Advisory Opinions - Copyright Law and Andy Warhol

Episode Date: June 1, 2021

After our hosts catch us up on the latest goings on at the Supreme Court, Sarah tells about another copyright case involving none other than the great Andy Warhol. Plus, David and Sarah chat about the legality of former National Security Adviser Michael Flynn’s call for a coup, an updated indictment involving the Oath Keepers and their January 6 activities, a lawsuit against Florida’s Big Tech law, whether public schools should ban critical race theory, whether you should defer law school if you have the chance, and so much more! Show Notes: -Tuesday’s Supreme Court orders -Garland v. Ming Dai -United States v. Cooley -Prince photos -Oath Keepers indictment -Conversation between David and Christopher Rufo moderated by Bari Weiss -“The Sliming of Bari Weiss” by David French in National Review -Netchoice LLC v. Moody Learn more about your ad choices. Visit megaphone.fm/adchoices

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A creamy drink where smooth matcha meets subtle floral notes. From our airy lavender cream cold foam. Only this spring. Only at Starbucks. Iced lavender cream oat matcha tea latte includes dairy. Welcome to the Advisory Opinions Podcast. This is David French with Sarah Isger. And oh, Sarah, the Supreme Court. I actually am Charlie Brown now.

I kicked once again at the football. I did all these radio interviews this morning and I was like, it could be today, 10 a.m. Eastern. No. And it was, well, you are going to update. You will, because we're not going to drop the ball. We're not going to drop the ball. We are going to update you on U.S. versus snoozer and

U.S. versus slumber. I can't remember exact names of the cases that were decided, but I think that's close enough. But you're going to tell us about it. You're also going to tell us something about Andy Warhol, which, you know, one thing, listeners, we sometimes kind of allocate topics between the two of us. So sometimes a topic is coming and all I know is the title of it. So all I know about this topic is the title, Andy Warhol. So I'm going to be hanging on the edge of my seat, just like you.

Some of you guys might have noticed that a former national security advisor to the president of the United States of America over the weekend called for, I don't know, a coup. So we're going to talk about the legality of that. We're going to talk about an updated indictment in the Oath Keepers case based on January 6th. You know, this thing that some people on the right seem to think was just like a little bit of exuberant tourism. We're going to talk about that. Also, an update in a case or a what was at the time a potential case flowing out of the Florida Ron DeSantis social media bill. Well, guess what? Already, already big tech has struck back. And so we're going to take a look at the Florida lawsuit. Over the weekend, Barry Weiss, my friend, dropped a debate

that I had with Chris Ruffo, who is an activist Manhattan Institute scholar who has been taking on critical race theory and has been advocating for a lot of these anti-woke bills that Sarah and I have talked about. And that debate burned up my Twitters over the weekend. And so I'm going to answer and talk about some questions that I got as a result of that debate. Here's a topic that I'm also on the edge of my seat about, Sarah. Sarah has a legal cicada update, about Sarah. Sarah has a legal cicada update, a legal cicada update. Then we're going to answer whether or not you should defer law school if you have the chance. And then we're going to wind up with an article about, with a brief discussion of an article called Beirut on the Charles that I have and we have mentioned before. You know, when you say it all together, Sarah, it sounds like a lot.

Action-packed, I would say. Action-packed. Do you want to start us with the SCOTUS update? I would love to. So once again, a bit disappointing today. We got two opinions and on the orders list, we got a concurrence on a GVR. But let's back up a moment. Let's start big picture here.

Where are we on the term and what do we have left? All right, we know we're waiting for Obamacare, the case that we thought would have already happened long, long ago and hasn't. This is the question about whether the individual mandate is constitutional and whether it's separable. Great. Then we have Fulton. This is the Philadelphia gay adoption case that we knew would kind of come out toward the end, David. So I guess I haven't been expecting Fulton every day. And yet we're in June now. It's time. Okay. Also, maybe in our lesser hit parades, but for us, like nerd high hit parade cases, we have Brnovich. That's the Voting Rights Act case about the provisional ballots, whether you can tell voters they have

to vote in their correct precinct, for instance. We've got the angry cheerleader. We've got- Wait, wait, whoa, whoa, whoa. Did you put angry cheerleader in any kind of lesser category? No one else seems to be following the angry cheerleader case the way we are, David. Well, that's because we, no one else has proper perspective. I agree. On the importance of this case. I mean, angry cheerleader for me is actually like, I am so much more excited about that than Obamacare at this point, but it's not even close. It's no, it's not remotely close. So angry cheerleader, remember, is whether a school can punish student speech that doesn't happen at the school.

So, you know, slumber party, Snapchat, et cetera. We also have the AFP donation case, whether a state can force donations for a private organization to disclose their donors. And then we've got that eminent domain case that we talked about, the sovereign immunity case, whether the 11th Amendment, any suit means any suit or some suits.

Okay, so that's where we are. Once again, today we got none of those. So let's talk about what we did get. Now, first we got the orders list. Nothing too big. There was one case granted. It's sorry, not one we're going to talk about here. But Kavanaugh had an interesting concurrence. Do you remember Coniglia, David? This was the community caretaking exception to the Fourth Amendment where the court said, no, you can't use community caretaking as a reason to enter someone's home without a warrant. But there were all these concurrences that were

like, yeah, yeah, but community caretaking is one thing. There's still exigent circumstances. There's still all sorts of other reasons you can warrantlessly enter someone's home. So this case came up and was GVR'd, meaning they granted cert, vacated it, and remanded it back to the Eighth Circuit under Coniglia for them to reconsider because the Eighth Circuit said that this passed muster under community caretaking. They're like, yeah, but now that's no longer a thing. And Kavanaugh's like, okay, okay, but let me run you through some facts here. And dear Eighth Circuit, hint, hint, you didn't need to use community caretaking to uphold this warrantless search. Why don't you try to find another one?

So here are the facts. It's pretty sad. An 11-year-old calls her grandmother and says that her mother and her mother's boyfriend are having a big fight. Quote, they're fighting really bad. They need someone to come. The grandmother calls 911. The police show up. The mother comes outside the house. They ask what's going on. She says, I can get the boyfriend to come outside the house too. As he's coming out of the house, they hear a child crying. So they enter the house because of the crying child. They see an infant. Then they ask whether there's a gun. They're like, yeah, there's a gun maybe on the couch. The 11-year-old is in the house. The kids are okay, but they arrest the guy on a felony gun charge. And they said that this was an okay warrantless search because it was community caretaking, no longer a thing according to the Supreme Court. And Kavanaugh says,

to be clear, however, the fact that the Eighth Circuit used a now erroneous label does not mean that the Eighth Circuit reached the wrong result. Coniglia did not disturb this court's longstanding precedents that allow warrantless entries into a home in certain circumstances of particular relevance here. In case case the eighth circuit wasn't getting the memo the court has long said that police officers may enter a home without a warrant if they have quote a reasonably sorry an objectively reasonable basis for believing that an occupant is in seriously injured or threatened with such injury like the eighth circuit doesn't even need to write their own opinion just like ceg Kavanaugh's paragraph we're done. So, okay. That was interesting.

It really contains Coniglia and how far reaching that will be. And the answer is not far reaching per justice Kavanaugh. All right. So then we got two opinions, one from Gorsuch and one from Breyer. Yeah, so the Gorsuch one was unanimous, which was sort of interesting when I tell you the facts. The Ninth Circuit says that an immigrant who is asking for asylum and who has a fear of persecution, unless the immigration judge of persecution, unless the immigration judge says that this person does not have credibility, has an adverse credibility finding, the Ninth Circuit says you have to treat everything they say as credible and true. And the Supreme Court basically just said, nah, dog, like no way. Like a lack of adverse finding does not mean that you must then treat everything they say is true uh this was two cases i mean neither one particularly relevant because that was the

legal finding but basically one guy um i mean the facts weren't they were pretty vivid. He said, well, what his girlfriend said, who was 17, was that he locked her in his bedroom one evening, caught her trying to escape, dragged her back into the room, threatened to stab her and dump her body in a dumpster and forced her to have sex with him. Then he beat her, leaving bruises on her back, neck, arms, and legs, stopping only when she begged for her life. When she asked to leave, he dragged her out, bruises on her back, neck, arms, and legs, stopping only when she begged for her life. When she asked to leave, he dragged her out through her against the stairs and kicked her as she rolled down. The ordeal lasted nearly 24 hours. During his immigration hearing, he admitted hitting her, but quote, not that hard, and said he was trying to protect his daughter and that she

had been hitting his daughter, even though in the contemporaneous record that appeared nowhere. Well, the immigration judge said, basically, I don't believe that, but didn't say he is not credible. And so the Ninth Circuit on appeal said, oh, we have to believe his version. It doesn't matter what the police report said at the time.

His version many, many years later is the one we must go with because of Ninth Circuit precedent. Yeah, so the Supreme Court said, no, dog, that's not how that's gonna go. And then the other case was a Breyer opinion. I mean, a tribal police officer has authority to detain temporarily and to search non-Indian persons traveling on public rights of way, running through a reservation for potential violations of state or federal law. This was a potential drunk driver. Yeah.

I mean, those Indian cases, though, David, they have real consequences in parts of the country. Also unanimous, by the way. So two unanimous opinions. This brings us to Andy Warhol. Drum roll. And I'm just on the edge of my seat right now. Andy Warhol.

Okay, so you remember the Google v. Oracle case where Google copied a bunch of Oracle's code and we got so many emails with various analogies about why it was totally okay that Google copied this code, which is what the Supreme Court found, basically. Yeah. You know, it's a table of content. It's not like actually stealing the words, whatever. The point is, this case exists and it stunned the copyright world. So there's this very cool case that I guess I've been following for no real reason, but it's back. This is about

an Andy Warhol print of Prince. So this woman draws Prince and I'm going to try to describe her drawing. So the background is purple and it's like a pencil-y sketch with like, and then she colors inside the pencil using just this like rusty red color for his hair and around his eyes a little bit, some mustache, a little lip color. Pretty modern looking, definitely prints. Andy Warhol took her drawing and then instead of using that rust color, he used purple. And then in the background, instead of purple, it's yellow, red, and a light blue with like sort of a symmetrical shape of those colors. And the third circuit was like, yeah, no, that is not transformative in any way. That is a copyright violation. Well, now the Andy Warhol Foundation

is saying, sorry, it was the second circuit. Google v. Oracle, how is this any different than what Google did to Oracle? I just think that is super interesting because a whole bunch of people are arguing that Google v. Oracle really only applies to computer code. And these folks are saying, no, it's going to apply to an Andy Warhol. And if you remember in Google v. Oracle, you actually have stuff about Andy Warhol. So this is from their petition for cert. The Google court even explained how that principle would apply in a case just like this one, observing that an artistic painting could fall within the scope of fair use, even though it precisely replicates a copyrighted advertising logo to make a comment about

consumerism. An obvious nod to Warhol himself using a branded soup can to comment about consumerism only makes sense if the original image is recognizable. So too with the Prince series. Warhol's comment about fame and celebrity would have been lost without a recognizable depiction of Prince. So I read that and was like, ooh, interesting point about the soup can. And then I read their, well, it has to be recognizable depiction of Prince. Wait, but you don't need to use her drawing of Prince. You could have used a photograph of Prince. You could have drawn Prince yourself. So many options other than using someone else's artistic copyrighted thing. And also how is this a statement on celebrity? I don't get it. The soup can,

I totally get. Not that me getting art is what determines its legal significance. But David, I am not at all confident the court will take this or even GBR it and send it back to the Second Circuit in light of Google v. Oracle. But I wish they would. I really do. Copyright doesn't normally get me out of bed. But for some reason, this Prince thing does. And I'll put the two photos up on our website so that people can see them. I mean, David, this isn't transformative. I'm going to show them to you. Like this is just straight up, like you added some different colors yeah yeah that's okay i'm looking at it right now and we'll we'll put it on the website says it'll be great reason for you go to the dispatch.com and click on that advisory opinions tab um but that's

those are remarkably similar pictures just with a little bit different color palette. And I do think that the soup can is really different. It's a commercial copyrighted thing, not artistic. You don't sell, you don't sell the soup cans because of the label on the soup can. The purpose of that copyright is different. It's to identify the soup can versus creating art, whereas this was meant to be art. And then he just took that

art and turned it into different art. Well, yeah, you're not buying a soup can painting and thinking where's my soup? When I'm hungry. Yeah, exactly. Exactly. All right. Well, that's your Supreme Court update for today. All right. So, Sarah, are you ready to debunk Twitter law? Oh, Twitter law. But this actually does raise some, there's some interesting layers to this. Okay. So, this is what happened over the weekend. Michael Flynn. I still can't. Every time we go into a Flynn story, I still can't believe we're talking about the same guy who was really key during the. But anyway, who's now become just this wild, stop-the-steal conspiracy crank. Anyway, so the former national security advisor, Michael Flynn, former, I believe, three-star general, Michael Flynn,

is on stage at a big MAGA event, and he's asked the following question. I want to know what happened in Myanmar. I want to know what happened in Myanmar. It can't happen here. A member of the audience identified himself as a Marine, asked Flynn. This is from the CNN account. I watched the video. So again, the question is, I want to know why what happened in Myanmar can't happen here. And cheers, cheers, cheers. And Flynn responds, no reason.

I mean, it should happen here. No reason. That's right. Bigger cheers. Now, Flynn is saying now that what he really meant was no reason for a coup to happen here. No reason. That's what he's saying is instead of saying no reason it shouldn't happen here,

he's saying no reason it should happen here. And he's pointing back to the statement that if you read it in a certain way in squint, it's saying no reason. I mean, it should happen here. No reason. That's right. Anyway, it was clear from context. He was agreeing with the dude that what happened in Myanmar can happen here.

And so all of a sudden, Twitter erupted with a couple of couple of that one this is incitement of violence and number two that he should be he should be tried uh under the ucmj court-martialed because he's a retired officer um let's deal with number one first, which is the completely easy, boring question. And then we'll deal with number two, which is interesting. So number one is, Sarah, is that incitement to violence? No, it is not.

It's not even close. It's not in the ballpark. We have talked about incitement at length when we were talking about the president's comments on January 6th, which also I do not believe came particularly close to the incitement standard. But at least that was in a world in which that was an interesting conversation about the incitement standard. This isn't, except on Twitter. standard. This isn't, except on Twitter. Right. The difference between January 6th, which I would say, you know, you and I, I was thinking it was much closer to incitement than you thought, but this is so far from January 6th. I mean, January 6th, the president speaks, a number of

other people speak, you know, trial by combat, take your company, you know, all the, you know, with a lot of inflammatory rhetoric, and then immediately the mob goes and attacks. So there was whipping up the crowd. Crowd goes attacks. That's about as close as you're going to get to incitement, depending on which speaker you're analyzing, etc. That's getting in the neighborhood, in the ballpark. Going to a conference and just sort of saying, yeah, there should be a coup is not incitement. It is constitutionally protected. Let's be absolutely clear on this. You can advocate for the violent overthrow of the

United States government. That is a constitutionally protected expression. Now, you cannot incite it. You can't incite it. You can't conspire to make it happen, but you can advocate for it. It's constitutionally protected. I mean, there are even circumstances in which, I mean, there's this famous Supreme Court case in which an anti-war protester says, if I get a rifle when they draft me, first thing I'm going to do is shoot President Johnson. Constitutionally protected. There are all kinds of people all around this country who are right now arguing that the United States of America should be violently overthrown and nothing happens to them because it's constitutionally protected. I remember when I was being interviewed to, before I taught at Cornell Law School, we're driving this evening, driving to a restaurant to meet the rest of the department and driving there. And we pass by this little out-of-the-way house that is just surrounded by cars, so many cars. And I looked at it and I said, I wonder what's going on there. And without skipping a beat, the chair of the department said, oh, that's an old revolutionary sale.

It's like, what? You know, from the 60s, they just never gave up. So they can sit there and talk about overthrowing the government. It's still constitutionally protected. So that wasn't close. Now, here's the interesting thing, Sarah, which raised an interesting discussion. Can Flynn, who's a retired officer, be court-martialed if he did violate criminal law? Technically, yeah. Technically, yes. Interesting quirk of the law. So, Uniform Code of Military Justice applies to active duty service members who are on active duty.

It applies to reservists and guardsmen when they are in federal service. So when I was in the reserves, when I was called up on active duty, when I was on active duty status, I was subject to the UCMJ. So when I was in Iraq, when I was in South Korea, etc. Yes, when I would do what's called inactive duty for training, I was still subject to UCMJ. So when I would go for like the weekends or the two weeks out of the year or whatever, you know, like these longer training periods, then I would be subject to UCMJ. And also guess who else is subject to UCMJ? It is not retired reserve officers, but retired active duty service members. But it's controversial. It is very rare, Sarah, it is very rare that somebody is going to be tried under the UCMJ as a retiree, and it is now actually under constitutional challenge. There's always a case for everything. There's always, always a case for everything. And it's a case called Stephen Larrabee versus Kenneth Braithwaite.

Ooh, like that last name. Like that last name a lot. Yeah, yeah. It's Kenneth Braithwaite. Ooh, like that last name. Like that last name a lot. Yeah, yeah. It's Kenneth Braithwaite. And this is a case, Judge Leon from, Richard Leon from the D.C., from the United States District Court for the District of Columbia.

And here's the key part of his opinion. Indeed, under the current regime, a retired member of the army and an inactive member of the army reserve who get into a bar brawl could face two entirely different systems of justice. The army retiree could be hauled before a court martial and tried by a military judge and active military officers, whereas the army reservist would be entitled to indictment by grand jury and trial by a civilian jury of his peers overseen by an impartial judge. Please! Literally, it says, please! Exclamation point. I don't know if I've seen too many please! Exclamation points in court opinions before. So keep an eye on that case it's on appeal to the dc circuit um stephen vladik is one of laramie

laramie's attorneys stephen vladik he's a law professor at university of texas good twitter follow great twitter follow yeah so very interesting case sarah judges don't like absurd outcomes no we should add that to our list of like, bad facts make bad law. Like, absurd outcomes make for tough going, even if everything else is on your side. And that's an absurd outcome. I remember I used to live next door to an old Tennessee trial court judge

who had stories, Sarah, who had stories. I promise you one of the most entertaining things you can ever do in life is have dinner with a retired rural Southern trial judge. And I remember he swore in one of the attorneys who worked for me at ADF into the Tennessee bar and he said to him, he pulled him aside afterwards. He said, I just want you to know, sometimes there's the law and sometimes there's what's right. That's again, huh? You're right.

But I'm a little uncomfortable with what you just said, Judge. But yeah, judges do not like absurd outcomes. All right. Hey, David. David. Yes? Can I, in real time, do a little fact-checking on myself?

Oh, fact-check away. So, you know, when I was listing the Supreme Court cases that we still had outstanding i i missed i missed three oh i missed three that like we really do care about okay so now they're gonna get special love and attention from me like that kid you leave at the gas station accidentally um we forgot the Cedar Point Nursery, the union's case, where the government

inspectors, or sorry, the union representatives need access to the facility. That law, that's a big one that I'm really excited about. Second, and I can't believe I forgot this one, the NCAA case, David. Yeah. College

athletics. Oh my goodness. Totally forgot goodness totally what's wrong with us huge huge uh and then that warrantless entry where the police officer sticks his foot as the garage door is closing after the slowest shortest high speed chase uh and the guy pulls into his own garage and whether that counts as exigent circumstances when it was just a misdemeanor violation to enter his home. So yeah, three cases. Okay. You're now my favorite children. We'll never leave you at the gas station again. We're so sorry. And one other thing, you mentioned email and do we need to at least acknowledge the hurricane of email that we received over? Okay. I'm going to blow up the pronunciation again. Oh.

Sine, D-A? No. Oh, God, David. I don't even know. Okay, folks. So many of you are emailing me about Latin that my sine die pronunciation was not proper Latin. I never claimed it was proper Latin. I claimed it was Texan, like voir dire and sine die. That is the way you pronounce it in Texas. David was properly schooled that not only do a lot of states call it sine die, but in fact, we had international emails informing us that other countries call it sine die, though it appears that only Texas pronounces it sine die and that everyone else uses the Latin pronunciation. And that just shows how they lack creativity

and their own culture as we have in Texas. You know, the question, we got so many, I'll just go with the Texan, sine die emails. The question that I ended up with was, did we approach the listener outrage of Belknapgate? Oh, gosh. You know, we might have. If you include the tweets also, it might have been.

Yeah. Yeah. Those listeners who are new might know that we had an extended discussion involving an impeachment proceedings against an individual years and years ago whose last name was spelled B-E-L-K-N-A-P. And I was so proud of myself talking about Belknap and even talking about, there was a, I believe a ship called the, what I said, the Belknap. It was not Belknap, it was Belnap. And I, I thought somebody was going to come to our house. Yeah.

Things got dicey. It was rough. It was rough. Okay. So speaking of rough, Sarah, so some interesting commentary again. So over the weekend, this was Saturday, there was a new indictment filed in the Oath Keepers against the Oath Keepers regarding January 6th. And I think this is important because as we're, you know, we just went through this big political fight over whether or not there was going to be a quasi-independent, bipartisan January 6th commission. And we'll put this indictment, there's not a lot more to say about it,

but we will put this indictment into the show notes, because if you're really interested and you sort of want to dive into it, interested and you sort of want to dive into it, what it's really going to tell you is there were various different categories of protesters there on the 6th. And there was a category of oath keepers. Now, who are the oath keepers? For you, those who don't know, oath keepers is a group of people who are generally former and current military law enforcement, first responder personnel. In other words, people who have taken the oath of office. And what they have done is they're an informal militia of people who are essentially believing that the United States is under attack from within. The Oath Keepers are led by person one in this indictment.

But, and so essentially what's happening is you have the Oath Keepers militia. The Oath Keepers are a lot of people who have military training, have military experience, who have law enforcement experience. And if you remember watching some of the footage of the riot,

you will have seen, if you watch closely, and again, some folks who really have dived into this, there was a point at which you could see what was called a stack. There was a group of people who were in single file making their way through the crowd, and they had their hands on the shoulder in front of them. And that was a stack. And they were obviously moving in a way that was trained. They appeared to be trained. Well, apparently that was a group of Oath Keepers. And what's interesting about this indictment is these guys had planned out a lot of stuff. So in addition to the breaching of the Capitol, in essence,

what they were hoping for to happen to happen was that there would be sufficient chaos that Trump would quote unquote, and here, here is the, here is the, the, the, the key post from January 4th, two days before. As we have done on all recent DC ops,

we'll also have a very well-armed and equipped QRF teams on standby outside DC. Now, what's a QRF? QRF is military lingo for quick reaction force. We have well-armed and equipped QRF teams on standby outside DC in the event of a worst case scenario where the president calls us up as part of the militia to assist him inside DC. We don't expect a need for him to call on us for that at this time, but we stand ready if he does. And we also stand ready to answer the call to service militia anytime in the future, anywhere in our nation, if he does invoke the Insurrection Act. There was a segment of Americans, Sarah, who were pretty convinced by this point that the Insurrection Act was coming.

And that they were going to be a part of the effort to keep Trump in office by armed force if necessary. And it was real. These people existed. And some of them were there on January 6th. And I think reading this indictment is a nice antidote if you're ever tempted to think, well, this was just sort of like a kind of, they just got it got out of control. I mean, it wasn't really a big deal.

People walked in and they were kind of surprised, just as surprised to be in there. They were surprised to be able to be in there. We're as shocked as you are. Yeah. Whoa, look, I'm in the Capitol. How'd that happen? And the indictment contains an awful lot of quotes from radio transmissions and other transmissions that happened in real time. And these guys were preparing, many of them were preparing for civil war. I mean, that's what they were preparing for.

And I think it's very important to read and don't, and face it and realize what actually happened here. And so, yeah, so we're going to put that in the show notes. All righty. Next topic. all righty next topic sarah have we talked about critical race theory enough i mean for my taste yes but it appears that the topic is not going away and you had a really interesting conversation uh that barry weiss uh moderated And I am curious about it. Yeah. So this was interesting. So Barry Weiss,

a lot of you guys know who Barry is. She left the New York Times. Gosh, I mean, how long ago? It was definitely in 2020. I was going to say about a year. Yeah, pandemic time runs together. She started her own Substack and she started a podcast. And Barry's just a delightful person. Little known fact, I've known Barry, Sarah, for more than 15 years.

And how did I first know Barry? I helped defend her academic freedom at Columbia University in 2005 when she and a few other students exposed some shocking antisemitism at Columbia University. You should look, we'll put, we'll put the article up in, in the show notes. It's called the sliming of Barry Weiss. It's when I wrote it when some people accused her of trying to get professors fired back in 2005, which is false. She was just exposing some of the things that they had said.

So anyway, so I've known Barry for a long time since I was president of FIRE. And she's a stalwart defender of small L liberal values. And she's also really suffered from sort of the sharp end of what you might call toxic wokeness, far left illiberal activism, for example, in the New York Times. And so she hosted me and Christopher Ruffo, who's a Manhattan Institute scholar, who's advocating a lot of these anti-woke laws that we talked about. And so we had a really good discussion. We'll put that debate in the show

notes so you could listen. And really what it boiled down to were a couple of things I want to deal with a little bit. Just a little bit, because we've talked about it a lot. One is, several people asked me, well, don't these anti-woke laws just mirror the civil rights, civil rights statutes? In other words, doesn't critical race theory, doesn't teaching of critical race theory violate civil rights statutes that prohibit discrimination on the basis of race, on the basis of sex, et cetera? Title VI in education, race in education,

Title IX, sex in education, Title VII, race, sex in employment. And the answer is, some of those parts of the statute, yes. Some parts of the statute, definitely no. Definitely no. And that what I was trying to get across was that in the effort to deal with ideas that people disliked, and many of these ideas people dislike for really good reasons,

a lot of red state legislatures are in effect passing speech codes. They're passing speech codes. They're passing laws that sweep broader than civil rights laws. They sweep broader than the First Amendment. And when they are applying to colleges, when they're applying to grant-making entity or to state grants, they're flatly unconstitutional. When they apply to a secondary school, K through 12 education, they might be constitutional, although it's not super clear, but in many ways they're a bad idea. And what I wanted to ask you this, Sarah, in your experience in high school, did teachers share their opinions? I might be the wrong person

to ask this question to, David. No, you're the right person because I bet you you triggered them sharing their opinions. I think that I caused, I inspire people in authority to say things that they shouldn't say. I had a government teacher my senior year who actually, I mean, I guess maybe this is good. Maybe it's bad.

I don't know. Asked me to step outside in the hallway and said, forgive the language, folks. Just because some teacher slaps you on the ass doesn't mean you should go and get him fired. And I was like, what is this conversation happening? So I told her, I mean, right, I was actually somehow pluckier. That was a her. Yeah, it was a her. I was pluckier.

She was the head of the union for the school. Yeah, it was a her. I was pluckier. She was the head of the union for the school. I was pluckier at 16 than I even am now, which is a little hard to imagine perhaps for some of you. And so with all of my little 16 year old self, I said, frankly, you clearly have no clue what you're talking about right now. And if it's all the same to you, I just as soon go back to sitting in your class and not learning anything. I know this will come as a shock, David, but the result of that semester was that she gave me an 89.4, which was enough to keep me out of the top 10% of my high school, which means in Texas that it would be very, very difficult for you to be accepted to any state school in the state. That's right, because you have the top 10% rule. Yeah. The principal actually offered to change my grade so that I could be in the top 10% because it was very clear that that was a

ridiculous result given my academic performance in general. And I said, no, that I would wear it as a badge of honor and something that I would remember. And here we are in 2021 and I am telling you this story. So that was a very long answer to yes, teachers felt very comfortable sharing their egregious opinions with me. So yeah, I got a lot of opinions from teachers. Well, let's move it from the egregious to the conventional. One of the more conventional opinions was a teacher who told me that if you attended his Tuesday night Bible study that you didn't have to turn in your homework on Wednesday. That was just accepted. Everyone thought that was okay. So then each Wednesday, he would give me a zero on my homework, and I would throw the paper on the floor.

he would give me a zero on my homework, and I would throw the paper on the floor. Man, why didn't we go to high school together? I was clearly a real fun girl. Oh, my goodness. Okay, so we're still not quite getting at what I'm asking. No, sorry. No, not quite. I'm talking about, so for example, when I was in sophomore biology in high school, I had an extended series of arguments with my biology teacher about evolution versus young earth creationism. So she took the young earth creationist. So this is public school. She took the younger young earth creationist position. I took the evolutionary biology

position and we argued about it. And it never crossed my mind that she was doing something legally wrong by sharing her opinion about the underlying issue. And this was something, so this was height of the Cold War. A lot of people have heard me talk about this. I had, So this was height of the Cold War. A lot of people have heard me talk about this. I was very much sort of a Cold War, even at that young age, Sarah, I was a Cold War Republican. And I would argue about the nuclear freeze

with my history teacher. She was very much for the nuclear freeze movement. I was very much opposed to it. Never crossed my mind to say, you know, school board, I've got a teacher who has an opinion I don't like. And they're indoctrinating me with that opinion because I was sitting there arguing about it. Now, if I had been graded down to, so 89.4, was that a, was a 90 and above an A?

Yeah. So in my day, Sarah, 95 and above was an A. That's ridiculous. Yeah. Now, so if I was being graded down, like I'm getting a 94.4 because I support intermediate range ballistic missiles in Europe, then I might find that a problem. But the idea that my teacher would disagree with me on a topic, that is something that I didn't even cross my mind that that's a problem. Like it doesn't even, and what we're dealing with, with these statutes, is taking teachers and saying, you can teach about something, but you can't teach that X or Y is true. So wait, are you telling me that I missed out on the opportunity to sue my school because my English teacher thought Billy Budd was a good book when it's clearly not a good book?

You could, well, you know, depends on, you know, how broad the anti-woke statute is, Sarah. I mean, she was saying as fact that Billy Budd was good literature, and I don't agree with that as being fact. I don't even know what that is. Oh, it's Melville, David. It's Melville, and it's terrible. But I think what we need to, if I can just pause, because I didn't really get to talk about this much and make this point, If I can just pause, because I didn't really get to talk about this much and make this point, because I was dealing so much with constitutionality and legality. Do we want to be in the business of banning the advocacy of ideas on the part of teachers? Is that what we want?

Is that who we want? Is that who we are? Is it our position that our kids are such sort of malleable little clay figures that a teacher advocating an idea, having a teacher say, I think white privilege is real, that we can't have that. That has to be banned. That has to be illegal. So I think pedagogically, that's a really slippery slope because it's very hard to teach anything if you don't have some sort of debate about it. It's hard, I think, for kids to grapple

with some of the bigger ideas. I think it's different in elementary school than it is in middle school, than it is in high school, what those lines are. I think it's also different to present something as, this is the only truth. There is no argument. This isn't up for discussion. And unfortunately, I think all of those are gradients. It's all very gray. Earth Day was a big thing, I remember, back in elementary school. The ozone layer was disappearing. That was something that our teachers talked about that was in lesson plans and stuff.

Whether the dinosaurs were killed off by an asteroid, if you remember, that was not actually the asteroid was a theory, but until they found the crater in roughly 1992, I think it was, crater in roughly 1992, I think it was. It was still just one theory out of many. I think that you want students to be able to get into arguments, debates, conversations with adults. And if you really have a situation, have a legal barrier where the adults can never state something as true. They can only say, here are the 10 different things that some people think are true. I think actually you're hurting the students, regardless of what the topic is, if they don't get to engage with adults because the adults aren't allowed to engage with them. As perhaps one who was feeling more antagonized,

though I'm sure the teachers felt that I was the antagonizer, I learned so much from that. And far more than I think I would have just debating my peers on some of this stuff, because a lot of times in life, you're debating someone who is your superior in whatever way you want to deem that term.

And you need to be able to figure out a way to do it persuasively, respectfully, and in a way where you don't get punished, something I clearly wasn't very good at, but maybe have gotten better. I don't know. Yeah. You know, the interesting thing. So again, there's a difference between a good teacher and a bad teacher. Yes. And so there's a difference between a good teacher and a bad teacher. Yes. And so there's a difference between a good way of expressing your opinion, a bad way of expressing your opinion. A bad way of expressing your opinion is exactly how you described where someone gives you an 89.4 or a case I had in LA County, LA Community College in LA, where a teacher assigned people,

this is just such a, it's a bad assignment anyway, give a speech on the topic of your choice. Uh, what? And so a student gives a speech on why he became a Christian, which causes the teacher to storm out of the room and then write on his paper, ask God what your grade is. Ooh, clever. Clever. So that's a bad teacher. Okay. You can deal with that. But what we're talking about

are rules that are very broad, very sweeping. That for example, in Tennessee, they've passed this anti-woke bill that is, it's something else. Now, the good thing is it doesn't apply to colleges and universities, but still, it is, for one part of it deals with you're not able to advocate for or against any particular creed, okay? So, in a way, taken literally, a person who's getting to 1930s Germany would say,

I can't tell you Nazism is bad, but here's what I will do. I will just describe to you the tenets of National Socialism. I mean, what are we doing here? What are we doing? And look, I get it. I get it that there are circumstances where people are way, way, way overboard. And that's where things like Title VI come into play. So Title VI prohibits hostile environment racial harassment. harassment. And there are circumstances in which the racial harassment becomes so extreme that it essentially prevents your access to the educational program. And in those circumstances, the law is strong, the law is good, use the law. But I'm really troubled that you now have an entire

movement in the GOP that is essentially saying there are particular ideas which we have very poorly defined in statutes and we're we're going to ban the advocacy of these ideas um again when that comes to like a college professor that's not going to be constitutional when it comes to saying, as for example, the Trump anti-CRT executive order did, like it tried to even reach into what are the kinds of diversity trainings that private contractors of the federal government have for their own employees. Constitutional problems there, and it was actually struck down by a federal court before Biden revoked the guidance. So I'm just very, I'm increasingly troubled by the idea that there is a movement to ban the expression of ideas, to just flat out ban them with very broad language. And thinking back to my K-12 education,

a lot of the most valuable interactions I had were with teachers who advocated a position and I advocated the opposite. And we had a good faith give and take. In fact, looking back on my kids who just graduated high school, that was some of their best classes with teachers who

advocated a position and they had good faith give and take. It is hard to legislate good teaching. That's the problem. Yeah, that's true. That's absolutely true. I just want to defend myself, by the way. I did get a five on the government AP exam. I'm worried that people are listening and thinking maybe she just deserved that 89.4. I just want to advocate for myself that I don't think I did. That's five for those who don't know. That's the best score. In fact, David, I got a five on every AP exam and did not get an A in any of those classes except for chemistry because the teacher changed my grade because of my AP exam. Nice. So that, by the way, was a great teacher,

not because she gave me an A. That was the least amazing part of her by far. But it was chemistry. And talk about a fabulous teacher with a subject that nobody particularly wants to learn, AP chemistry. And she found a way of teaching you how to learn. And the topic just happened to be chemistry. And for every different type of student, she would find that person's internal incentives to get them to perform their best. And so it doesn't matter in theory what topics are being taught in a classroom. When you have a good teacher, they're going to be teaching learning. And when it's a bad teacher, it also won't matter. They won't be teaching that. And so shout out to Ms. Lowry, by the way. Thank you.

And Ms. Healy, who was very similar in that regard. And Ms. Blodgett, some of the best teachers that I had. Now, I do remember at one point that in an argument about the Reagan defense buildup, a teacher did call me a patriotic monkey, which I definitely do not remember 34 years later and bear no ill will at all. This stuff's important. Yeah. All right, David, speaking of really important topics. Yes.

The cicada world has moved into the law world. Are you ready? The cicada world. Okay, please. The intersection of law and cicada. This would be a great law school class. I mean, you know, the fun classes were always like the law and. That's right.

The law and sports. The law and entertainment. The law and cicadas. If there was ever a podcast made for the law and cicadas, this is the podcast. So this is actually in my neck of the woods. A chef in Leesburg began serving cicada tacos at his restaurant. But one customer who ordered them complained to the Loudoun County Health Department, and the health department told him he had to stop serving them. Why? Because, in fact, all food has to be sourced from an approved, a government approved food source. He had obviously, by just picking cicadas, not gotten farmed cicadas.

And therefore, the cicadas had not been inspected and certified, which is required by the Loudoun County Health Department. So he was shut down from serving his cicada tacos. You know what? If we have some lawyers out there who are looking for an interesting case, I don't know. This seems pretty silly to me. His name is chef Tobias Padovano. I'm I'm team chef Padovano here. He, however, has said that he has found an organic farm in West Virginia where he can source the cicadas and is hoping the health department will approve it by Saturday. So the tacos can go back on the menu. The story ends quote,

we are waiting for authorization. Here's my question, though. This farm in West Virginia that has sourced cicadas, aren't they just going out to their farm and picking cicadas off the trees the same as the rest of us? Sarah, there is a fine line between order and anarchy. And I'm beginning to think that unregulated cicada consumption is on the other side. Institute for Justice needs to do something about this. What if there's a beetle instead of a cicada in there, Sarah? What are you going to do about that? What are you going to say to the consuming public? So this morning I was looking out my window and I saw this little starling, you know, going through my yard and picked up a moth

and ate it. And I thought, man, if I were that moth, I'd be so angry. This bird is surrounded by cicadas, like a full buffet. And you pick me, the one moth out here? Come on. Can I just say, still have not seen a single cicada in the wild. Yesterday, I went for a three and a half mile walk with one of my friends along the Georgetown waterfront, like canal. And she hates me now because I had to stop every three feet and pick up every cicada that was in the path for fear of crushing. But I saved a lot of cicadas yesterday, David. A lot of cicada lives.

You must be so proud. I am. I am. All right. So one quick other legal update. We talked at some length last podcast about the DeSantis Florida social media regulation. And just like clockwork, in comes a lawsuit. Net Choice LLC versus Ashley Brooke Moody and her official capacity as Attorney General of the state of Florida.

We'll put this in the show notes. official capacity. The Attorney General of the State of Florida will put this in the show notes. This is the lawsuit filed to block in the United States District Court for the Northern District of Florida to block the social media law passed by the Florida legislature signed by DeSantis. And it's basically the complaint version of our podcast, makes all of the arguments that we've made in our podcast highlighting the constitutional starter pistol of the litigation. It won't be the end of the litigation by any means. So we're going to keep an eye on this. So just putting a pin in it. The battle is joined in Florida and stay tuned. Stay tuned. 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?

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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, last one, David. We've done a lot of law school student email mailbag, but this one was a little different, and I wanted to get your take on it. Okay. This person was accepted to a top-tier law school, paid their deposit, but last week, the school, last week meaning now a couple weeks ago, the school sent out a mass email indicating they had accidentally over-enrolled for the class of 2024,

owing to the ahistorical nature of this cycle. They offered three options. One, continue as normal, understanding that the class will be 25 to 35% larger than normal. Two, sign a non-binding deferral form. You keep your seat and your scholarship for the class of 2025, but you're free to apply to other schools. Three, sign a binding deferral form. You can't apply to any other schools, but whatever your scholarship is goes up by $5,000. What should this student pick? He has a job. He's happy in his job. Not too happy, he says, but he could do it for another year, no problem. What should he do? I was very interested in your assessment of this. Okay, I would just go,

but I would be wrong. Whoa, what? Yeah, so I know myself well enough to know that if I've got something that it's on my to-do list, like I need to go to law school, you know, like I should go to law, I'm going to law school, my goal is to go to law school,

I want to go to law school. The idea of saying, well, you're going to wait a year when I can go now would be intolerable to me, I would just go. However, I do think that deferring my experience of law school, knowing what I now know about law school, is that I think a lot of the students that waited a little bit of time, who did defer, who were a little bit patient, they actually handled law school better as a general rule. They had ingrained work habits that were non-academic. Their life experience wasn't purely academic. And in my experience, they were more chill about the whole thing. They had it channeled. They

looked at it as a job, much less than how I experienced it, particularly the first semester of a super shock of an escalation of schooling, unlike anything I'd ever experienced. So I don't know. I don't think there's really a right or a wrong answer to the extent that I would say, how are you going to set yourself up to succeed in law school better? I think getting a little bit more real- world experience under your belt before you go into law school is probably good. But, you know, I would have heard that experience and heard that perspective and said, yeah,

but I just want to go ahead and become a lawyer. Okay, I'm going. So I found it surprising that they only offered $5,000 not to apply to other schools. Interestingly, look, this is a top tier law school. There aren't a lot of schools above it. But nevertheless, the $5,000 is so small compared to the overall amount that you're going to spend to go to law school. I do not think that should factor in your decision. So I would collapse. No, that's a no-go. Collapse categories two and three.

You're either defer, apply elsewhere if you want, or defer, don't apply elsewhere if you want, or you go. So let's start with that. But then, that's interesting, David, because I think you are right that if you've had a career before law school, you're both better equipped to handle law school.

I think you're also a better lawyer, usually, at least in the short term. You just have more life experience. You bring some other perspective to your cases. You're just older. However, the career of legal does not reward that. You don't move ahead faster in your law firm. The vast majority of them are lockstep. And so you start as a first-year associate with that 24-year-old, whether you're 24 or 34, if you just graduated law school. It's why a lot of people who do have previous careers are going to go to boutique law firms, ones that aren't lockstep so that their previous experience can be rewarded. But if you're going to a top tier law school, you plan to go to a top

tier law firm, there's not a whole lot of benefit to becoming great at your other career because you're going to start at the same place as a 24 year old, which is very frustrating. So I took time off, David, not a ton, but some. I found the whole lockstep thing, that and billing time, the two reasons that I did not go to a big law firm. And that's the same reason for both, which is my competitive advantage was not rewarded. The fact that I had had these other jobs before law school, not rewarded. And the fact that I maybe was a more efficient reader or a faster or produced better briefs was not going to be rewarded. All that was going to be rewarded was the amount of time I spent on the brief or reading and how long ago I graduated law school until you get to the

decision of who makes partner, but that's like 10 years down the road. Who's got time for that nonsense? So I'm going to dissent from that a little bit. I do think it matters. In one sense, you are just at this, where the starting pistol goes off and you're all at the same place, whether you're 25 or you're 30 or whatever.

However, now, and this may not be the case necessarily with the mega firms, like the mega firms where you're not going to have the opportunity to interact with clients that much. You're going to be just sort of tracked into this is your task list and this is what you're going to do. But outside of that world, which is not where not everybody is, that's not where most people are. What I noticed is, so for me, when I started out of law school, I was A, learning how to be a lawyer and B, learning how to be an employee at the same time. So when I say learning, I had worked at Walmart, I'd waited tables, you know, I'd been a greenskeeper at a golf course, cool job, by the way.

And, but being a full-time employee of a, you know, in an office, I was learning how to do all of that at the same time I was learning how to be a lawyer. And then other people were moving into that exact same space with ease and often with an underlying knowledge, not so much of the law, because if you're in commercial litigation, you got to learn the law, and you also have to know the business of your client. And so what a lot of people did is they moved into areas of law that touched on the business that they worked in before they were in law school. And so they had a fluency, they had a confidence. Now, they were learning how to draft a complaint right along with me. But when you have that fluency, when you have that confidence, a big part of being a lawyer is giving your client confidence that they're dealing with a professional, they're not dealing

with a rookie, they're dealing with somebody who knows the subject matter. And so in my experience, the people who had a little bit of that experience were able to move more quickly, inspire more confidence in their clients, adapt more easily to the law firm environment, whereas I had catch-up to do. I had to catch up.

And so I do think that there is an advantage, especially if you go into the kind of law that is related to the business you were in before you became a lawyer. I think there's some advantage there. That makes a difference as far as like in how you're recognized within your firm and how you advance within your firm.

So once again, you get two different pieces of advice from me and David, a future law student. David says, spend another year working at the job you're fine with, but maybe don't love. And I say, go. But I say, I would not as a young aspiring lawyer would not have followed my own advice. Because I would have been, that's great.

I just want to go ahead and get it over with. So, Sarah, you say you also want to talk about an article called Beirut on the Charles. Yeah, just super cool. We mentioned it a few weeks ago. on the Charles. Yeah, just super cool. We mentioned it a few weeks ago and a listener actually has access to archived magazines and sent me the actual magazine that includes the Beirut on the Charles article. It has Magic Johnson on the front. I mean, it's some throwback stuff in this GQ and it's super cool. And our listeners are the best. But then I told you how cool this was and you were like, oh yeah, someone did that for me too.

Yeah, yeah, I'm actually looking at the PDF of it right now. And what I wanna do, I just, you know, I haven't had time to do it. What I would wanna do is it would be interesting to take this article, take excerpts from it, what I would want to do is it would be interesting to take this article, take excerpts from it, put it up, and ask people. Because if you put the excerpts up and say, scandal at Harvard Law School, and then at the very end say, in 1993, you would find it indistinguishable from the stuff that we talk about today,

including own the libs trolling from conservatives, uh, attempts at cancel culture. Um, I'll just read you a, I'll just read you a paragraph from this, Sarah. This is, so, um, this was probably part of the lore of the law school when you were there, but I lived this lore. Did you ever hear about the review-y controversy?

No. You never did? Oh, yeah. So did they still have the review-y, sort of the parody issue of the Harvard Law Review? No, we just had the parody, which was a musical review making fun of specific law students and professors. Yeah, so there might be a reason why you didn't have the parody issue.

Oh, there is, by the way. So I didn't know the name of it, but yes, that was shut down. Yeah, so there's a parody issue of the, of the, uh, so there was a terrible incident that happened before I got there. And that is a, a professor of a different law school who's married to a Harvard law professor was murdered. I don't believe that the murder has ever been solved. It was a horrible, vicious crime right in the middle of Cambridge. It was terrible, terrible. So a couple of years after the murder, a little over a year, there was a parody issue of the review called, you know, called the Reviewy. And here's how it was described.

It contained a good deal of sophomoric, if not pre-adolescent humor at the expense of this murdered professor it called her the rigor mortis professor of law trashed her quote post-mortem legal feminism and fantasized about like her about her sexual practices the article pictured frugue that's the that mary joe frugue was the name of the woman who's murdered gathering with parodies of andrea dworkin and nita nita hill and jennifer flowers for a feminist night on the town blah blah blah i mean it is it was an over the top initially anonymously written article in the revuee intended to be satire of, you know, current feminists, a lot of critical theory, et cetera. Over the top. Bad, bad, bad, bad.

So the place melted down. I mean, the law school melted down. So this is the paragraph I was going to read. Wanted posters went up around the campus for the two authors, encouraging students to retaliate in a way that would really sting by complaining to the federal judges for whom the two would be clerking upon graduation in hopes of sabotaging their careers. Cancel culture? Professor Lawrence Tribe, a possible candidate for Clinton's Supreme Court, invoked the Holocaust in his criticism of their parody, only to be jumped on

by Professor Alan Dershowitz for McCarthyism. So, parody, cancel culture, free speech, the student right-wingers piled on by making, it's the Holocaust, a knee-jerk lament for anything that went wrong on campus, as in, got a parking ticket? It the holocaust trolling um i mean this this is everywhere like this would i mean the the it's it's essentially like a twitter a twitter mob come to real life in response to a lot of trolling which then generated more trolling it was unbelievable and this is just like one of the incidents. And so in this article, and one of the things that I've been saying for a long time is a lot of what you read on Twitter and you think, well, this has never happened before. It's all happened before.

It's all happened before. And this article, I wish we could put the PDF in the show notes. It is something else. And it goes on to talk about a takeover of the administration building, the elevation of what was called the Griswold Nine, which were nine students who were put before an administrative board because their conduct in these takeovers. I mean, Sarah, wow. I thought the best part of the article was the photos that they had.

Man, y'all, that early 90s fashion was no good, really bad. The perms, the shoulder pads, good riddance, I say. Yeah, I had forgotten. I had... My memory of the early 90s did not match these pictures. Y'all thought you were way cooler than that?

I thought we were more fully into the grunge era and more completely out of sort of that big hair 80s hairband era. And it was clearly a transitional period. Yeah. Yeah, it was. It's funny to me because I'm looking at these pictures and I know these

young women are 23 years old basically in these photos, but because of the hairdos and the shoulder pads and i think of people who look like that as being 10 years 20 years older than me like that's i i think they're old even though they're young if that makes sense it's a weird thing about looking at pictures from that era yeah yeah it is fascinating but it is absolutely interesting to watch how a lot of what we think of as completely new stuff, it's same language, same issues, same tactics, same. It's really remarkable. It's a remarkable read. I like this sentence. Unlike most activists, Marino seemed genuinely open to different points of view.

Unlike most activists, I can testify firsthand that that's a correct sentence. Anyway, thank you, listeners. Thank you always, by the way. But this was really fun, and we enjoyed it. And June, man, June is heating up, David. There's a lot coming down here. Well, we keep saying that and not delivering. It's true. But it's going to happen one of these days. It's got to happen. Please, happen soon. We've got so many stored up opinions about these opinions. Just ready to share. It's true.

Alrighty. Well, are we going to end with our new sign off? Yeah, do it. Thanks for listening. Please rate us on Apple podcasts. Please subscribe on Apple podcasts and. Please subscribe on Apple Podcasts

and check out everything on thedispatch.com. And Sarah? Signe dial. Thank you.