Advisory Opinions - Compelled Speech and Religious Liberty

Episode Date: July 30, 2021

Could it be time for the Supreme Court to revisit Masterpiece Cakeshop? In today’s episode, David and Sarah discuss a ruling from the 10th Circuit requiring a web developer to create a site for a same sex wedding and what that means for the ongoing debate about compelled speech and religious liberty. They then chat about some new developments involving the lawsuit against Alabama Rep. Mo Brooks for his involvement in the January 6 riot and yet another story involving Amy Chua at Yale Law School. Show Notes: -10th Circuit Ruling on Compelled Speech -DOJ refuses to defend Rep. Mo Brooks Learn more about your ad choices. Visit megaphone.fm/adchoices

Welcome to the Advisory Opinions Podcast. This is David French with Sarah Isker, and we've got legal developments for you today, including, I don't know, what was the word that you used to describe this case out of the 10th Circuit, Sarah? Was it bonkers? Oh, it was bonkers.

It was bonkers? Oh, it was bonkers. It was bonkers. Okay. Pretty wild case involving a web developer and a same-sex marriage developing a website for a gay marriage celebration and how the court, the Tenth Circuit Court of Appeal, said, yep, the web developer's going to have to do it. They're going to have to do it, which is creating a circuit split.

And we talked before about the Arlene Flowers case, Masterpiece Cake Shop case, how there had not been what you might call a perfect vehicle for determining the underlying free speech question here. When can the state compel your unquestionably creative expression to celebrate an event that you disagree with? And this is the case that might do it. So we're going to talk about that. We're also going to talk about some interesting developments related to January 6th. And if we've got time, we may not.

If we've got time, maybe a bit of a postscript about the Amy Chua discussion that we've had previously. There was some really interesting reporting from Elizabeth Brunig and The Atlantic that has sort of fleshed out that story. But let's start with the Tenth Circuit. Sarah, do you want to launch us? Yeah, so you have a panel of the Tenth Circuit, two Clinton appointee judges,

and then Chief Judge Tim Kovich, who is a W appointee, taking on this case of a wedding website developer who declined to make a website for a gay wedding. If this sounds like Masterpiece Cake Shop, it's because it is. It's still Colorado. It's still that same statute in Colorado. It's everything of Masterpiece Cake Shop. in Colorado, that same, like it's everything of Masterpiece Cake Shop. And yet the case comes out the opposite way where the two judges find that in fact, the website developer must, to not violate the law, must design a website for same-sex weddings. Judge Timkovich in dissent, the whole thing is 103 pages. It's super duper long.

But here's the punchline. The majority says that it is compelled speech, but that it meets strict scrutiny, that the government has such a compelling interest to limit discrimination, that in fact it can compel this speech. In dissent, Timkovich is just head-scratchingly saying no. Some things that are interesting about this big picture. So the reason that this is such a good vehicle is because it is unquestionably artistic, right? The website, there's like all these things they include of like how artistic the website development is so much so that the majority actually says that this person should be considered a monopoly because it is so artistic. In fact, that she is the only one who can create

it. Therefore she's a monopoly of one that's like separately insane that like the way you can get around uh the compelled speech problem is by declaring every artist a monopoly because no one else does it the way they do that's amazing compelled speech on its head and then spins it on its head and then kicks it in the stomach um that's crazy. But you have the creative side losing. That's how you want to go up to the Supreme Court. Now, the question is, does a judge on the 10th Circuit move to hear this en banc so that they can correct it internally within their own circuit, in which case, if they do, the Supreme Court probably will not take it. Or do all the judges on the 10th Circuit basically write a concurring in denial of rehearing on bonk saying, we hope the Supreme Court takes this and corrects it. We do not feel that we should do so on bonk.

I think everyone at this point is rooting for that outcome because right now this is teed up so perfectly for Supreme Court review. If they take it on Bonk, they kind of ruin it. So dear 10th Circuit. Shh. Yeah, because there's a circuit split here.

So there is a case out of the 8th Circuit called Telescope Media Group versus Lucero involving wedding videographers there's a circuit split here so there there is a case out of the eighth circuit called telescope media group versus lucero involving wedding videographers and it comes out the other way so this this creates a circuit split and what's interesting and you highlighted all the key stuff i think sarah but what's interesting is the majority opinion says this, appellants' creation of wedding websites is pure speech. Is pure speech. Like, that's, so this is, and again, y'all, this is not asking you and not saying to you listeners, any listeners we have in the wedding industry, what you should or should not do with your own conscience regarding weddings. Okay. This is what the government can compel you to do.

That's the issue here. And I found the monopoly argument simply astonishing because there's no, by no definition of actual monopolies, no legal definition of a monopoly, does a monopoly exist? There are a lot of people, a lot of people who are willing to make custom-made weddings, websites for gay marriages. There's just a ton, a ton. So there's no monopoly.

She does not control. She's not the Google, to the extent that you would call Google a monopoly. She's not the Google of wedding websites that you would call Google a monopoly. She's not the Google of wedding websites. So this is just a person. But what they're saying is because her artistic abilities are not replicated by any other artist, which is, by the way, like every artist, their art is not replicated by other artists, that she's this monopoly of one. And that's the thing that was mind-blowing.

And so the very existence of this monopoly of one is what permitted or was the justification for this ruling. And I think, Sarah, interestingly enough, the twisting and turning, sort of the mental gymnastics that are obvious from this opinion, to me, illustrate the weakness of the opinion itself and the weakness of the argument itself that the state that can meet strict scrutiny and compel an artist to create art that they find that the artist himself or herself finds offensive. So here's what I'm confused about, David. Why haven't we seen cases, set up cases, you know, these contrived cases where everyone's sort of in on the game? Why haven't we seen versions of that coming from the right, especially in Colorado,

where someone goes to a cake baker and says they want a cake that says homosexuality is a sin or whatever version of that, or I heart KKK. I don't know, like offensive things to put on a cake and ask someone to make that cake and have them say no from the other direction. That has happened in Colorado. Okay. Yeah. in the Masterpiece Cake Shop litigation, one of the reasons for the Masterpiece Cake Shop ruling was contrary holdings and contrary findings when people did go to more liberal bakers and tried to get them to custom design cakes that were offensive to them. So it wasn't just that in Masterpiece Cake Shop, you had the Colorado folks who were hostile to Jack Phillips. It's also that they were inconsistent in their application of their own rules. And so that was one of the reasons why you had that 7-2 majority in Masterpiece Cake Shop.

And I don't know all the details because I don't have the opinion in front of me maybe i could tab it up no i i guess i remember that from masterpiece but uh to me that just makes this all the more baffling like if you if this is only on one direction and like, this has nothing to do with religious belief also, which is, I think, important. You know, we had some listener email asking like, well, a lot of these things don't have to do with religious belief. Like I heart KKK. That's not that I have a religious objection to putting that on a cake. It's that I don't want to. Nazis are the best on a Twinkie, you know, like, no, thank you. And so I think this whole conversation has gotten too caught up in the religious aspect of it and less on the compelled speech aspect of it. And I'm just curious how the right, I think the right has lost a bit of its momentum by getting caught up on

the religious aspect, especially with Masterpiece Cake Shop and Arlene's Flowers on this free exercise argument, when in fact, this was always compelled speech. It never really had to do with whether you had a religious objection to gay weddings. It had to do with compelled speech around anything. Well, I think one of the reasons for the religious emphasis is also that when you're talking about, well, for one thing, the religious emphasis emerged in Masterpiece Cake Shop because of the religious hostility. So the religious, the anti-Christian hostility in Masterpiece Cake Shop or the hostility to Jack Phillips' Christian beliefs was so obvious that that's what made that case 7-2. I know, but that's actually part of the problem here,

is we got down this road of religious hostility, and this case never should have been about that. And I think this case, the website case, highlights why. This isn't about religious objection. This is about whether the government can force you to say a message that you disagree with, no matter what that message is, if it's about the KKK or if it's about gay weddings. Not, for instance, Heart of Atlanta Motel about public accommodation and discrimination. Because in that case, your hotel isn't expressing anything by allowing someone of a different race to stay at the hotel that's not compelled speech there's no speech there at all this is speech and so i think the masterpiece cake shop argument and the religious discrimination argument i actually think that

might have slowed the progress on these compelled speech cases, but this seems to me a way to speed it back up again. Oh, yeah. And part of the reason, I think, Sarah, that there was some slower uptake on Masterpiece and Arlene's Flowers is that the nature of the expression at issue was more contentious than it was expression. So, you know, the Masterpiece cake shop oral argument was just a ton of time was spent on,

wait, where's the line on, is it really, you know, is it really, can you say that a custom design of a cake under any circumstance? Because the facts were that Phillips said no to custom designing the cake before they told him what design they specifically wanted. And so is it really the case that all custom designs are going to be that kind of same

artistic expression? Where's the line? What about floral arrangements or floral arrangements, that kind of artistic expression that's equivalent to something like website design, which includes actual words that are often drafted by the website designer? website design, which includes actual words that are often drafted by the website designer. Let's put it this way. It's so obvious that the website design was pure speech that the judge ruling against the website designer said it was pure speech. Whereas with the Masterpiece Cake Shop, there was a lot of back and forth as to whether what Phillips was doing was the kind of expression that the First Amendment protects. I remember having a podcast

before I came to the dispatch on this very issue and I was talking to a progressive guy and he said, look, I'd have been with you if they had told you, if they'd gone to Jack Phillips and said, you need to do a cake that says gay marriage is awesome, then that's obviously expression, but those weren't the facts of the case. And so I think that's part of the reason,

and it's also one of the reasons why we might see our vehicle right here, right here. If they don't take it on bonk and they don't resolve the circuit split, this might be the vehicle right here. Just a quote from Justice Timkovich's dissent. He says, to be sure, the Supreme Court has warned that it wishes to dispel the notion that strict scrutiny is strict in theory, but fatal in fact. But it is the rare case in which a state demonstrates that a provision passes strict scrutiny. Skipping ahead, CADA is not narrowly tailored so as to survive its encroachment on First Amendment liberties. Eliminating discrimination in places Skipping ahead, But ensuring access to a particular person's unique artistic product, as the majority holds, is not a compelling state interest, nor does the majority cite any case law to support this unconventional characterization of a compelling interest. That's the money shot right there. Yeah, that's it. That's it. So it is teed up, and I'm very interested to see this en banc question that you raised, but the issue is right there.

You're going to have a pure speech case going up to the Supreme Court if the circuit doesn't take it en banc and under basically ideal facts for, to make the speech argument. All right. So Sarah, shall we move on to the fallout of January 6th? Some legal fallout from January 6th. Yes. So Congressman Mo Brooks was sued for his involvement in January 6th.

And he claimed protection under the Westfall Act, meaning that the government, he was acting in the scope of his employment, the government would have to represent him. And the Department of Justice in a 29-page brief filed this week said, no, we don't. You'll remember we talked about the Westfall Act previously when we said the Department of Justice was going to continue to defend Donald Trump in that defamation lawsuit because he was acting within the scope of the office of the presidency. Well, they've come out the opposite way on this, saying that Mo Brooks was in fact acting in his electioneering and campaign capacity, which is not an official function. And that, as they put it,

members of Congress are subject to extensive restrictions that carefully distinguish between official functions and unofficial activity, including electioneering and campaign efforts. It is undisputed that Brooks addressed the crowd on January 6th. And Brooks does not dispute plaintiffs' allegations that the rally, quote, was funded and organized by the Trump campaign and groups supporting then President Trump's past candidacy. Nor does he dispute plaintiff's allegations that the purpose of the rally was to advocate that Donald Trump should be declared the winner of the 2020 election. So basically, they say this was not even close to being within the scope of his employment related to being a member of Congress. This was electioneering and campaign activity, therefore unofficial, therefore not Westphalic, therefore DOJ doesn't represent him, therefore you can't dismiss it,

and the lawsuit will continue. Yeah, I thought this was, I was reading it and it was sort of like, well, of course. Yeah, of course. I mean, he's at a privately funded event. He's not, he's, he's urging a particular political course of action. The allegations of the complaint that were, were that he's, he urged a lawless course of action. Now, the interesting thing about this, I mean, there are a number of things that are interesting about this. This doesn't mean that he's therefore going to be liable. This is not,

yeah, this is not something that would, that really says one, you know, one thing or the other about whether or not he incited or, or helped incite the riot. It's, it's simply saying he doesn't get to be dismissed from

the case right now and have the United States of America substituted in as a defendant because he was acting as Mo Brooks. He was not acting as Congressman Mo Brooks, which is the important distinction. And it's going to be, you know, one of the things about these lawsuits or this lawsuit, if it's not dismissed, you know, if it's not dismissed on a motion to dismiss, you're going to have some ability to hear to conduct discovery. Now, it may be dismissed on a motion to dismiss.

It may not get to the discovery phase, but this will connect with something that I talked about yesterday in the Dispatch podcast, the ability to obtain information. When you're talking about a grand jury can obtain information, a congressional committee can obtain information, but one thing that's kind of interesting about congressional subpoenas is they're often flouted um it is i i don't know i'd be interested in your opinion on this sarah uh civil discovery and depositions uh are they is is there an argument that there is more ability as a practical matter Is there an argument that there is more ability as a practical matter to obtain quality information through a civil suit?

And my argument in favor centers around a deposition, which in my view is far more rigorous than any kind of congressional examination at a public hearing. Oh, yeah. I mean, look, and I've said this in the criminal context. I think that the 500 plus indictments are more likely to to show new information about what happened on January 6. Then the select committee, I'm very open to being proven wrong about that. This is just my opinion at the front end of both of those things. Right. But, yeah, and it's for exactly that reason. Well, it's for that reason and some others. A, yes, congressional subpoenas can be delayed. They can be flouted. There is no Congress jail.

Yes, there used to be, but there's not anymore. And members of Congress with the five-minute limitations tend not to be able to get very far in questioning, which is of course, not the case in a deposition. Um, so for a lot of reasons, Congress isn't exactly the venue. You want to do this anymore. P S by the way, I am stunned that for anything like this, they still do. Each member gets five minutes to question a witness instead of appointing one member to actually ask questions so that a witness can't just filibuster the five minutes. And as someone who has prepared many witnesses to testify in front of Congress, you're never telling them to filibuster and not answer the question, but you are reminding them that it's only five minutes. There's only

so much you can get into and to kind of not worry about it too much on that front. And I'm not sure why members of Congress haven't figured that out because it's pretty clear from watching them that that's what's happening. So on the vote-versus-front, yeah. You know, I was just going to say you raise a great point

because I remember in the Kavanaugh hearing when Christine Blasey Ford came up, Republicans had decided to delegate some of their questioning to an attorney. But the problem was her questioning was broken up in five-minute increments. So she could start asking questions for five minutes, then Democrats would interject and they would have their five minutes. And I remember sitting there watching that and having an incredible amount of empathy for the attorney put in that impossible position. I mean, having conducted many depositions, you cannot clear your throat in five minutes

to begin a line of questioning, to set up a line of questioning. It takes time. It takes, you know, to set up a line of questioning. It takes time. This is not a process that is easy to accomplish in just a soundbite segment of time. And that's one of the reasons why even a good lawmaker, even a good one, even one that's really not grandstanding, they're not going to get much in five minutes. And of course, what we saw in the Flossie Ford testimony was that Republicans ended up hijacking back the time because they didn't think she was scoring enough points or whatever, which is sort of to my whole point of why you're not going to get a lot of new information.

They didn't get any new information. They just got some talking points that could be used in clips on social media and cable news, etc. Well, okay. By the way, David, there's this amazing header in the brief, the Department of Justice's Mo Brooks brief. Yes. Section two. Instigating an attack on the United States Capitol would not be within the scope of a member of Congress's employment. The complaint alleges that Brooks conspired with others

to instigate a violent attack on the US Capitol and incited a riot there. Instigating such an attack plainly could not be within the scope of federal employment. Under District of Columbia law, an employee who maliciously acts contrary to his employer's interest acts outside the scope of his employment.

This is because conduct of a servant is not within the scope of employment. If it is too little actuated by a purpose to serve the master. I mean, I just, who wrote that at the department of justice? Like who, who was assigned the task of like, hey, obviously one of our arguments needs to be

that like it can't be within the scope of your employment if it's, you know, orthogonal to that employment. And they're like, how do we write that? And they're like, how about the second restatement? Yeah, yeah, I guess. I don't know, guys. Like, hey, law clerk, why don't you write that this summer?

I mean, it's just like embarrassing to have to write that out, as was all of January 6th. Oh, yeah. And I mean, part of you wonders, what happens if you just filed something that said instigating an attack on the U.S. Capitol

is not within the scope of a member of Congress's employee? Just come on, Come on. It's about like if you're talking about, say, somebody who was an employee of BP saying, blowing up a BP gas station is not within the scope of the employment of your employment at BP. I mean, it's just crazy. Just crazy. Yeah, I'm very interested to see what the the court does with this case legally because we had the whole because the really interesting issue here is the incitement question that's the that's the really interesting issue here and is there a sufficient allegation

tied to incitement to escape a motion to dismiss. And I have talked to a lot of First Amendment attorneys about January 6th. And the consensus, and I think this is something that you felt at the time as well, Sarah, was that while you're walking up closer to Brandenburg levels, you're walking up closer to Brandenburg incitement, and you're walking closer to Brandenburg incitement than we typically see in those types of allegations, you're still not there. That you're, that still,

you're still not quite there. So, but it's, this will be, you know, rather than legal consensus, this will be the first time that a judge takes a look at that question. I'm just fascinated to see what they say.

By the way, another DOJ brief this week found that former Trump officials would not be able to invoke executive privilege to decline to testify before Congress and that select committee. That one I thought was a little stranger, to be honest. They said that there's an extraordinary circumstance exception and that this met the extraordinary circumstance exception i will admit that the reason that i'm pushing back on this is because obviously i want it to be true and i think executive privilege is probably invoked too much and too broadly but uh you know i hate hate, hate, hate, hate, hate, hate, hate in law. Anytime someone says, well, sure, that's the rule, but this is an extraordinary circumstance. That's not what the rule of law is about.

I agree that January 6th had some elements to it that felt quite extraordinary. Is the use of executive privilege that day extraordinary? I would argue no, actually. Now, maybe, and this is the problem, right? If the president said, hey, let's have a coup so that we end self-government and permanently put me as president for the rest of my life and that I pass it on to my bloodline, that would be an extraordinary use of executive privilege. But the problem is you have to pierce executive privilege to even figure out whether that was

happening or whether in fact what happened that day was very much normal conversations. I know, they probably weren't very normal, but the purpose of executive privilege is that presidents can get candid advice from their advisors. The reason we don't like to pierce it is because you want presidents getting advice from the people around them. And if they can't, because they know that every single conversation that they have with anyone near them will then be, you know, sworn to under oath in front of a congressional committee, you end up really isolating the president. They make bad decisions. They don't get good advice. They don't ask people for advice. I, I don't know. I'm very torn on whether I think anything that happened on January 6th warrants basically getting rid of executive privilege for that day. What did you think, David?

bit too broad in my view. I think they're too broad, but I do think that you don't just sort of say, well, the executive privilege exists until I deem in my infinite judicial wisdom that it's important enough for it not to exist. That's the problem that I have. And, you know, look, I think the greater problem here when you're talking about congressional investigations is much more congressional impotence than anything else. We have seen multiple administrations just sort of say to Congress, what was it, the Andrew Jackson to Justice Marshall? He's made his ruling. Now let him come enforce it. That's right. Presidents say to Congress, okay, you've held

me in contempt. What are you going to do about it? Because what ends up happening is these contempt, contempt is then, a contempt determination is then referred to what? The executive branch, to the executive branch, U.S. attorney to enforce. Now, you might have more vigorous enforcement of a contempt citation when you have a Democratic executive branch who is going to receive that referral, the contempt referral. But at the same time, we also know that there is a bipartisan, multi-generational sort of unanimity amongst presidential administrations to preserve presidential and executive power and authority. preserve presidential and executive power and authority and giving Congress more teeth has been contrary to the executive branch's position across multiple administrations. So I guess that's a long way of saying, Sarah, bring back the congressional jail. Well, and now that the Supreme Court has moved across the street i mean there's just no reason

not to they've got all that extra room yeah absolutely just bring back the you know yeah absolutely just set aside a room with a cot um you know it throw in a toilet and if not a bucket for the time being and then then you'll have folks who will probably feel a greater urgency in responding to congressional subpoenas. So there you have it. Being held in contempt of Congress and then going to Congress jail would be kind of awesome. I think that would really change things. 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. All right, David. This is a pretty short podcast today, but we still need to talk about, well, the continued fallout from a dinner that wasn't a dinner that happened in New Haven. And for some reason, we all still care about this. Yeah, this is the wild.

So do you ever read something and you say, I'm fascinated by this, but I don't have a reason to be fascinated by it? by this, but I don't have a reason to be fascinated by it. And then you look around and it seems like everybody that in your circle is fascinated by this, even though you shouldn't necessarily be. But I think anytime there's drama at an important national institution, people's eyes are drawn to it. And Yale Law School, let's face it, is an important national institution. And we've talked about this before. Amy Chua, one of the most famous law professors in America, the tiger mother, has come under fire and has been disciplined by Yale for reportedly holding dinner parties with students against admonitions during COVID not to have students over. And so Elizabeth Brunig, who's really a wonderful writer and a wonderful reporter, and a very nice person too, by the way,

has done a deep dive on this thing that we've talked about. And she has come closer, as near as I can tell, to anyone to unpacking what actually happened. And involved, and when you hear about it you think what I don't know what your response was a reaction to it was Sarah but essentially and when I tell you this story you're going to think my goodness how petty but essentially there were three students they were each given a pseudonym Two of the students were going through sort of a personal slash career crisis because one of them was embroiled in a controversy at the Yale Law Review that was beginning to get media attention. He and a friend sought Amy Chua's advice. Chua invited them over to the house.

As you would when you're going to a professor's house and you're a young law student, they tried to figure out what should they do, should they bring a gift, and they brought a bottle of wine, but it wasn't a dinner. It was a pre-dinner sort of casual meeting at her house. She allegedly didn't drink any of it. Only the students drank any of it. They got advice and left. but only the students drank any of it.

They got advice and left. And then they had a similar, another event later on where there was a similar sort of casual interaction where they got advice regarding their personal and professional crisis they were in the middle of. And a third student got wind of this. Well, now wait,

it's a little different than even got wind of it. The third student overheard the conversation in what the laundry room or something about the conversation of what they should bring over and based only on that nothing leading up to it including what the meeting was about when it would be whether it was dinner nothing else just this back and forth of like oh gosh what do we bring as the other student like goes presumably to like move their stuff from the washer to the dryer, this student takes it upon themselves

to start taking notes. Yeah. And eventually, the student starts his own independent investigation into this, creates what, about a 20-page PDF full of kind of wild... Pardon?

The dossier. The dossier, yes. Full of wild allegations. And then this thing circulates widely within the law school community. And then to make a long story short, eventually, and according to Chua, she is summarily blocked from teaching these small groups, these first-year small groups that are very important and part of the Yale experience, with really, in her view, in her telling, minimal to non-existent due process. And the picture that it paints is really of a series of people who had an ax to grind against Chua for a lot of other things. For her seeming influence with a number of judges and her ability to place clerks, her marriage to a husband who had sexual harassment allegations lodged against him, her books that she'd written,

just a wide variety of axes to grind. Oh, but let's not kid ourselves. You left out the most important one. Which is? Her defense of Brett Kavanaugh. All of this started after her defense of Brett Kavanaugh. Yes. Right. Right. That's correct. Yes. And so her defense of Brett Kavanaugh combined with all of these other things, it really paints the picture of a law school, not just a law school, probably maybe the second best law school, Sarah, that in the United States. I see what you did there. Yeah. Yes, thank you. Probably the second best, maybe the second best law school in the United States of America,

an engine producing, you know, legions of future American leaders and future members of the American elite engaged in remarkably petty conduct that is deeply, it seems to be motivated by a deeply punitive conduct motivated by chua's participation in the political process on behalf of brett kavanaugh um and if that is the morality and if that is the um approach to the public square that is part of the ethos of Yale Law School, that has consequences for our country.

So I guess that's why this fascinates is if that is the culture that is generating a slice of the next American elite and is populated by a slice of the current American elite, that is deeply distressing. I mean, it was petty. It looked vindictive. It was in many ways absurd. And so that's why this thing has kind of made me turn my head and pay attention to it. head and pay attention to it. So I want to focus in on one part of Elizabeth Brunig's write-up, which I'm struggling with. I don't know what I think about it. So she, in referring to that third student, the one who takes notes in the laundry room and eavesdrops and continues to then over text message, as you said, try to investigate on his or herself, you know, herself, the allegations that he or she is trying to bring. Um, and it's like, so did you go over there for dinner? So did you see Amy Chua in person? And like the student kind of gets like

figures out kind of what's happening and ghosts. And anyway, Elizabeth Bruning talks about her own understanding as a child, when she's taught not to be a tattletale. And I know this is a little off the point, David, but is it weird that I'm a little uncomfortable with the line that we draw on teaching young children about being a tattletale because it often to me feels pretty arbitrary when we want kids to raise their hand and say that someone is doing something wrong. And when we think that they're just being petty and petulant. Now, I think adults should probably have a pretty good sense of where that line is, but I'm, But I'm not talking about the law students here. I really

am talking about Elizabeth Bruning's own version of this, of like, we're teaching kids that when you see something wrong, you should tell someone. But then we're also teaching them that if you tell someone, you're going to get reprimanded for being a tattletale. And that's a really negative thing to be. And it means you're like a busy body. And you end up with this culture of, well, obviously of not narking on your friends. Okay, there's something to be said for that. You ride or die. I get it. But also, I think you end up with a culture of, you know, US gymnastics. Yeah.

Yeah. Yeah. I mean, to me, what you're talking about here is, because I agree that when you're talking about children, telling children, don't be a snitch, don't be a tattletale is not the job of the adult. The job of the adult is to teach children what is important to disclose and what is pettiness. And so you're supposed to be shaping that. And you're saying that Billy said something mean to me. Well, you're going to want to know what Billy said. It could be something truly dreadful, or it could be something just very petty. And then you teach in that circumstance, what would be petty, what was in what's worth reporting or Billy, uh, hit me at the playground. Well, yeah, well, you want to know if somebody got hit on the

playground. Um, so what's in the, uh, happening here is you have two sets of adults, young adults and much older adults. And both of them, both the older adults and the young adults here, um, behaved in a way that was remarkably, dare I say it, childish and petty. Um, this sense had never been shaped for them. And so, you know, this, that they were, you know, there has been a cascade of failures in shaping this sense of perspective. Um, but yeah, I mean, I, you know, one of the things that we want people to do is to be empowered. My, my youngest goes to a great school here in, um, greater Nashville, just a fantastic school. and they talk about a concept they call self-advocacy which i think really has some and it's been very very good for my youngest daughter this idea that

if i'm not comfortable with something i should speak up and then let the adults react in the right and the proportionate way once the child speaks up. So I do think that this sort of like snitches get stitches idea that can perpetuate childhood has got some real downsides, but it's the responsibility of the adult to shape the child's perspective on the difference between pettiness

and malice sometimes even in sort of a tattletale culture so to speak versus self-advocacy i think that's right and i think in in this case for instance let me paint the whole thing in a different light which is the student overhears that they're going over to amy chua's house and doesn't know why for all they know it's for dinner and a razor and so they're like, huh. And they kind of like take note of the date and what the students are talking about. And then they try to follow up with the student and say like, Hey, did you go to dinner at Amy Chua's house? And they can't get a lot of

information. And so they don't really have evidence one way or the other, except they know that they're seeing Amy Chua in person clearly or intended to. And they then take that information to, you know, the Dean of student affairs and say look i can't really say one way or the other but you told us these were the rules these people i think are trying to break the rules or are breaking the rules what can what am i supposed to do about this i don't think that's tattletailing i think that that would be a totally appropriate thing for a student to do if a little bit unnecessary. I'm not sure I would do it, but like, fine. But the difference here is that then the school,

you're right, the older adults treat it as if like, ah, yes, this 20-page dossier that you've created was really worth your time and worth our time. And now we're going to like launch this whole thing into it, except not because we're not going to do our own investigation or even ask any questions of Amy Chua. And then we're going to interrogate these students. I mean, the version that they have in this of how that interrogation

of the two students who, like, here's the quote, of the two students who, like, here's the quote, that the administration is saying, all we need is the alcohol. Just give us the alcohol and that's enough. I know. What? Yep.

I mean, let's have some proportion on what's happening here. Boy, that really sounds like an impartial adjudicator, doesn't it? Right? This was a prophylactic put in place to not have dinner with a certain professor. I don't think that made any sense to begin with, but fine. You create a rule, you need to enforce the rule. But like browbeating and bullying these students into admitting that they were drinking alcohol by someone who is in a serious position of power within the school, by the way, and you're at a law school.

A law school, David! Anyway, but also, I don't care about a dinner that didn't happen in New Haven, Connecticut, and the fact that it's a long piece in the Atlantic and not the first one. I hope that Yale can, you know,

just get it together, people. Just have bigger priorities. I've got a two-word admonition for Yale. Grow up. Seriously. I mean, really. Grow up.

I mean, again, to be clear, the thing that might have happened that all this is about, but it turns out didn't happen, was a dinner at a professor's house where a bottle of wine might have been opened. Oh, dear God, how have we not broken in to your regular programming? How about a four word? Four words.

Grow the F up. Whoa, big words from David French. Strong words. Letter to big words from David French. Strong words. Letter to follow. Yes. Yeah, absolutely. As they say in diplomat speak, a frank exchange of ideas. Wow.

All right. Well, it's going to be a little bit shorter today, but we had some good topics and please everyone go and go rate us on iTunes as we've, or not. I, you know, I've said this, I go through this a hundred and almost 200 times now. And I still say iTunes, Apple podcasts, rate us on Apple podcasts, subscribe on Apple podcasts, and please check us out at the dispatch.atch.com and buckle up, everybody, because it's almost August. Woohoo! And that means

we're going to have some cool off-topic podcasts. So tune in. We will be back on Monday. Thank you.