that's my general overall assessment of the objection. Your thoughts? assessment of the objection. Your thoughts? I think that might be too generous.

So, I think... Too generous to whom? Everyone. Okay. All right. Good. I think that there is a sense on both the right and the left of a desire to have enemies to fight against. And I think that because people spend so much time on social media and they see things on there that make them angry, that there's the immediate, that person said that thing and it makes me angry and then sitting above that is and uh this is what allows me to become angry and it's this climate of it and i think that's true on both the right and the left it's sort of a

a version of the victim narrative, but it's different. This is more like, I don't play video games, but you're in some dark room spinning around. You have high anxiety going in. The music, the ominous music is playing, and you're looking for someone to go after. And I think that big tech, quote unquote, is lurking there as a really easy thing to go after. The reason that I'm not sure I buy your narrative exactly is because while, yes, we certainly have seen some examples of people who work at those companies who donate to Democrats or who are liberal. There are also ones that are conservative. And I don't see a lot of,

you know, in the mainstream media aspect, I am using that term in sort of the way that it is used, the quote, mainstream media, there are polls and surveys of how many are Democrats and how many are Republicans, and that is trotted out just all the time. That's not really there yet, I don't think, in the tech world. Tech companies are popping up in other places. Austin comes to mind, Nashville comes to mind, Atlanta, places that are not just San Francisco, for that matter. The vast majority of the tech companies in the Bay Area are not just San Francisco, for that matter. The vast majority of the tech companies in the Bay Area are nowhere near San Francisco. They're obviously in the area, but they're way south. And Facebook, at least, seemed to have been making a really concerted effort to cultivate a place where conservatives could feel very at home on their platform.

And that hasn't stopped at all and stopped conservatives from going after Facebook at all. In anything, it has made them more likely to go after Facebook. And so why would conservatives go after Facebook more than, say, Twitter that is clearly, obviously more left-leaning? And the answer has to be the familiarity with it. And that's why I think that my thesis has more evidence going for it. Hmm. So I think the conservative, well, I'm so, we need to just, I'm going to stop using the word conservative unless I'm describing actual coherent conservative ideology. On the right, on the right, I think the real alarm bells that rang when facebook and then later twitter uh banned trump

and then amazon web services knocked parlor parlor off the platform that the concern was look these are this is a concerted action from like-minded internet companies that are hostile to us. Yeah, I think that's true. But I also think you have to add in the fact that it's also really important. This is now where people do a lot of their communication with their family, their political thoughts, the thoughts that they don't talk about at the water cooler at work anymore because the water cooler doesn't exist. You can get in trouble for about at the water cooler at work anymore because the water cooler doesn't exist.

You can get in trouble for talking at the water cooler. And people don't stay in jobs for 40 years. So there is no sort of shared water cooler experience anymore. And so the water cooler is these platforms. And so to feel, I think, on the right specifically, that you had academia, you know, to some extent, certainly in like the 19th century,

you lost academia. You had Hollywood. Remember, Hollywood was trying to at least, you know, Hollywood executives purge all the commies. And there was at least a real tussled battle over who would end up controlling Hollywood. That's gone. And now this platform

has come up and that's where the battle is now. Now on the flip side, I could point to talk radio. I could point to cable news, plenty of the areas in which conservatives have dominated as well, but it's, uh, that like psychological loss counts more than wins, like a loss, you know, minuses more points than a win gains you points. And so, um, you know, I, I understand why people feel like they are being shoved. They were invited into told, this is where we're all going to express ourselves from this point forward. And then 10 years later, they're kicked out of it. Right. And I think part of this, and before we dive into some of the legal doctrines here that I think will be helpful to people,

part of this is also we are dealing with a lot of misinformation. This might be a surprise to some folks, but some of the political debate around social media is dominated by misinformation. This might be a surprise to some folks, but some of the political debate around social media is dominated by misinformation. That what has happened in Twitter and what has happened on Facebook has been the wholesale elimination of conservative voices from the platforms. The best way to respond to that is to simply say, that has not occurred. to that is to simply say that has not occurred unless your definition of quote conservative is outright q anon or bots um and yes the president of the united states got knocked off the platform but we also have to remember that this was a person who had repeatedly violated the terms of service in a way that if you or i had done it, we would have been knocked off the platform. And so I think one of the issues here is you have a lot of misinformation stoked by people who

are trying to initiate a lot of populist rage against big tech, that it just doesn't match the facts. The sheer amount of hatred pouring out on Twitter, on Twitter, or the sheer amount of hatred pouring out on Twitter, on Twitter, or the sheer amount of hatred pouring out on Facebook, on Facebook by conservatives. And the top content on Facebook is still conservative. It's Dan Bongino, it's Fox News, it's Ben Shapiro. So a lot of what's happening is an argument taking place without a sort of a common shared set of facts. With a lot of conservatives believing shared set of facts with a lot of

conservatives believing it is now difficult for conservatives to speak on social media, which is not true, which is not true. Now there are some instances of double standards that is true and that's a problem, but it is not true that conservatives have trouble getting their message out on social media. It's flat out not true. And, and you know, that much I think is often lost in the debate. But do you want to dive into some? Well, go ahead. I do want to talk about the legal

sides, but just on that point, there's been plenty of evidence of throttling. There's been plenty of evidence of accounts that get taken down accidentally. And every time that there's an accident, it happens to someone on the right, not the left. There was a big, there was a far left podcast that got yanked off Twitter. The exception that proves the rule, perhaps. Remember when they took down the RNC chair? Right. So here's the Facebook top 10 from six hours ago. Number one, Franklin Graham.

Number two, Dan Bongino. Number three, The Dodo. Now, that's some content I'd be interested in. Number four, Franklin Graham. Number five, Dan Bongino. Number six, Dan Bongino. Number seven, Newsmax. Number eight, Dan Bongino.

Number nine, Donald Trump for president. Number 10, Dan Bongino. Number six, Dan Bongino. Number seven, Newsmax. Number eight, Dan Bongino. Number nine, Donald Trump for president. Number 10, Dan Bongino. I don't know why Ben Shapiro has been shut out of this, but there he is two days ago, Ben Shapiro. Dinesh D'Souza, Dinesh D'Souza. I mean, so yes, there are anecdotes that illustrate that, yeah, there have been double standards applied. But in total, conservatives do not have trouble getting their message out on social media.

Flat out. I mean, just flat out. They don't. Well, let's talk about some of the legal questions, because there was a really interesting Wall Street Journal editorial. Let's talk about some of the legal questions, because there was a really interesting Wall Street Journal editorial and some actually reporting by the Wall Street Journal about other sort of ideas that Congress could use or the courts could use to regulate tech industries with these sort of metaphors and analogies to other industries. So Common Carrier was one of them. This is what, for instance, prevents Greyhound buses from discriminating on the basis of race, for instance, or Delta. Now, we have not treated tech companies like utilities. We haven't treated them like broadcasting. We haven't treated them like AT&T. We haven't treated them like Delta. We haven't treated them like Greyhound buses.

And so there's all these folks trying to say like, well, why don't we apply this law to tech? None of them are perfect. Some of them are less perfect than others, of course. But I wonder, David, as I've been reading all these, some of which are really creative. I thought the common carrier thing had some good points to it. Ugh. But that's... I mean, ugh.

Someone else in my house... Ugh, with a capital ugh. Okay. Someone else in my house might have thought that as well. Yeah. But... Someone else in your house thought that as well. Yeah, it was the brisket.

I'm glad he's already formulating an opinion about common carrier application to social media. He's not there on our yet, but Chevron, strong opinion, common carrier, definitely. wonders whether the fact that we're searching so much for the appropriate analogy does mean that it needs to have its own. We need to create something different for tech companies because they're not the same as anything that has come before notes. And those of you, if you really, really want to be just glory in the nerdery of this, and it's very well done, actually. There is a Congressional Research Service paper, or a CRS report, dated March 27, uh, or a CRS report dated March 27, 2019, that walks through all of these various doctrines that people are, uh, publishing op-eds about. And it's a very fascinating and, and scholarly and rigorous look at sort of the history around all of this.

And I would encourage, and we'll put it in the show notes. I think you'll really appreciate reading it because what it does is it just, it kind of walks through what's going on. So one of the, there are two issues that are in play here. And usually one of them is talked about a lot and one of them is talked about a little. Okay, the one that's talked about a lot is section 230. We've talked about section 230 until we're blue in the face.

The one that's talked about less is the first amendment. Okay. And so what this research service report does is it sort of walks you through how Congress's hands are not entirely free. This is not a situation where because Congress drafted Section 230, Congress can do what it wants. And the interesting thing about Section 230, Section 230 was something that said, look, the law, Congress stepped in before the law had a chance to fully develop in this area, before First Amendment really had a

chance to fully develop because Congress, and this is kind of weird to think about this, Sarah, Congress was proactive. Do you remember when that could actually happen? No. Like, I don't either. But as I've said many times before, it happened when there were two competing court decisions that seemed to put a social media company in a bond that said, number one, you have to let everything on there or you're going to be liable for defamation. Number two, if you moderate anything, you will be liable for defamation. So it was everything or nothing, which was an untenable position and one that was inconsistent with First Amendment doctrine offline. So offline, for example, if I'm running a meeting, let's say I'm a town council, and I say, everyone who comes in has to speak for five minutes.

We want you to speak on the topic, and we want you to not engage in personal insults against someone in the audience. That does not convert all of the audience speech into my speech. The idea that it would would be laughable, just laughable. But that was essentially what some courts were trying to do to internet companies, that if I let somebody on my platform but gave them rules of the road, that that was then my speech. And so what Section 230 did quite explicitly was to say, nope, you can moderate and it doesn't become your speech. This is, in many ways, what Section 230 did is brought online speech into the offline world and harmonized online speech with the way we treat speech in the offline world. In a lot of ways, Section 230, although I'm not going to say specifically and perfectly did what the first

amendment was going to require anyway this it it cut off about 10 years of legal development with one statute but more or less under existing first amendment doctrines this is what it was going to be anyway um and in fact there's a line of Supreme Court case law that indicates the different way in which the court views different kinds of communication platforms. And I can walk through all of them, but I've done enough. I've filibustered enough. But one of the core things I want people to know is that Section 230 did not spawn out of nothing. Section 230 was a harmonization of offline rules and online rules to be very, very similar. That doesn't mean that every jot and tittle of Section 230

is mandated by the First Amendment. What I'm saying is the substance of the approach is almost certainly going to be what First Amendment doctrine would require. So that's what I'm going to stop with and then before I walk through some key cases. No, I'm for it. Let's hit the cases. Okay. Let's do three, Sarah. All right. Three that show the different ways in which different platforms are treated. So if you're going to be the government and you're going to

regulate a communication system, that communication system, whether you're regulating Facebook or you're regulating NBC or you're regulating CNN, is going to, if they choose to mount a First Amendment defense, then there's going to have to be a test applied. There's going to have to be a test applied to the First Amendment defense. So I'm going to go through three cases super fast. Number one, Red Lion Broadcasting versus FCC. Okay, this is a 1969 case about the Fairness Doctrine. The next one is called Turner Broadcasting System versus the FCC.

And then the last one is called Reno versus ACLU. And it's about internet regulation. So we have broadcast regulation, we have cable regulation, and we have internet regulation. Okay. Broadcast regulation, red line was about, does the FCC, do the federal commissions, the FCC's fairness doctrine, which requires radio and television broadcasters to present a balanced and fair discussion of public issue on the airwaves, does that violate the Constitution? Conclusion, so the exact question presented was, do the FCC's fairness doctrine regulations concerning personal attacks made in the context of public issue debates and political editorializing violate the First Amendment's freedom of speech guarantees? Unanimously, the court said, no, it does not violate the freedom of speech. Why? Because of something called spectrum scarcity.

Now, remember, this is something that seems weird to us now, but back in the day, there was limited airwave bandwidth. There was not a possibility of infinity radio stations or infinity TV stations. If you're going to broadcast on the airwaves, you're going to broadcast on airwaves that were scarce and that were owned by the government. So you're broadcasting on government airwaves. In that circumstance, the court said, fairness doctrine is okay. You have scarcity. This is a government asset. This kind of regulation passes muster. All right, next, cable TV. Now, what's different about cable TV? Cable TV is not limited by the same scarcity, okay? And so in 1992, cable passed a rule, I mean, Congress passed a law that said

that cable providers must allocate a percentage of their channels to local public broadcast stations. They were called must carry rules. Sarah, I believe this is like where Wayne's World would have been on. You know, it's like your public access TV. Ah, yes, that, okay. Yes. Not Wayne's world the movie but meta wayne's world right exactly exactly got it so are the must carry rules content based and thus a violation of the cable company's first amendment right to free speech in other words if you're telling me to carry a certain kind of programming does that violate me my cable company's right to free speech?

And the court said, in a 5-4 decision with Rehnquist, Blackmun, Stevens, Kennedy, and Souter in the majority, and O'Connor, Scalia, Thomas, and Ginsburg in the minority, man, that's a wild setup, isn't it? No, because it did not violate the Constitution, because the must-carry rules were content-neutral and thus not a violation of the First Amendment. And so what the court did in that circumstance is it said that there was a higher level of scrutiny applied to the regulation of cable than for broadcast. So cable had more protection, had more First Amendment protection, but not as much for broadcast. So cable had more protection, had more First Amendment protection, but not as much as broadcast. Then along comes the Communications Decency Act in 1996.

These were laws passed by Congress designed to protect minors from unsuitable internet material. In other words, to try to make the internet family-friendly. And the question was, did certain provisions of the Communications Decency Act, which, by the way, Section 230quist Thomas yes it violated the First Amendment that the regulation of these internet companies in a way that implicated their First Amendment rights was going to be subject to and was going to be subject to much more exacting scrutiny than the CNN case, for example. And it was analyzed under traditional First Amendment doctrine and struck down. Content such as that was indecent, obscene, etc. The limitations of the Communications Decency Act on internet communications was struck down.

And so essentially what you have at the end of this is broadcast is going to have the most ability for Congress to regulate. Cable is going to be in sort of a median level. And then this sort of content-based restrictions of speech and regulation of speech on the internet is going to be most disfavored. So that's the basic reality. And so one of the things that I say, and then I'll stop this whole speech, is that if you're going to dive in and use the power of government to do content-based speech regulation of social media, you're going to be in the ACLU via Reno category and not in the broadcast category or the cable category, and you're going to have real constitutional problems. End of speech. Oh, eco-friendly towels? And they're quick-dry. Yeah, you know, HomeSense always has a lot of great towels. Let me see that.

Quick-dry? Will it dry quickly enough that I won't notice when you use my towel? Okay, that happened once. Maybe more than once. Anyways, these are only $13. $13? Okay. Let's get you this navy one, and for me, this soft beige one. Deal so good, everyone approves only at home sense. David. Yes. I have a controversial suggestion. Oh, you're going to tell me it should be regulated like cable, aren't you? No, no. My controversial suggestion is that I thought that that was a really good, you know, law school primer on the modes of broadcast, cable, et cetera, speech. And I kind of want to talk about your newsletter. Oh.

So in other words, I think what you just said is that was so boring that I really would like to flee to another topic. Yeah. No, no, but I think like we can continue to have this conversation. I do think you have to get into some of the common carrier stuff, some maybe even some heart of Atlanta Motel because tech companies aren't the same as broadcast or cable. This isn't just the next generation. There is something also just different about them.

But I thought that was, uh, I cannot improve upon the cable broadcast, et cetera, conversation. And I've been thinking a lot about your newsletter. Oh, okay.

Well, fantastic. Um, do you want to start by saying what you're thinking about it or do you want me to set it up, and then you tell me what you're thinking about it? Well, in short, my big takeaway was your newsletter's thesis, to do it in really short, was that we have two different types of culture, potential cultures, and that the shame culture, the shame honor culture, is external. And so your value is projected from others. And I'm reading a book now on sort of Shakespeare's role through various decades in American history and how various generations approached some of Shakespeare's works.

And I'm in sort of the 1845s right now, like 1845 to like, let's call it 1860 or so. And something that I'm reading the two things at the same time, right? Like I'm reading the book at the same time that I'm reading your newsletter. And that chapter is really on masculinity and on what America was sort of going through in terms of how it viewed manliness, manhood. And that was a very cultural moment in the United States. It was the post Jacksonian era, pre-civil war. And what, uh, the author is pointing out, which is so interesting and it's taken me like I'm chewing on it still is that for quite a while in the early 19th century through 1845, et cetera, Romeo was often not played by a man.

Hmm. Romeo was often played by a woman because Romeo was seen as too effeminate for a man to really be able to play well. And so there was this very famous actress who, as it turns out, we now know in history was a lesbian, but she was the most famous Romeo probably of the entire 19th century. Interesting. And she didn't, she wasn't a woman pretending to be a man, although obviously she was, she was a woman wearing man's clothing on stage and saying a man's lines and all of that.

But it was that she was able to do the whole range of who Romeo is. He is sort of tough guy fighting, but also the love and, you you know crying in the friar's uh you know office type thing that men couldn't really pull off at that point and that reading your newsletter with that sort of ringing in my head made it all the more interesting because it seems very likely that we may look back on now, you know, in a hundred years, whatever, 50 years and see something else that like, I don't recognize. I don't really know what it means not to have, not to be able for a man to play Romeo. Like what? That doesn't make any sense to me sitting here in 2021. Um, but the shame culture that you were talking about,

of course, particularly in the South, goes back to that antebellum era as well. And so how interesting that if you read your newsletter about that shame culture, in some ways originating at a time where a man couldn't play Romeo. That is fascinating.

That is really fascinating. By the way, fun note real quick. where a man couldn't play Romeo. That is fascinating. That is really fascinating. By the way, fun note real quick. There was one man who was practicing for a female role in a Shakespeare production. It was down in Corpus Christi, according to this book, as they were preparing for the Mexican-American War. They sent a lot of troops down there and the troops were getting a little rowdy, a little restless. And so they decided to

put on some shows, but of course they didn't really have any women. And so the women's roles were going to have to be played by men, but they needed more effeminate men to play the female roles. They were going to put on Othello, which let's not even get into Othello in 1845. We're on the brink of civil war and like, yeah, for sure. Let's do Othello to calm the troops down. And you'll never guess who practiced for the part of Desdemona. Who? Ulysses S. Grant. Are you serious? He was considered quite effeminate looking in his 20s. He was fairly short. He had very feminine features. And it is part of the reason, at least in a letter that he wrote back to his fiance, why he grew a beard. Interesting. Yeah. Anyway, so yeah. Okay. That was like way too long of like why I have been chewing on your newsletter. Tell me why, what prompted you to write it?

Yeah. So what prompted me to write it is, um, so I, I grew up in the South. I'm a son of the South was born in Opelika, Alabama. I lived in Baton Rouge. My first ever football game was LSU in death Valley. Uh, grew up in rural Kentucky, went to college in Tennessee. After some stints in the Northeast, came back and have settled and my kids grew up mainly in rural Tennessee. And so one of the things that you know about the South is if you know and understand the literature of the South and the history of the South is the South is known within America for its shame, honor culture. Um, what is a shame honor culture? It's, it's different from, and I, and I put this in the, um, I put this in the newsletter. It's different from what you would call a conscience guilt culture, which is a, um, sort of the more predominant American culture outside of the South. And David Brooks had this like really succinct description. He said, in a guilt culture, you are good or bad by what your conscience feels.

In a shame culture, you are good or bad by what your community says about you, whether it honors you or excludes you. In a guilt culture, people sometimes feel like they do bad things. In a shame culture, social exclusion makes people feel they are bad. And also this applies to group. It's sort of like identity politics. People are extremely anxious that their group might be condemned or denigrated. They demand instant respect and recognition for their group. They feel a moral wrong when their group has been disrespected and can often react with a violent and furious anger. Now, this is something you see a lot on the right these days.

There's an obsession in right-wing media with how the quote-unquote ruling class has disrespected you, has shown contempt. There's whole industries that exist in creating a sense that people are looking down on you. And this is connecting with something very ancient. And as the GOP is disproportionately Southern, and especially evangelicals are disproportionately Southern, this is sort of a cultural heritage that a lot of us have. And I really like the way this Kent State professor named Gary Cuba said, honor meant that Southerners beheld themselves

as others beheld them, and that their self-worth lived in the look of the other. It's really fascinating. And so what honor culture is, and shame honor culture, is directly contradictory to commands like turn the other cheek or bless those who persecute you. The shame honor imperative, as it manifested itself in the South South is to push back really hard when you've been disrespected, to punch back really hard when somebody has come against you or come against your tribe. And I talked about that in the context of these really vicious counterattacks that we saw last week on the part of Franklin Graham against Republicans who voted to impeach Trump, comparing them to people who betrayed Jesus, and the really hard pushback of a Christian financial guru, Dave Ramsey, to a religion news report about his workplace, where he actually invited

people to personally harass the reporter who did it. And what I was making the argument that is that you can make sense of these responses in a shame honor culture. You don't make as much sense of them in a Christian culture. And it triggered a lot of email from people from the South saying, oh, yeah, that's how I grew up. And some dissent saying, no, I don't recognize it. But an awful lot of people said, oh, yeah.

That sense of prickliness in the face of disrespect, that sense of vindicating personal honor, all of those things are very much a part of my upbringing. And so I just thought it was, of all of the things I've written, it got more of a personal reaction, I think, than virtually anything else. Well, I highly recommend folks go read it and provide their personal reactions to you. Yeah, to me personally. You know, the funny thing is, Sarah, and so I think

this was more a disproportionately male response too. So again, I grew up in the South. more a disproportionately male response too. Um, so again, I grew up in the South. I remember going up to law school and being shocked at sort of the background rudeness of people's interactions. Um, and, and there were no repercussions like rudeness would not be addressed. It just was. Whereas if, when I grew up, if somebody was rude, you had to be prepared to fight. If you were going to be rude to another person, you had to be prepared that there was going to be a potential physical encounter if you were rude. And so there wasn't much rudeness. It was carefully chosen.

And this extended to if you're rude to somebody's friends, certainly if you're rude to their girlfriend. And so one of the things that shocked me about the Northeast was the casual rudeness that I experienced because there wasn't such a thing as that. That would cause people to get into a physical confrontation. confrontation. And that was my first sort of visceral encounter with how I had grown up in shame honor culture. And there's this famous study I refer to in the piece where Michigan undergrad males were kind of pushed or shoved in the hall. And if they were from the North, there was no real change in their sort of body chemistry, their brain chemistry. If they were from the South, body chemistry, their brain chemistry. If they're from the South, it triggered a surge of the fight-or-flight chemicals. And I thought that was absolutely fascinating. 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.

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Speaking of chemicals in the brain, David. Yes. I think you know what time it is. This is the time I've been waiting for with bated breath. So set up the whole experiment. All right. So there's this place about an hour and a half outside of DC, Warrington, Virginia. It's not ex-urban.

It's not rural. It's something in between, right? It is the boundary of rural Virginia versus ex-urban Virginia. How about that? And outside of Warrington, you don't have cell phone service. Inside of Warrington, you do. Anyway, driving through Warrington, we noticed, my husband and I, that this was our first 48 hours away from our son since he's been born.

So we were punch drunk with both our amount of sleep we were able to get and this mental freedom that we had. And as we're driving, we noticed this fast food heaven that we were driving through. And so we came up with a plan, David. And our plan was to find the best chicken sandwich with certain rules. So first of all, the chicken sandwiches would be randomly obtained. And so we decided you would drive up one side of this half mile, get all the sandwiches in order, then turn around, U-turn, and get all the sandwiches in order on the other side.

Upon getting a sandwich, we would immediately pull into the nearest parking spot, each take one bite of the sandwich and a french fry, record our thoughts immediately, then place them back in their bag, go to the next one, repeat until the very end where we pulled into our final parking spot. All the sandwiches were taken back out again for cross-referencing and further updating of our memory. Can I just say I very much appreciate the scientific rigor of this. For sure. Because you're getting it right hot out of...

That's right. Yeah, or right from under the heat lamp. Yes. Now, there are two important notes. McDonald's has announced that they are doing their own version of the chicken sandwich war sandwich on February 24th. So we've got another month until that one.

Also, Kentucky Fried Chicken has announced that they too are releasing a new chicken sandwich. It has been released in about nine markets. The DC market is not one of them, but they allowed me to provide my email address so that I could be updated when my KFC started to carry this chicken sandwich. That being said, McDonald's and KFC, we tried their current chicken sandwich offerings. So,

David, how many of these chicken sandwiches do you think you've tried? Okay, so say again which ones you've had, and I'll say yes or no. Wendy's. Which ones you just tested. Yes. McDonald's. Yes. Chick-fil-'s. Which ones you just tested. Yes. McDonald's. Yes. Chick-fil-A. Yes.

Popeye's. Yes. Burger King. No. KFC. No. Okay. Well, these are in order.

So we went to Wendy's first, got the Wendy's Classic Chicken. That is their Chicken War sandwich. Wendy's first got the Wendy's classic chicken. That is their chicken war sandwich. Now I took notes on each sandwich for chicken bun, pickles, sauce, fries, price, overall impression. And then I added some notes. Okay. Okay. I'm not going to necessarily read all of those, but the Wendy's chicken had a great crunch by itself. Tasted like one of those old school chicken fingers. I thought the bun held up well. The pickles didn't have a whole lot of flavor to them. Light mayo, which I appreciated. And the fries, David, were way better than you remember Wendy's fries being. They taste like fresh potato, more like Five Guys French fries.

And so I just hadn't really considered Wendy's fries in a long time. They do, however, because they are not manufactured to hit some specific chemical gong in your head. Once they get cold, they get soggy faster and they lose their flavor faster. Uh, the price was 699 for my meal. So I got a meal at each one, which was the smallest drink fries and the chicken sandwich 699. Um, also they had Coke zero, which I appreciated. So Wendy's wendy's uh very good we'll get back to its ranking in a second mcdonald's buttermilk chicken yes not as crunchy as wendy's but there was more fry to it uh the bun of course had a good toast there are no pickles there is shredded lettuce and some tomatoes that are not red uh The sauce was kind of uneven. There were

areas that were like, you know, mayo was pouring out, areas not. Overall price, $7.99. I will note, however, McDonald's french fries, I mean, they're crazy. There is something going on with the McDonald's french fries that are just always incredible. Chick-fil-A. Now, the chicken at Chick-fil-A, totally unique totally unique by itself that chicken is just like you know i could blindfold you i could spin you around 20 times give you a bite of chick-fil-a and you'd be like that's chick-fil-a yeah which is just wonderful it is definitely the like freshest of the chickens uh the bun though maybe too squishy it has a good butter flavor, but like not any toast. So like the bun just kind of squishes there. The pickles were the worst part

of the Chick-fil-A experience. They were flimsy. There was, I mean, to say there was no crunch, like doesn't even begin. Like the outside of the pickle came off from the inside of the pickle, which I don't even understand how that happens.

Inexcusable. Inexcusable. Inexcusable. Inexcusable pickleage. Yes. Now, of course, there's no sauce. I don't think that the Chick-fil-A waffle fries really are in the same category as McDonald's or Wendy's. I know some people like them.

And I will say that with Chick-fil-A sauce, the fries are flipping incredible, but that's really because at that point, they are a vehicle for me to eat what amounts to like mayo with some barbecue sauce in it, I think. We ordered the Chick-fil-A sauce

in bulk at our house. Yeah, yeah. And for $6.75, it is a deal. They also have Diet Dr. Pepper there because they are a true Southern restaurant. True.

Popeye's. The chicken. David. It's, I mean, I just wrote, wow, so crunchy, really crunchy. But, well, let me get to the other things. Bun, buttery, amazing. The pickles, David. The pickles. They are thick, crunchy, tangy pickles. Moderate mayo. Now, Popeyes does do French fries. They're like Cajun fries. They taste like grocery store frozen French fries. They are not worth getting. They do have other sides. So go get some other side or don't get a side. It is $8.39, so it is expensive compared to some of my other options here. I would say that the chicken by itself

in the Popeye's sandwich was actually not particularly impressive. But for however they've done it, Popeye's has put together a symphony where, yeah, the violin section by itself, meh. But the violins, the violas, the cellos, and the bass all together, it's beautiful.

It's adagio for strings. All right, Burger King. The chicken was thin. It was like a frozen chicken patty. The chicken was thin. It was like a frozen chicken patty. The bun was fluffier, which was interesting. No pickles, heavy mayo. The fries came very hot, which was nice, but it didn't really,

it wasn't like the potato of Wendy's and it wasn't the crack cocaine, you know, dopamine rush of McDonald's. $8.59, so on the more expensive side. Better flavor than you think, but finally, KFC ended up being disqualified. Mm. We each took a bite of the KFC sandwich

that we were provided, and I spit it back into the back. Now, it was kind of a... Really? It was a weird color. Okay. And we both decided

that there was a chance that something was actually wrong with the KFC fryer because the French fries were also inedible and that this was, something was actually just wrong and this was not the KFC was the worst chicken sandwich, but rather that maybe we would need to go back to KFC

and try again to really determine that it was inedible. So we just disqualified KFC. We thought that was the fairest thing to do at that point. inedible. So we just disqualified KFC. We thought that was the fairest thing to do at that point. Yeah. Yeah. Because I'm a big, I'm a big KFC fan. Right. KFC is delicious. The spork with the potatoes, many a childhood memory of KFC. So I just had a hard time saying like, well, this is clearly representative of Kentucky fried chicken. The fact that I couldn't chew it and swallow it. Yeah. Yeah, that is not, yeah.

You could have seen Scott's face when I spit it back into his mouth. It's like, oh God. Okay, so that's my short explanation. Here's where I came down. Now, I'm going to kind of pull a David French here. I don't know what that means, but I'm eager to find out. Oh, I bet I know what it is. I think you probably do. You like them all.

No, no. So immediately, McDonald's and Burger King are in a different category. They are down, down below. So if you want a good chicken sandwich, you're not going to McDonald's or Burger King right now. That leaves Wendy's, Popeye's, and Chick-fil-A. Now, there are different reasons that you go for a chicken sandwich. I think if you want just like you're just craving great chicken, that's Chick-fil-A. You're going for a good chicken experience. You want that Chick-fil-A chicken flavor, the freshest chicken, such a good flavor outside the fry, so much so that they don't even need a sauce on their flipping sandwich. It's impressive. However, if you actually want a great chicken sandwich, as in it's not just about the chicken, it's about the whole symphony together,

I got to give it to Popeye's. Yes. Now the problem with Popeye's, for me at least, is that I'm rarely like, you know what, I only want a chicken sandwich all by itself. That will satisfy me. I go to fast food for a whole meal, generally speaking. And because of that, the fries are important. The beverage that I can get is important. And so even though Wendy's didn't win on chicken and it didn't even win on chicken sandwich, it was close enough in those two categories that when I added in the price, which was $6.99, the fact that their fries were delicious and that they had Coke Zero and a Frosty served the sandwich in foil so that it would stay nice and warm as I

pulled over into my parking spot. For the overall meal experience, I had to give it to Wendy's. Wow. That's interesting. That is interesting. And I'm not going to hate on that. I'm not going to hate on that because I think of Wendy's is consistently the most underrated of sort of the pure fast food restaurants. And of course, if you're in a group where someone else doesn't want a chicken sandwich, I also think Wendy's performs very well there. They have a lot of different offerings. Their salads are pretty good. Their burgers actually pretty good. And so like if you had a family in your car, then Wendy's also makes a lot of sense. But again, if you're just like,

no, what I want is just the perfect Adagio for strings chicken sandwich. I thought Popeye's had it. I, of course, go to Chick-fil-A and just get, this is embarrassing. I get like the 30 piece chicken nugget, David. So I think the Wendy's nugget is superior to the Chick-fil-A nugget.

You are the second person who said that. And it's so funny because we didn't talk about this in advance, but because someone said that to me right before I did this, we did do a little side thing. We got a four-piece chicken nugget from Wendy's and we got a four-piece chicken nugget

from Chick-fil-A. Oh, this is fantastic. Okay. I thought the Wendy's nuggets were pointless and stupid and that the Chick-fil-A nuggets were incredible and that all of you were just wrong. For the first time in advisory opinions history, I'm actually speechless. I'm more speechless than I was when you hadn't even seen one second of Rambo. The Wendy's nugget is exquisite. It's exquisite. Now, yes, it's exquisite. Now, my problem here, Sarah, is that I have begun to shun the chicken sandwich when seeking a chicken

eating experience. Because when I went to Popeye's most recently, which unfortunately is there's not one super close to me. I just had this thing went off in the back of my head that said, just get the bucket of chicken instead of the sandwich. And as I ate it, I thought now I remember why I love Popeye's so darn much. Yeah. Like the Popeye's drumstick.

Are you kidding me? It is so good. It is so good. So I have, just like in the last 12 months, 18 months, I've done the thing, that good old fashioned Southern thing.

That's like the good side of the South versus like sort of the bad shame honor side of the South. You get the bucket of chicken. You just get the bucket of chicken with the mashed potatoes and the beans. chicken. You just get the bucket of chicken with the mashed potatoes and the beans and the biscuits. And the other thing about the bucket of chicken, I don't know if you've, do you ever eat cold chicken like right out of the fridge? Of course.

Yeah. You could do that for like two days. Are you kidding me? It's amazing. So I completely endorse your view of the totality of the experiences, the Popeye's sandwich, but the Popeye's sandwich is not as good as the Popeye's bucket of chicken. Fascinating. The only problem with the bucket of chicken and God knows when you're eating fried chicken, you, um, you know, you want to eat by the bucket. That's right. Um, it's not like I'm jogging while I'm eating my fried chicken, but like, it's too much work. Like there's something about the chicken sandwich. I don't have to think about it. I just like put chicken into my mouth, which might be why I like the, the Chick-fil-A 30 pack nugget so much is you just sit there and mindlessly put delicious food into your mouth. There's none of this like, have I gotten all the meat off that one?

Is there a little left? Like, no. Yeah. The bucket of chicken is a messy, labor-intensive eating experience. It is. Yeah. And when I'm consuming fried foods, I want to expend as few calories as possible. Yeah.

No, I get that. I get that. But I'm very pleased with my new bucket existence. But you know what? As you're talking about these incredibly escalating chicken wars, it just reaffirms that I'm so glad that I am not a chicken because my days would be so numbered right about now. Well, listeners, I will update you on February 24th on the McDonald's sandwich, and I will update you as soon as the KFC chicken sandwich rolls into town.

And if you are in one of the cities that has the new KFC sandwich, let me know. You would be in Chicago, Kansas City, St. Louis, San Francisco, Seattle, Portland, Louisville, Sacramento, or Tulsa. The other 4,000 nationwide KFCs like me will just have to wait until the end of February, they said.

That is a crime that Nashville is not in that list. Close. I mean, I get Louisville. That where kfc's headquarters is but yeah i'll wait i'll wait but i guarantee you i'm gonna pull up i'm gonna look at the menu and it's gonna have a chicken sandwich and then right next to it it's going to have a bucket and i'm gonna say nah i'll postpone the sandwich i'm getting a bucket because i'm gonna get mashed potatoes and i'm getting a bucket because I'm going to get mashed potatoes and I'm going to get beans and I'm going to get biscuits and it's going to be glorious. All right, David. Well, our next episode, we'll have a new president. That's true. That is true. And I keep wanting and waiting for things to calm down, but as we're going to roll straight into nominations, major legislation, and an impeachment trial, I think we're going to be waiting a while providing analysis of impeachment trials, sandwiches, Southern culture, and finally, at some point, maybe, perhaps, Sarah's review of Rambo First Blood Part 1.

It has to happen. Until Thursday, thank you so much for listening and also please go rate us at iTunes please I'm not iTunes Apple Podcast please go rate us at Apple Podcast please subscribe we appreciate it very much and as always if you have feedback or questions David at

thedispatch.com and Sarah at the dispatch.com thank you for listening. Damien. Hey, how did your doctor's appointment go, by the way? Did you ask about Rebelsis? Actually, I'm seeing my doctor later today. Did you say Rebelsis? My dad's been talking about Rebelsis. Rebelsis? Really? Yeah. He says it's a pill that... Well, I'll definitely be asking my doctor if Rebelsis is right for me. Rebelsis. Ask your doctor or visit Rebelsis.ca. Order up for Rebelsis.