Advisory Opinions - Cosby, Wooden, and the Supreme Court's Busy Day

Episode Date: March 8, 2022

On today’s podcast, David and Sarah talk about five, yes, five Supreme Court opinions, including cases involving criminal law, state secrets, and social media moderation. They mainly focus on a fascinating case that asks, when are ten crimes one crime?   Show Notes: -Wooden v. United States -United States v. Tsarnaev -Cameron v. EMW Women’s Surgical Center, P. S. C. -United States v. Zubaydah -Supreme Court Order List Learn more about your ad choices. Visit megaphone.fm/adchoices

You ready? I was born ready. Welcome to the Advisory Opinions Podcast. This is David French with Sarah Isker. And my goodness, we have a packed Supreme Court pod today. We have a case that we talked about before called Wooden that is about the Armed Career Criminal Act. And I promise you, this is a fun discussion. I think we spent half an hour, 45 minutes just talking about all of the ways in which you could approach that case the last time we talked about it.

Then we have Justice Thomas flexing his I don't like Section 230 muscles again in a dissental, which unlike the term concurral, which I coined last week, is an actual word. So we're going to talk about a dissental. We're going to talk about the Supreme Court refusal to hear the Cosby case and a package of Supreme Court cases. And then finally, if we can get through all of that in a decent amount of time, we're going to talk about Kentonji Brown Jackson's most controversial case. And I challenge you to stay awake during our discussion of the difference between cause of action and jurisdiction, which is pivotal to the decision, which also tells you why this is not that controversial of a case. So, Sarah, shall we start with Wooden? I just want to remind people how this starts. So Alon is arguing this case and basically gets the oral version of a law school exam. So I'm going to quote here SCOTUS blog's take on the argument.

This was published in October. If a streetlight is out and a person seizes on the darkness to commit a crime spree, does she commit different crimes on different occasions? Does it matter if instead of the streetlight being out, the night was dark and moonless? What if a multitasking crime boss is ordering different crimes using different phones? If outlaw Jesse James jumps on a train and goes car to car robbing people, does he commit crimes on different occasions? Let's say James's cousin Harry robs multiple people in one train car. Is the result the same? If you are on a crime spree, but take a cigarette break before resuming,

would the crime before and after the break be committed on different occasions? It was so much fun, David. And you and I had a great time talking about all these examples. And by the way, the light being out versus the dark and moonless night, I thought was sort of the most interesting one in some respects, because the argument was if the street light is out, and so everyone who walks by you rob, and so someone walks by, let's say every 15 to 30 minutes, you're taking advantage of the streetlight being out. And so everyone who walks by is simply part and parcel of that singular event, the streetlight being out. But in a dark and moonless night, just every 30 minutes, maybe

an hour later, you rob someone are those different occasions. By the way, as we're about to find out, someone are those different occasions. By the way, as we're about to find out, I don't know that we have the answer to any of those hypotheticals. No. And so Mr. Wooden in question here, he robbed 10 storage units, you know, like a storage unit where you put your stuff in like one of those, you know, four story buildings that's like on a freeway. Usually he and his two buddies robbed 10 of them in one evening. And the question was, they had to break into each storage unit individually. Were those different occasions? Because if so, he will reap the whirlwind in terms of his sentence under the Armed Career Criminal Act. Because what, what, 10 years plus later, a police officer comes to his door, says that it's really chilly, and can

he come inside for a second? And David, what does poor Mr. Wooden do? Out of the goodness of his heart, he lets that police officer stand inside his house to ask him questions. But in doing so, the police officer spots a bunch of guns behind him, knows he's a felon, knows he can't possess weapons.

And so now the question is, was that his second offense or was it his 11th offense? Right. And Justice Kagan, writing for the majority, says it's his second offense. Yes. And the interesting thing about Justice Kagan's opinion is basically the way she talks about this specific fact pattern makes it sort of, I mean, of course, come on. This is just one offense under the ruling, under this idea that when you show up at one occasion and you do six different things while you're at that one occasion, it's still the one occasion. She uses an analogy of a wedding. When you go to a wedding, there's often maybe a cocktail

hour before, or is there at a wedding? I've never had one before like that, but there's certainly their vows. There's a dinner often. There's cake cutting. There's bouquet throwing. There's a bunch of events that take place serially. But at the end of it all, you're not asked, what did you do? You don't say, well, then I saw vows and cake cutting and bouquet throwing and a dinner. They would say, oh, you went to a wedding. It's the one thing. Or if you had a barroom brawl and you hit Bob and Jim and John all in a row, you would say, well, I was in a barroom brawl. And so she basically says under the facts of this case, of course,

of course, in cases like that, easy cases. That's right. Easy cases. Yep. You don't want to be in a situation where somebody can become a, quote, career criminal in 10 minutes or five minutes by hitting a bunch of people or robbing a bunch of things at the same time. But that's not really where it all ended, is it, Sarah?

So as it turns out, I really enjoyed the oral argument because I enjoyed the hypotheticals, very few of which got answered in this opinion, which I'm sure to Elan is a bit frustrating. He's like, well, wait a second. If you can't answer them, why did I have to answer them? Yeah, yeah. He's like, well, wait a second. If you can't answer them, why did I have to answer them? But, David, very interesting opinion division breakup here. I want to start with Justice Gorsuch describing Justice Kagan's opinion. describing Justice Kagan's opinion.

What do we resolve? Justice Gorsuch asks. The court rejects the Sixth Circuit's rule that crimes occurring sequentially always occur on different occasions. Sometimes, the court holds, crimes committed one after another can take place on a single occasion. No one doubts that William Wooden had to break through wall after wall, dividing 10 separate storage units to complete his crimes, or that by the end of it all, he committed 10 distinct criminal offenses. But the court explains none of this automatically dictates the conclusion that his crimes occurred on different occasions. Beyond that clear holding, however, lies much uncertainty. Rather than simply observe that sequential crimes can occur on one occasion and return this case to the Court of Appeals for resolution, the court ventures further.

It directs lower courts faced with future occasions clause cases to employ a multi-factored balancing test in which a range of circumstances may be relevant. The potentially relevant factors turn out to be many and disparate. The court says the offenses committed close in time often, but not always, take place on a single occasion. Offenses separated by substantial gaps in time or significant intervening events usually occur on separate occasions, though what counts as a substantial gap or significant event remains unexplained. Proximity of location can be important too, but is not necessarily dispositive. Whether the defendant's crime involved similar or intertwined conduct also may or may not make

a difference. And even this long list of factors probably is not exclusive. Now, Justice Kagan answers that in a footnote in her majority, but it's important to read that part before you get to her footnote, hence my order of operations here. Footnote four, Justice Gorsuch asserts that a multi-factor test provides too little guidance, including in this very case. But to begin with, we did not choose the test. Congress did. Boom. By directing an inquiry into whether prior offenses were committed on occasions different from one another, Congress required consideration of the varied factors that may define an occasion. And while the test Congress chose will produce some hard cases, Wooden's is not one of them. I agree with both mom and dad here, right? Justice Gorsuch is right that part of the reason to take this case in the first place was all those hypotheticals that were raised a reason. And this provided little to no guidance in future cases like this. I mean, we don't even really get to like, would an intervening cigarette break break up the occasions if Wooden had taken a cigarette break, for instance?

And that's where I think Gorsuch saying, let's send this back for fact finding on the occasion thing is interesting. this back for fact-finding on the occasion thing is interesting. But of course, that's not what makes this fun in the lineup here. So let me just read you. Kagan delivered the opinion of the court. Chief Justice Roberts, Breyer, Sotomayor, and Kavanaugh joined. Thomas Alito and Barrett joined as do all but Part 2B. Doesn't matter for our purposes. Sotomayor concurred. Kavanaugh concurred. Barrett and Thomas

had a concurring in part and concurring in the judgment. And Gorsuch had a concurring in the judgment that Sotomayor joined as to 2, three, and four. Okay. So quite.

Wait, is anyone charting that at home? That's right. If you chart that at home, send us a picture of it, and it'll look like the conspiracy yarn wall in like Horrible Bosses 1 or 2. I forget which one it was. It's that gif now. But anyway. Didn't Memento also have like a good yarn thing yarn wall and like horrible bosses one or two i forget which one it was it's that gif now but anyway memento also have like a good yarn thing where he was trying to piece together the memories

anyway um you'll notice no dissents right the only question is who agrees with whose reasoning as to why this is a single occurrence i want to focus on cavanaugh and gorsuch because this is an interesting conversation that's occurring much broader than the Armed Career Criminal Act, Mr. Wooden, or even the Occasions Clause. So Gorsuch really kicks this all off. And it's why it's interesting. Gorsuch's concurrence comes at the end because they're going to get printed in this seniority-ish versus who's agreeing the most in the way that these get printed. But if you go read them all, Gorsuch's concurrence is the one that kicks off a lot of these others. So I'm going to start with Gorsuch.

Gorsuch's point is that there used to be, and still is to some extent, a thing called the rule of lenity. And the rule of lenity, as he says, is a new name for an old idea. The notion that penal laws should be construed strictly against the government. So he gives this example back in the day where a sailor is charged with murdering someone on like a river in China. And the statute in question was for murdering someone on the high seas. Right. And even though the reason for the statute quite clearly, I guess was, was meant to encompass a sailor just killing a foreign person while they're on their boat.

It said high seas and a river isn't the high seas. And so the rule of lenity was put in place to mean, yeah, look, it's going to be strictly construed. That thing says high seas. This was a river. Sorry. Defendant wins. The point being not that that sailor in question, of course, had read the statute and was like, aha, I can't kill him on the high seas. I'll wait till I'm on a river. But that you shouldn't be expanding criminal statutes, basically. It's up to Congress to do that. And, you know, the tie goes to the runner.

And in this case, the runner is the criminal defendant. And so Gorsuch says that this, the occasion clause should actually be construed with the rule of lenity in mind. And particularly with Mr. Wooden, this would turn out with the occasion clause, should actually be construed with the rule of lenity in mind. And particularly with Mr. Wooden, this would turn out with the same outcome, but with a much clearer, he argues, instruction to lower courts. That if it's not clearly different occasions, then put in the rule of lenity. And if Congress wants to change that, so be it. And Justice Sotomayor

joins that part of his opinion, And we're going to get to why I find that particularly fascinating when we get to our bundle later, David. But noting here, Justice Sotomayor is the only one who joins him in that definition of the rule of lenity. Justice Kavanaugh, though, has his own interesting, I you but right um so the rule of lenity since 1974 so really recent like the rule of lenity goes way way back this is like blackstone stuff for rule of lenity but basically since 1974 the rule of lenity has meant that the statute in question has to have grievous ambiguity. And here, Justice Kavanaugh is arguing like the occasion clause isn't grievously ambiguous. It's just that when you apply the facts, sometimes that's going to be hard. He says, though,

that he agrees with Justice Gorsuch's point. He just thinks that that point is better raised under mens rea, David, and not this rule of lenity. So they're heading the same direction, but Justice Kavanaugh wants it to be a mens rea test. Justice Gorsuch wants it to be a lenity test. But this is why I say it's really important for future criminal law cases. Both of them want a thumb on the scale for criminal defendants, a la Justice Scalia. And we talked a lot about how post-Scalia, where criminal law was going to go. It was pretty clear early on that Justice Gorsuch was going to pick up the Scalia mantle. But I find it very interesting

that you have Justice Kavanaugh waving the flag like, me too, but I think it should be Menzreha. Now, David, little Menzrea cul-de-sac here for those who've watched legally blonde and who hasn't really i mean who hasn't there was um malum prohibitum and malum uh in say one was like having you know you knew it was wrong guilty mind and one was just wrong because we said it was wrong, like a speed limit, for instance, running a stop sign. And Justice Kavanaugh's point is, if you don't have the intention of committing different crimes on different occasions, you don't have the requisite mens rea to violate the Armed Career Criminals Act. And that's how we should be doing this, not just lenity, which needs that ambiguity,

whether it's grievous or not, because different occasions isn't ambiguous. It's just ambiguous when applied to specific facts, whereas the mens rea test would get closer to what he thinks Justice Gorsuch is going for. David, who has the better argument? I found myself, gosh, I would say I found myself as a practical matter convinced more by Kavanaugh. I liked the concept that Gorsuch was talking about as a conceptual matter. It was more interesting. But as Kavanaugh points out, this sort of rule of lenity is kind of just been dormant for a really long time. But at the final analysis here, although I thought Gorsuch's opinion was sharp and interesting,

hadn't thought about the rule of lenity in a really long time, I found myself wondering, where are we really at the end of the day with this case? And I found myself just going back to the very first sections of the Kagan opinion. And I feel like rather than there being actually some sort of multi-factor balancing test or rather than a rule of lenity or rather than a mens rea, I feel like she just went ahead and imposed what would a reporter say test. She says, consider first how an ordinary person, notice this aside, a reporter, a police officer, yes, even a lawyer might describe

Wooden's 10 burglaries and how she would not. And at the end of the day, I felt like cutting through all of the lenity, all of the mens rea, all of the balancing, that's where we ultimately landed with this sort of, come on, let's be ordinary people for a minute, which isn't really a judicial rule it's so much like a obscenity standard from the you know the 70s of you know it when you see it and that's where i feel like and this is why i think thought your your points here about wait a minute this isn't a court of appeals. This is a Supreme Court. And this says, this case is so obvious that even a reporter or a police officer, everyone who would describe this would describe this as one occasion.

And I feel like that's basically the only rule we're actually left with. And I'm not sure that's much of a rule, to be honest. And the thing I liked about both the Kavanaugh and the Gorsuch exchange is that leaves us with something, and the opinion of the court leaves us with not much at all. That's right. Yeah. I mean, let me just read Justice Kavanaugh's, one of his paragraphs. He says, in sum, I would not invite the inconsistency, unpredictability, and unfairness that would result from expanding the rule of lenity beyond its very limited place in the court's case law. I would, however, continue to vigorously apply and, where

appropriate, extend mens rea requirements, which, as Justice Robert Jackson remarked, are, quote, as universal and persistent in mature legal systems of law, as belief in freedom of the human will and a consequent ability and duty of the normal individual to choose between good and evil, which is only kind of interesting because like we have some neuroscience that's kind of eroding that. But love me some Justice Jackson, nevertheless. his point is, a federal criminal statute does not contain a will, if a federal criminal statute does not contain a willfulness requirement, and if a defendant is prosecuted for violating a legal prohibition or requirement that the defendant

honestly was unaware of and reasonably may not have anticipated, unfairness can result because of a lack of fair notice. That result could arise with some malum prohibitum federal crimes, for example. But when that fair notice problem arises, one solution where appropriate could be to require proof that the defendant was aware that his conduct was unlawful. Alternatively, another solution could be to allow a mistake of law defense in certain circumstances consistent with the longstanding legal principles that an act is not culpable unless the mind is guilty. Again, this goes far beyond the occasions clause, which we will now have to litigate again at the Supreme Court because the wooden case- Yeah, it's coming again.

Was too easy as it turned out. But I think seeing where Sotomayor gorsuch kavanaugh are i think that's where these things are headed now whether it's going to be lenity or mens rea i'm with you david i think that the mens rea extension will actually work out to be stronger than the lenity extension you might want to just combine the two in some circumstances because i take gorsuch's point on the occasions clause in particular but kavanaugh's mens rea point is much broader than i think the lenity argument would take you and so yeah um congratulations criminal defendants you have two advocates on the supreme court right now. And as we'll talk about a little later, maybe a third coming as the first public defender will take the bench in the fall. Yeah, I think the mens rea test is just it makes more sense.

Although who doesn't love a good poll from 1820? So true. And yeah, and I have been corrected in real time by legendary producer Caleb. The gif with all of the yarn and the pictures and everything. Yeah, isn't that from Always Sunny? It's from Always Sunny. Yeah, okay.

I didn't want to be the one, but like it was clearly Always Sunny. Yeah, which I've never seen one second of. You just like the GIF. But isn't the guy in Horrible Bosses? Yes. Okay. Charlie.

All right, so I have some slight, I can hold on to some slight pop culture pride, but yeah, it was always sunny, not horrible bosses, real-time correction, very valuable. Shall we move on to our Dissental? Yes.

Sarah, by Clarence Thomas. And before we get to the substance of said dissental, why don't you tell the folks why dissental is a real word and my favorite word, concurral, that I apparently made up without even being aware of it last podcast is not. Well, so look, in April of 2012, Alex Kaczynski and James Burnham, Alex Kaczynski is who my husband clerked for, and James Burnham and I have worked together several times. April 2012, op-ed, I say dissental, you say concurl. So, David, you accidentally reinvented a word that already existed. But generally speaking, the word dissental is more commonly accepted, I think, than can curl. So after losing an en banc vote back in 1960, Judge Clark penned a dissental, mildly chiding the Second Circuit for having

failed to take the case in Bonk. Judge Friendly took umbrage, imputing the legitimacy of a practice that enabled an active judge to publish a dissent from any decision, although he did not participate in it, and the court has declined to review it on Bonk, yada yada. Their point being that dissentals have spread far and wide. They have a count here just from the Ninth Circuit. 45 judges have filed some 290 dissentals in over 230 cases in the Ninth Circuit. Hundreds more dissentals have been filed

in the courts of appeals nationwide. Some judges are so dissental happy, they file two in the same case. They've got a footnote for that one. Dissentals often generate heated debate, they note. But concurrals are there, David. Concurrals are there. Chief Judge Easterbrook's concurral was nominated for the 2011 Green Bag Exemplary Legal Writing Contest under the category opinion for the court rather than under concurrences, dissents, et cetera. So what you're saying, Sarah, is that my ancient and learned legal mind

subconsciously pulled what would be, I guess, outdated legal language and brought it back current in 2022. Congratulations. Yeah. Yeah, thank you. Thank you. So I stand uncorrected or decorrected. Baller Conspiracy notes in 2011 that these are new terms, specifically referring to dissent from denial of rehearing en banc

and concurrence in denial. So a little different than you were using it. But at the Supreme Court, I think you can import it on statement on denial of cert and statement dissenting from the denial of cert, which is how you were using it. Because I think, David, that this hasn't really been discussed much since 2011 and 2012. Judge Kaczynski obviously off the bench now. And so we should bring back dissental and concurral, but we should expand it to the Supreme Court. So at the lower court, of course, it would refer to en banc. But at the Supreme Court, it would refer to cert grants. But at the Supreme Court, it would refer to cert grants. And so, David, that was a very long-winded way to say, today we have a dissental from Justice Thomas.

Yes. Yes. And still the more troubling factor in concurral gate is that I was saying concurral while thinking I was saying concurrent. So that's still the trouble. But anyway, let's go to Justice Thomas. so justice thomas a long time listeners will remember this uh justice thomas has been saying a few things um through his dissents from denial of certs for through his dissentals where it's pretty clear he is not down with current case law involving social media and Section 230. You down with current case law? OOPP? No, okay. Maybe not. Normally, I say keep singing, but not today.

It doesn't work. It didn't work. And so in the previous case, he was saying, look, Section 230 and the environment, the law of free speech surrounding or the law restricting the ability of government to regulate speech on social media platforms is not satisfactory to Thomas. And he sort of openly mused about, could these be common carriers? Could these be public accommodations? By these, I mean, big social media companies. So it's pretty clear he's not in love with where Section 230 case law is right now. This case is a very dark and bad case, and it raises a part of social media moderation and liability, et cetera, that is different from the issues that tend to make Twitter angry. Moderating someone because they said something

that's offensive or moderating someone because of vague and overbroad hate speech prohibitions. This is something else. This is the use of social media to facilitate the commission of a terrible crime. And so this is the background of it. In 2012, an adult male sexual predator used Facebook to lure 15-year-old Jane Doe to a meeting, shortly after which she was repeatedly raped, beaten, and trafficked for sex. Doe eventually escaped and sued Facebook and Texas state court, alleging that Facebook had violated Texas's anti-sex trafficking statute

and committed various common law offenses. Facebook petitioned the Supreme Court, Texas Supreme Court, for a writ of mandamus dismissing Doe's suit. The court held that a provision of the Communications Decency Act known as Section 230 bars Doe's common law claims but not her statutory sex trafficking claim. Now, for those who don't remember, Section 230 is that part of the Communications Decency Act that provides that, and I'm quoting part of it here, no provider or user of an interactive computer service shall be here, no provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provided. This is in plain English, what makes Twitter not liable or Facebook

not liable. If I say something unlawful about Sarah or legendary producer Caleb, then they have recourse against me, but not against Facebook simply because I used Facebook to be the medium for transmitting my words. Now what's interesting here is, you know, Thomas doesn't really specify what these common law claims here are here, but he kind of talks about it a bit.

He says, as relevant here, this expansive understanding of publisher immunity, the one I just walked through, requires dismissal of claims against internet companies for failing to warn consumers of product defects or failing to take reasonable steps to, quote, protect their users from the malicious or objectionable activity of other users. This is interesting, Sarah. This is interesting. Failure to warn is a classic product liability doctrine. That's why you always see, you know, you might have a coffee

cup and it will say, warning, contents are hot. Okay. Why is that there? Well, one of the reasons it might be there is because of a case down the line where someone spilled the coffee, burned themselves and said, I didn't know this was going to be that hot. So failure to warn is a product liability doctrine. I just want to point out that in college, it was right after that case, that famous McDonald's case. And so warning contents hot was on every cup then. And so my sorority printed t-shirts that said that. It's important to note. Now, the interesting thing about this case,

it's one of the reasons why a podcast like Advisory Opinions needed to be created. Because the media coverage, I don't know if you remember the media coverage of the case. It was, this is horrible. This is Snowflake Nation before anyone knew what Snowflake Nation was. We can't even know. She was vilified. This woman was totally vilified. Vilified for filing suit over spilling the coffee. And then you actually figured out what happened in the case. And she was horribly burned. She was dramatically injured by this coffee.

And more to the point, McDonald's was intentionally heating their coffee far beyond what they knew to be safe because they thought it was in their consumers' interest to have hotter coffee that would then cool down over time. They understood the risks and they accepted them by serving coffee that they knew

was way, way, way too hot. It was all an intentional business decision. And that's what gave rise then to the claim, not that just she poured normal hot coffee on herself, but that McDonald's had chosen to make their coffee that hot. And so what we are doing right now on advisory opinions is retroactively, we are retroactively providing public justice to this poor woman who first was victimized by coffee and then victimized

by the court of public opinion when she was truly a victim the whole time she got a lot of money david though she won well that's true she did she did get she doesn't need our justice okay that's true that's true she's probably sitting courtside next to me at the grizzlies game but i think that um so technically this is a concurral actually, David, like it's a concurrence and the denial of cert because, and even though he's dissenting in a lot of ways, he acknowledges that procedurally this case isn't actually ripe yet, which we talked about last week too, right? These, the Supreme court, you need to have that perfect procedural pristine vehicle, and this is not it. But I think he's raising some really good points about ways to limit Section 230 that, A, I think he could get some other votes on in the

court potentially. B, it limits 230 without raising, I think, David, any of the free speech concerns, media concerns that people have about keeping Section 230. And three, it limits Section 230 totally within Section 230's text. I find Justice Thomas's argument that this is actually a wild expansion beyond the text of Section 230 to be, if not like totally persuasive, I'm not there. I'm not joining an opinion yet. Certainly worth exploring with some oral argument in a better vehicle case. The line that particularly was persuasive to me, and again, this is, you know, Facebook being used for sex trafficking, something that Facebook knows that its system is used for. He says the Texas Supreme Court afforded publisher

immunity, even though Facebook allegedly, quote, knows its system facilitates human trafficking and identifying and cultivating victims, but has nonetheless failed to take any reasonable steps to mitigate the use of Facebook by human traffickers because doing so would cost the company users and the advertising revenue those users generate. And that, since, David, that sounds a lot like McDonald's being warned multiple times about their coffee being too hot and choosing to increase the temperature of the coffee for a consumer purpose, for business advantage, then, yeah, you can get sued when that decision turns out to be a bad one. In this case, he says it is hard to see why the protection to 30 grants publishers against being held strictly liable for third parties content

should protect Facebook from liability for its own acts and omissions. And David, look, I think that quote from the Texas Supreme Court is a little misleading. Facebook spends millions of dollars trying to get human traffickers off its site. But as with all tort law, it's BPL, right? It's burden equals probability times loss. Facebook has maximized how much they're willing to spend getting human traffickers off by the amount of loss they think they will suffer. off, uh, by the amount of loss they think they will suffer. Um, and that that's the burden, right? It's risk. Um, the P probability times loss equals how much you spend. And so in that sense, yeah, this isn't about, um, Facebook being liable when David says that Caleb's girlfriend is a mole when she is in fact non-existent. But rather. Oh my gosh, that's horrible. Oh, burn. Okay. Oh, that's horrible. And what,

a mole in what sense? Like a mole in espionage sense? Oh no, I've been watching a lot of Peppa Pig. So I meant literally like Molly Mole, who's a mole. She's actually the cutest of all the Peppa Pig characters. She's my favorite. That's why I picked her. But yeah, so yeah, Facebook isn't liable when David says something defamatory against Caleb. That was the purpose of Section 230. Obviously, we talked about this, but Section 230 is pre-internet. But the idea that it would give, you know, in this case, in the original Section 230 understanding, You know, in this case, in the original Section 230 understanding, the New York Times, you know, not being held strictly liable when in its classified ads, it says, you know, come here for sex trafficking. That that seems outside at least the the most strict purpose of Section 230 that you'd be expanding Section 230 to get to the classified ads, for instance. And so perhaps, again, Facebook being held liable for its own business decision of how much money it's going to put in to take sex traffickers off its website, knowing that it's not keeping all sex traffickers off its website and therefore accepting that some people will be sex trafficked through Facebook's own business decisions seems to me to be a very worthy

Section 230 conversation. It is a very worthy conversation and it brings up a couple of things. One, I'm glad you mentioned that this was when it says that Facebook allegedly knows its system facilitates human traffickers and identifying and cultivating victims, but has nonetheless failed to take any reasonable steps to mitigate the use of Facebook by human traffickers. There's an allegedly there. They do. It's a big allegedly. Yeah, that's a big allegedly. They do spend an awful lot of money to try to mitigate this problem.

But as you said, that doesn't end the inquiry on liability in the absence of 230. But the thing that I'm actually more interested in about this case is that if you're talking about the universe of Section 230 reform advocates, I think of them as generally in kind of two buckets. And one bucket gets 95% of the attention, and the other bucket gets about 5% of the attention. And in justice and reality, I think they should be switched. So the part that gets 95% of the attention is the part that says, when can various political actors be booted from this website because they have offended hate speech or whatever content moderation guidelines? That gets all the headlines.

That's, should Donald Trump be back on Twitter? Should Donald Trump be back on Facebook? What about Alex Jones being knocked off of Facebook? These are all very high profile, large platform celebrities or politicians who lose their social media voice on any given platform. And that's where all of the energy is. This is when you hear about what quote unquote big tech tyranny. This is all that energy is poured into this. But then there's this whole other category of people who are jumping up and down and saying section two 30 needs reform. And that is victims, people who have been victimized by actual criminals through the use of social media platforms,

whether it's, um, sex offenders being on dating apps, for example, whether it's, um, people who have been, uh, there's been revenge porn posted or you name it, people who have been victimized by actual illegal acts where communication through the social media platform was an indispensable element of the criminal activity. was an indispensable element of the criminal activity. And that's an area, it feels to me,

where there is much more room for reform constitutionally and also in a way that deals with people protecting people's concretely protected legal rights. In other words, you have legally protected interests against being victimized by criminals. That has an area where it seems like there's a lot more room for legal reform than this really hazy, I don't like how this private company regulated my speech on their own platform that I'm using for free, which is where 95% of the attention is, as opposed to 5% of the attention on cases like this, where somebody's actually suffered a massive, concrete violation of their legally protected interests and rights that was facilitated

through the platform. I think that's a, it's a different, something different in nature. Lots of advocates are out there trying to do something about it and they get a fraction of the attention. 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. So David, let's move to our next category topic that will make us very unpopular. Oh, good. Okay. I need more of that. I need more unpopularity. Let's go. I think so. So if you remember, it's been a while now, but we talked about extensively after the Cosby verdict was thrown out by the Pennsylvania Supreme Court. And we said, look,

the headlines are awful. I know you don't like the Cosby's getting out of jail, but let us tell you what the prosecutor actually did in this case. And we think you're going to change your mind. And even if you don't, Cosby is going to win on appeal. And today, the Supreme Court denied cert on hearing that again, which means that the Cosby appeal, Cosby staying out of jail, stays. The question that was presented, by the way, was where a prosecutor publicly announces that he will not file criminal charges based on lack of evidence, does the due process clause of the 14th Amendment transform that announcement into a binding promise that no charges will ever be filed, a promise that the target may rely on as if it were a grant of immunity. That was, of course, filed by the district attorney's office, and the answer appears to be

no. Under the unique facts of this case, the Pennsylvania Supreme Court concluded, this is from Cosby's lawyer, concluded that the former district attorney had made an unconditional promise of non-prosecution. The Cosby relied on that promise to his detriment, namely foregoing his Fifth Amendment guarantees and testifying at four days of depositions. And that is a matter of fundamental fairness. That promise should be enforced. And David, we talked about that.

The purpose of the grant of immunity was so that in the civil case, he couldn't invoke his Fifth Amendment rights. He then didn't invoke his Fifth Amendment rights, which I'm not sure he would have been able to regardless. And if he had tried to, they would have said, no, you have immunity. You have to testify. Detrimental reliance, this one is an easy, easy case. And look, we can second guess and say that it was a big screw up by the prosecutor. There were certainly other things that could make you think that that prosecutor did not act in the best interest of the Commonwealth of Pennsylvania, but it's not as clear cut. If you're in that moment,

they don't have the evidence that they ended up with later. And instead he thinks that one of these victims can collect civilly, even if he can't prosecute him, but in order to collect civilly, she's going to need his deposition. So so he's like i can help with that i can help you get his deposition and force him to testify and he did he did she did you know is what it is that's how the law works yeah yeah i thought this was and we talked about it at length very clear-cut um prosecutor promises not to prosecute the promise not to prosecute cosby's attorneys believe at the time he has no grounds at that point to invoke the fifth amendment privilege so he doesn't invoke it incriminates himself and then is prosecuted by another prosecutor um man you talk about bad facts for a prosecution.

They were terrible facts. Oh, one thing real quick before we move on to the next topic. We should always do this whenever we talk about Facebook. But disclosure, the dispatch is a Facebook fact checker. So whenever we talk about Facebook, we should disclose that. But yeah, I mean, I think this was an inevitable... Though David and I are completely walled off from that entirely. Yeah, exactly.

We're walled off. But yeah, so yeah, this was inevitable with Cosby. It's horrible. It's terrible. Don't know what else to say. Don't know what other words to say to describe the sort of lack of ultimate justice done here,

but these rules exist. The rule of law won. Yeah. Even if justice in the specific case didn't, justice overall did. And that can be very frustrating at times, but it's important for our system of justice. Yeah. I mean, this is fundamental to due process, but yeah. All right.

You have a package. My package of cases. It's a package. So the Supreme Court handed down opinions on Friday, well, Thursday and Friday. And we got three opinions that I just think are worth a quick mention because there's a through line that I want to talk about here. So in the Tsarnaev case, this is the death penalty for one of the Boston bombers. dissented from reinstating the death penalty. I'll note though that Kagan and Sotomayor dissented joined in Breyer's opinion in all but one part, David. And that one part only had two sentences. And I want to read the two sentences that Sotomayor and Kagan did not join. I have written elsewhere about the problems inherent in a system that allows for the imposition of the death penalty. This case provides just one more example of some of those problems. Justice Breyer saying that he would revisit the death penalty itself under the Eighth Amendment,

not joined by Kagan and Sotomayor. Fascinating. All right. Then my second package is the Kentucky intervention case. This is where the secretary of health was defending an abortion restriction in Kentucky. New administration comes in, Democratic governor, Democratic secretary of health. When they lose at the circuit court, the secretary of health says they're not going to appeal this any further. The attorney general who is separately elected and a Republican says, ah, then I'll intervene and I'll defend the law. The sixth circuit says, no, thank you. It gets that intervention decision gets appealed to the Supreme court. Supreme court says, yes, the Kentucky Attorney General can intervene. It's 8-1.

Kagan and Breyer write separately, concurring in the judgment. Their argument, by the way, is just that, look, there was no bad faith here. He tried to intervene as soon as he realized that they weren't going to do it. So this wasn't a way to get around the timeliness of filing your appeal, which is 30 days, because in this case, he filed two days after he was told the secretary of health wasn't appealing. Let's just make this a very narrow intervention, good faith look. And in this case, he would win on that. Sotomayor dissenting. went on that. Sotomayor dissenting. Sotomayor saying, actually, look, we need finality, more finality in these types of cases, especially these types of cases.

And they, you know, originally there was an agreement from the attorney general's office to let the secretary of health litigate this case. And so the attorney general voluntarily removed himself from the case. Then there's a new secretary of health. That secretary of health decides on a different litigation strategy, i.e. not litigating it. And now the attorney general wants back in. Her point is, you made a decision. You knew there was a chance that that person could change. They could change litigation strategies. We should hold you to that decision. It'd be different if, you know, you were never allowed in in the first place or something else.

I found actually, even though it was 8-1, I found the dissent fairly persuasive in that sense. I do think finality is an important feature of the rule of law, and she makes some excellent points. And this takes me, David, to my final one, Zubediah. This is one of our post 9-11 war on terror black site torture cases about a CIA black site that allegedly is in

Poland. And I say allegedly kind of in quotation marks because it has been publicly reported everywhere, but technically not confirmed by the U.S. government. And the question was, could he compel testimony by two former CIA officers or people related to the CIA? Or could the government say this was still state secrets, even if it had been publicly reported? Breyer writes the opinion. Kagan concurs in part and dissents in part. Sotomayor and Gorsuch dissent together. And the Gorsuch-Sotomayor, Gorsuch actually writes the dissent, Sotomayor joins it. The Gorsuch-Sotomayor dissent is going to be the thing that is remembered in this case long after the majority opinion. And basically Gorsuch and Sotomayor saying, are you kidding me with this nonsense? Let's use common sense here. And here I'll read from it. There comes a point where we

should not be ignorant as judges of what we know to be true as citizens. This case takes us well past that point. Zubediah seeks information about his torture at the hands of the CIA. that point. Zubediah seeks information about his torture at the hands of the CIA. The events in question took place two decades ago. They have long been declassified. Official reports have been published, books written, and movies made about them. Still, the government seeks to have this suit dismissed on the ground it implicates a state secret, and today the court acquiesces in that request. Ending this suit may shield the government from some further modest measure of embarrassment, but respectfully, we should not pretend it will safeguard any secret. So David, why do I package these cases together? Yes. And by the way, I want to-

You have told me from the beginning, you've got a package. I don't know the package. And I'm going to bring back in Wooden, by the way, because if you remember in Wooden, we have the Lenity concurrence from Gorsuch and Sotomayor as well. is different strategies, I think, for how to exert that power, who their allies are, who they think they can pick off, and how to be a justice on the Supreme Court when it's 6-3, and I'm putting that very much in quotes, or when, according to me, it's 3-3-3, and you've got these institutionalists that you can make institutional arguments for or otherwise. And so I think it's very interesting, the track that Sotomayor's on. And it is worth mentioning, by the way. Remember, David, the mask dust-up, where Gorsuch shows up without a mask to argument.

Sotomayor doesn't show up to the argument. Those are literally the only facts we know. And, you know, a thousand trees were killed, attributing motives to everyone involved. I just find it very fascinating that Gorsuch and Sotomayor now very much on the same team in Zubediah, a state secrets case, on the same team in the Wooden case, a criminal defendant case. Hmm. Hmm, I say. Either this whole statement that they put out jointly about how they were really friends, maybe people shouldn't have been so quick to assume that was false. Or maybe, David, just maybe that kerfuffle actually brought them closer together or it had no effect whatsoever. But I'll just note that like sometimes when you when outside people try to assume they know a whole lot about two people's relationship, that maybe they don't know so much after all. And nor shall we on this podcast pretend to except to note that they seem to be doing just fine.

Shelby on this podcast pretend to, except to note that they seem to be doing just fine. Kagan, interesting path, right? Not joining with Sotomayor, not joining the part about the death penalty, agreeing on the Kentucky intervention case, agreeing and dissenting in Breyer's opinion on the state secrets. I think as we think about a new justice joining the court, it makes this package of cases, Wood and Zubediah, Cameron and Tsarnaev, worth bucketing to revisit when Justice Jackson joins to see where she'll fall in all of this, and whether we're going to continue to see the three not necessarily always lining up, not because they don't agree probably in some fundamental respects, but from a strategic decision point. Yeah. No, that's a very interesting,

that's an interesting linkage. And I just have one observation about the, about your package of cases. Well, really a one observation about Tsarnaev. So not about the package about Tsarnaev. So here we have this, this Breyer statement I've written elsewhere about the problems inherent in a system that allows for the imposition of the death penalty. This case provides just one more example of some of those problems. So not only did Kagan and Sotomayor not join in that they specifically did not join in that and this is relevant for a lot of debates and discussions that we have had for some time about Justice Barrett she doesn't join in it either now why is that important well because one of the arguments made when she was nominated was that this person is a religious

zealot. In other words, that her religious beliefs about life, which include death penalty, are going to improperly influence her ability to interpret the Constitution. interpret the Constitution. And so I just wanted to note here that what Breyer does is he lays out a sort of a gift wrap present for somebody to say, me too, I have a problem in here and in the system allows for the imposition of the death penalty. And she didn't take it. Now, that's no surprise to anybody who's followed her jurisprudence. That shouldn't be a surprise to anybody, but it is actually a refutation for those people who say a person who's a devout Catholic or who has devout religious beliefs, they cannot adjudicate according to

the rule of law under our system because their religious beliefs are going to be distorting their role as a judge on the court. That doesn't mean that a person's religious beliefs don't, for example, Justice Barrett having a commitment, a Christian commitment to tell the truth. That's one that we would want to see in a public official, how their faith influences them. But one of the questions is, if you have a role in our constitutional system where you're going to have to make a ruling according to the rule of law in that system that results in an outcome that you might find morally repugnant under your faith system, is that something that you can do? This is a question that has been asked, not just about Justice Barrett, but a host of judges who have pretty

openly expressed religious faith. And I just think it's interesting. I just wanted to throw it out there for those people who say that Justice Barrett's Catholic faith is going to mean that we can predict how she's going to rule. And it's based on what, you know, the teachings of the Catholic church and not the constitution. Just an interesting little point to point out. So do we have time? We're never, we're never getting to Justice Jackson's sole and unreviewable opinion. It's never going to happen. It's going to be like a joke.

It's never going to happen. Yeah. Yeah. Yeah, because we have to cut it off a little before. We're increasingly getting to a normal hour 20. I know. We need to stop. We need to stop.

Yeah, exactly. Okay. So I think today's the day. We'll get to it. We need to stop. We need to stop. Yeah, exactly. So I think today's the day. We'll get to it. We still have time. We will. March 21st is our drop dead date. We have to do it before then. Yeah, it has to happen before then. And I just apologized to all of y'all who had already gotten out some notepaper to take notes on the distinction between cause of action and jurisdiction. Because I know you've been thinking about this for a while. And yeah, so. We need to dedicate a whole pod to cause of action versus jurisdiction. I mean, law review articles have been based on far less.

It's true. That's true. That's true. Although if we're starting to dictate our topics by what law reviews have been written, law review articles have been written about, we'll just go ahead and watch our listenership just plummet. We're bringing sexy back, David. We're bringing cause of action versus jurisdiction back. We're going to make it sexy when we do it. But David, you were sitting front row at the Grizzlies game and you actually Googled the price of someone's jeans? Oh my gosh. Now you can't say that publicly.

Well, he's not listening. He's not listening. Okay. So one of the fascinating things about going to courtside at a basketball game is the people watching um and so there was just this family that came in and one of the guys it was a father son trip down to memphis so much fun um you know we were six feet from the action it was incredible one of the great things about living near a small market team is when a bad team is in town in the Orlando Magic sorry Magic fans a very bad team you can often get tickets surprisingly cheap which we did but anyway one of the son one of our our sons noticed these guys a family in front of us are dressed head to toe in total designer clothing

total design and so it led to an argument amongst them as to what was the total dollar value of the clothing worn and it led to the discovery that there are in there is in fact a six thousand dollar pair of jeans available on the market. I don't even know where one buys a $6,000 pair of jeans or what they do for you or at the age in which you are capable of buying a $6,000 pair of jeans. Is that really the best investment, David? I don't think the point is an investment. I'm not in the financial category

where I can fling $6,000 at a pair of jeans. So I don't know about the $6,000 pair of jean market. If you wear them for two years and they're a well-worn pair of 6,000s, do they suddenly become worth 8,000? No, I doubt it. I doubt it. I can tell you this, David.

I don't remember the price of my wedding dress, but it was three digits. So at least one sixth less than those jeans. Well, you have something in common with Nancy. She had a three digit wedding dress as well. And it's beautiful. It's beautiful. Yeah. My memory is it was like relatively, you know, mid three digits too. I don't remember it being very high in the three digits. But you know what I did not know until my son started getting into, into sneak, what they call sneakers now, but I used to call all, everything was tennis shoes. Yeah, same. Yeah.

So what they call sneakers. Did you know how expensive some of these things are? Yeah. Those actually are generally like collectibles. Like people take that stuff very seriously. Yeah. So we went to this place called flight club in manhattan i took him there and where you can get sort of the rarest yeezys in pristine condition they also have they also have do you remember back to the future marty mcfly's um his he had high tops right? yeah he had high tops

the original high tops from Back to the Future are there and as I recall it was two or three years ago that we were there they were on sale for about $35,000

but you could wear the Back to the Future high tops it was unbelievable and I've even been to this thing called a sneaker convention. Sarah, a sneaker convention. Where do you find the time, David? I don't know.

But I will say this. At the sneaker convention for Christmas, my kids pooled together their funds and they got me a pair of Supremes tennis shoes. I'm sorry, sneakers, basketball shoes with the logos of every NBA basketball team on them. And so I only wear them when I go to NBA arenas. And every time I go, I get multiple comments, like multiple comments. It's, yeah, it's the only time I'm ever treated like a

celebrity is when I'm wearing my Supreme tennis shoes. So back to my dating conversation, if I were to go on, if I would be willing to go on a first date with a guy. We could have had the Ketanji Brown Jackson case. I know. Discussion, yeah. I would be more than willing to go on a first date with a guy who collected sneakers. However, a large topic of that first date conversation would need to be around one's attachment to those sneakers, where that attachment stems from, one's willingness to give up those sneakers, what happens when something gets spilled on those sneakers. I need to know how deep in we are with anyone who has serious hobbies, especially hobbies that take up room. But golf, video games are also hobbies that I have lots

of questions about before I will engage in a real relationship with a person. Hobbies are good up to a point. You need to know how obsessive someone is before you get into a long-term relationship with them. Similar to the road trip. You want to know their road trip behaviors. You want to know their obsessions. Yeah. Well, low degree of obsession with my one pair. Yeah, not you, David.

Of elite tennis shoes. Or sneakers, sorry. But you have a gaming chair and like other gaming paraphernalia. And that would have raised questions for me. I do. I do. I'm, I'm actually doing this podcast on powered by an Omen HP gaming desktop that

literally can podcast and power Starfleet at the same time. It's pretty amazing. So I went on a date one time and the person was allergic to cats and he was like, so obviously you would give up your cats if this relationship progressed. And I was like, no,

I have taken responsibility for these cats. They're my responsibility. He's like, well, I had a friend who gave up her cats for a guy she married. And I was like, yep, I hear you. That ain't me. That ain't me. And so these are the things you want to... Marriage is not a business proposal, but there are business aspects to it. And so there's going to be deal breakers in that negotiation. You might as well get them out up front. Don't hide your crazy. Be who you are

on that first date because if that person doesn't want to be with you, you've saved yourself a lot of time. That's how I think about cheating. When someone cheats on you, they have done you a huge favor. You don't have to waste your time anymore. Awesome. Yeah, I would say awesome is the last word that's going through your mind when that occurs, but in hindsight, I will put boyfriends in the position to see what they will do because that's life right you're gonna be in positions of temptation i had this guy begging me for a first date i knew he was a player he was incredibly good looking he's i won't yeah anyway um and so and i was like ah i don't know he like talked to all my male friends to have them convince me that he was a good guy.

He was ready to be in something more serious. And so I invited him to a party at my house. He took home my intern from that party. He called me the next day at 8 a.m. profusely apologizing, quote David, because normally he takes home way hotter women. Uh-uh. That's a true story. That's a true story. Oh my gosh. There's a whole category of person out there, Sarah, that I just don't understand. I just don't understand. You know what, David?

We remain perfectly good friends. No problem. Because it didn't waste my time, right? I would have been annoyed if six months in that nonsense had happened, then I would have wasted six months. But you know what? Problem solved. The intern was quite upset though. And that I wasn't okay with. Yeah. Yeah, absolutely. Well, I would say that was a marginally more interesting aside than subject matter jurisdiction versus cause of action. Or jurisdiction versus cause of action. Yeah, for sure. But yeah, we will get to that.

We will get to that. We promise. So, well, it's only Monday. So that means we're going to be back this week on Thursday. And in the interim, please rate us. Please subscribe to us. And please check out thedispatch.com.