Advisory Opinions - Courtroom Cams and Elon's Crusade

Episode Date: September 7, 2023

Exciting news from host-in-absentia Sarah Isgur. Partisan gerrymandering. Cameras in courts. David French and guest-host David Lat have so much to cover in so little time. Here we go: -New arrivals -Purdue Pharma update -Should the Trump trials be televised? (The Davids disagree) -Wisconsin's judicial elections mess -Alabama's ongoing redistricting wars and systemic racism -Elon Musk goes after the ADL Show notes: -2020 DOJ press release on Purdue Pharma and the Sackler Family -Just Security on Judge Jones's supplemental briefing order -Caplan v. Trump (Section 3 ruling) -Charlie Sykes on the Wisconsin Supreme Court drama -Singleton v. Allen (Alabama Voting Rights Act case) -David Firestone on Alabama Voting Rights Act case -Elon Musk blames ADL for lost revenue (NBC) -Musk blames Latham for San Francisco’s problems. Huh? (Reuters) -David French's NYT column on Texas age-verification law -AO episode featuring Ari Cohn on age-verification laws -Video version of this episode Learn more about your ad choices. Visit megaphone.fm/adchoices

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Certain conditions apply. Details's five seconds. Ah. Doo. Da da dee da. Doo da doo doo. Certain conditions apply. Details at phys.ca. You ready? I was born ready. Welcome to Advisory Opinions. I'm David French with David Latt. And you know what, David, we have a whole lineup. But before we start that lineup, there's something really pretty darn important to talk about. So David, we have a tremendous announcement. We're going to announce the birth of Cavan Case Walter Keller. So Cavan is going to go by Case Walter Keller. So he was born on September 1st.

Sarah is doing very, very well. There was a blast of pictures that were sent out. He's 20 inches, vital stats, 6 pounds, 11 ounces. Everybody's doing really well. grandparents were from County Cavan, Ireland. And I really hope I'm pronouncing that correctly because all I've been doing is texting and emailing. And so I've only read the name, so I'm assuming Cavan, but it would be in just absolutely the purest advisory opinions tradition if I just went ahead and mispronounced the name. But I got case down, case I got down. So Sarah's maternal grandparents were from County Cavan, Ireland, and her maternal grandfather was named Walter. So that's the origin of Cavan, Walter Keller. So Sarah is at home with two babies now, two kids now. And we've been in communication. She's doing very well. Everybody's doing very well. Nate is very excited to know Case and is fascinated by Case. And it was very cute.

She sent me some pictures that were almost the carbon copy of when my oldest grandchild, Lila, met my young grandson, Ezra, for the first time and how Lila was so close to his face when she was first looking at him. And I got a picture of Nate just that close to Case's face while they were fascinated by each other. So that is some wonderful news to start the podcast. So, you know, be sure to give good wishes to Sarah in the comments. I think she still lurks some, David, even though she's on maternity leave. Yes, and she is also on Twitter. So people should send good wishes that way, too. And threads, which I prefer to Twitter, as we'll discuss more later in this podcast.

So that's some wonderful news to start. So Sarah's going to have now several weeks with the babies at home, with Nate, with Case at home. And so it's a very wonderful time. So shout out to Sarah and Scott and Nate and Case. And then now on to the podcast, which is going to be pretty darn eclectic today. Another eclectic podcast. We're going to start with a very brief update on the Purdue Pharma bankruptcy case that we talked about that David's got. We're going to have a brief Trump update. Then we're going to go in to the wild happenings in Wisconsin. The very wild happenings around the Wisconsin Supreme Court. Honestly, I've never seen anything like it. Then we're going to talk about Alabama. And there was a ruling by three-judge panel,

district court panel in Alabama regarding Alabama redistricting. Then on to Elon Musk and Twitter and his defamation threat against the Anti-Defamation League. Defamation threat against the Anti-Defamation League. So that's going to be an interesting discussion. And if we have time, we're going to revisit a little bit of age verification. I wrote about it in the New York Times for last Sunday. There was a Texas district court ruling on age verification. It's going to be similar to what we talked about when we got Ari on and debated the issue. But if we have time, we'll address that. But David, let's get started. Purdue Pharma. Yes. So on the last show, we discussed the appeal of the Purdue Pharma bankruptcy settlement,

which is going from the Second Circuit to the Supreme Court. It's being challenged because it gives liability protection to the Sackler family, which owned Purdue, even though the Sacklers themselves have not filed for bankruptcy and people with claims against the Sacklers didn't get the chance to be heard in court. So as we mentioned last time, review in this case was sought by the Supreme Court, by the Solicitor General, specifically representing the U.S. trustee who appears in these bankruptcy proceedings. And we heard from a listener who is an official from the former administration, the Trump administration, who is familiar with the case. And I will actually just read what this listener sent in because it's a short and very informative missive. One of the most alarming

things about this case is DOJ's posture. Presumably, with Attorney General Garland's blessing, DOJ is essentially calling for the unwinding of its own settlement and resolution, and no one has noticed a slight of hand. The bankruptcy plan was only possible because DOJ brokered the plan in its deal with Purdue and the Sacklers. A 2020 DOJ deal allows $1.775 billion to go to state and local governments for opioid abatement.

Indeed, the DOJ settlement is conditioned on the company emerging from bankruptcy as a public benefit company, PBC, the proceeds of which will go to those programs. Without that deal, DOJ's $2 billion criminal forfeiture claim would have super priority, which would leave nothing for the other creditors. Maine Justice and three U.S. attorneys' offices, including the Southern District of New York,

supported this plan even under A.G. Garland's watch. Indeed, the plan was confirmed by the bankruptcy judge in part because of DOJ's support. Yet DOJ has used a sleight of hand by allowing the U.S. trustee's office to object to the plan that DOJ itself had brokered and go all the way up to the Supreme Court. This listener concludes, I wonder if the Supreme Court justices will ask the Solicitor General why DOJ is objecting to a plan that DOJ brokered in the first instance. So, oh, and this person finally concludes, sorry, I also wonder if there are broader

implications parties desiring to settle with DOJ must believe DOJ will stand by its word So, oh, and this person finally concludes, sorry, I also wonder if there are broader implications. Parties desiring to settle with DOJ must believe DOJ will stand by its word, but DOJ's posture in this case casts a cloud of doubt over that. So, any thoughts, David? No, I just, I found that interesting and provided me with a little bit of a different kind of perspective on the case. And now it doesn't surprise me that one DOJ run by one administration would disagree with what another DOJ did by

another administration. But it does provide additional context to the larger dispute. I think makes it, you know, the way it's framed and the way the Supreme Court, you know, the Supreme Court's action, the framing of the case still makes me think that the Supreme Court is going to disapprove of this plan. But definitely some very helpful context. this podcast is we have folks who listen, who know, who have intimate knowledge of some of these cases and write in and provide additional context. And I appreciate that very much. All right. So on to Trump updates. A couple of Trump updates. Number one, we do have a ruling that there will be cameras allowed. There will be cameras allowed in the Fulton County case if, in fact, the case stays in Fulton County. And I don't have a whole lot to say on that. I actually did have a really interesting discussion, David, where I was talking to somebody on a podcast recently,

and they asked me my thought on cameras in the courtroom. And they were specifically asking, should the rule be changed for the federal case, the one that's set for March 4th, and allow cameras in the courtroom? And I said, no, I don't like it. I don't like the idea of cameras in the courtroom. I was thinking of the federal judiciary

as really the most functional branch of our government right now. And we've talked a lot about this, that on this podcast, that we are the most functional, we, the judiciary, I'm sorry. I think of the legal system as a we, but the judiciary has been the most functional American branch of government. the most functional American branch of government. And the small C conservative in me is saying, let's not mess with that formula. And look, I don't know how much not having cameras in the courtroom has helped preserve sort of the integrity of the federal courts,

you know, however imperfectly. But the small C conservative in me doesn't want to see cameras. And I said, besides, you're going to have them in Fulton County. You're going to get to see them. I would actually disagree with you on that, David. I think that some listeners think we agree too much. I actually favor cameras in the federal court,

subject to, of course, appropriate measures to protect the safety of witnesses and jurors and what have you, because I think they add transparency and accountability. They allow us to see what's really going on. We don't have to rely on the mainstream media or even bloggers who may sometimes have their own biases. We can listen and hear for ourselves. And a lot of people were worried when we brought cameras to certain circuit court arguments and when we brought live stream audio to the Supreme Court. And the sky did not fall when any of those things happened.

And so I'm persuaded by the op-eds of Steve Brill in the Times and Neil Katyal in the Washington Post. Both of them made, I thought, a good case for why if we're going to have cameras in federal court, this Trump case is a good pilot for it. Yeah, so I am colored by every televised trial I've seen since O.J. Simpson. That was not a good one.

No, that was not a good one. And it took me a while, and I've made this point before, but it took me a while to really understand why I didn't like these televised trials. And one reason why I don't like them is you're actually, everyone is watching them as if they're the jury, that they're sort of trying to decide who they think should win based on watching the televised trial when they are not in the position of the jury in some very important ways. And I've tried to explain it like this, that what you are seeing is everything the jury is supposed to see and everything the jury is definitely not supposed to see.

Because if they see it, we believe that their determination of the case will be tainted. So you are seeing everything they're supposed to see and everything they're not supposed to see, which means that what you are watching is inherently tainted according to our rules of evidence and how we trust people to adjudicate cases. You might say, what on earth are you talking about? Well, the O.J. Simpson case is a really good example. So in O.J. Simpson, you had the evidence presented by the jury. Then often the jury would file out of the room. If you remember this and David, I don't know.

Are you old enough to? Oh, yes. Okay, okay. I'm trying to remember where I was, but I saw the Ford Bronco. I was around for that. Okay, okay. As the elder statesman, I never know. I'm in between you and Sarah age-wise.

Okay, yeah. So you were old enough to follow this thing. And so the jury would file out and then the lawyers would argue motions at length in front of the judge. And you'd watch that too. And they would often be arguing about what evidence was admissible. They'd be, and then, you know, the defense attorneys take a, maybe a different kind of posture and demeanor when they're in front of the judge versus in front of the jury. And so when you're hearing all the evidentiary motions, you're also hearing all of the, quote unquote, evidence that's not admissible. And because and why is it not admissible? Because it's prejudicial in one way or another.

And so I've often wondered, what would I have thought about the O.J. Simpson case if the only thing I did was see the evidence presented to the jury? And that's that. That's it. Would it give me more sympathy for the jury verdict? Because I was stunned at that jury verdict. why I'm reluctant to really embrace the cameras in the courtroom. And then as we saw, like with Johnny Depp and Amber Heard, there's this whole amateur industry that pops up of reading body language, of all of these things that are just, again, like completely not what juries consider, completely not what they're allowed to consider, but can absolutely dominate public discourse. I remember in the Depp-Herd trial for two, three, four days, all I seemed to see on social media was rank speculation as to whether Amber Heard actually

snorted cocaine or something like that on the witness stand very subtly and just very weird stuff, you know? And so when the trial of the century, I just imagining all of that turned up to 11 and it's not, again, not the view the jury has. So that's been, it would be interesting, David, it would be really interesting if there was a feed you could opt into that was only the jury feed, you only, so it turned off, went to like nature scenes when the judges, when the lawyers were arguing in front of the judge. So you only saw what the jury saw. What, it would be very interesting if you could have a control group. Here's one group that is watching the whole thing. And here's one group that's watching only what the jury. It isn't actually necessarily helping you understand

what the jury sees because it's completely tainted. So that's kind of my view on it. And no, I think that's fair. I think that's fair. I would just argue that we're going to find out already about various sidebars and things the jury wasn't able to see. And we already in the legal system have situations

where we are asked to inhabit or people are asked to inhabit the jury box, even if they were there or not jurors. For example, when an appellate court has to review sufficiency of the evidence, for instance. And so we are able to compartmentalize in that. But look, I totally understand your point. And I do endorse your idea for the special jurors eyes only feed. endorse your idea for the special jurors eyes only feed? Yeah, I think that would be, that would be fascinating. Take 12 people, cross section of 12 people, have a juror feed, have just the public television, you know, the television feed and see if it would make any difference at all. Perhaps it wouldn't, perhaps it wouldn't. But it, after a while of seeing some of these televised trials, it finally hit me. Oh, all of this is irreparably tainted by the extended discussion of inadmissible evidence, along with the way in which people's attitudes about witnesses and witness demeanor are tainted by complete sort of like pop psychology that is fostered in, you know, so

imagine if you had a jury that on the one hand watched what was going on and then rather being than being sequestered was then immediately able to open TikTok and have somebody go, you know, I'm a body language expert. And let me just go ahead and tell you that Amber Heard or Johnny Depp was completely lying. And the jurors were like, oh, I didn't notice that. That's what televised trials do. value and some inherent value in transparency. There is some inherent value in watching the evidence come in. But we'll see. We're going to have one without and we're going to have one with. And it's going to be really interesting to see sort of how the public responds to both of them.

Well, what do you mean in terms of we're not sure there's going to be removal, but if there is removal, we could have the whole thing removed. So maybe we won't have a control group. I don't know, which kind of takes us to the other updates on Trump. Yeah, right. Well, I'm assuming no removal,

which is a bad assumption, which brings us to the other update. Yeah. Yeah, so I was originally predicting no removal and technically our listeners are correct. These cases have already been, quote unquote, removed. It happens automatically. But the question as a practical matter is whether or not the removal sticks. As in, does Judge Steve Jones, the federal judge from

the Northern District of Georgia, approve the removal or does he remand or send the cases back to Judge McGaffey in state court? So, listeners, we stand corrected. You're right. It's technically removed or these cases are technically removed. The question is whether or not the removal sticks, which I think in layperson understanding, people get what we're saying. But anyway, Judge Jones issued this request for supplemental briefing. This is in the case of Mark Meadows, former White House Chief of Staff, the first defendant to remove for removal. Account one contains a number of overt acts attributed to Mr. Meadows. What a finding that at least one, but not all, of the overt acts

charged occurred under the color of Meadows' office be sufficient for federal removal of a criminal prosecution under the relevant statute. And I read this as good news for Meadows and bad news for the prosecution, because it suggests that Judge Jones believes that at least one overt act by Mark Meadows did occur under the color of office. And so it does suggest to me that maybe Judge Jones is salivating a little over this very juicy historic case, and maybe he wants to handle it. And maybe he thinks that as a federal judge, he can do a

better job. And he does have more experience than Judge McAfee. He's been on the bench for more than a decade. Judge McAfee has been on the bench for less than a year. So maybe Judge Jones does want to take this case for himself. The one thing I would just remind listeners of is not only does Meadows need to show he was a federal officer at the time and the acts occurred under color of his office, he also still needs to show that he has a, quote, colorable federal defense, close quote, to the charges. And that has always been the hardest part. Yeah, yeah. No, I was intrigued by the briefing order as well. And I don't think there's any other way to read it, David, than what you're saying, that the judge has at very least raised an eyebrow.

That is a judicial raised eyebrow, a supplemental briefing order. So very, very interesting. 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.

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So moving on from the Trump updates. Well, there's the D.C. case. I don't know if we want to talk briefly about what's going on before Judge Chutkin in Jack Smith's case. Yeah, absolutely. Go for it. So the team of special counsel Jack Smith complained about Trump's daily extrajudicial comments or statements that threatened to prejudice the jury pool. And this came in the context of the government opposing Trump's motion to vacate Judge Chutkin's protective order, which allows the government to automatically file documents under seal. The defense doesn't want the prosecution

to have the ability to do this. They want to have a three-week meet and confer briefing process every time the government wants to file something under seal. And the government filed a motion opposing this, noting that Trump continues to make these prejudicial, extrajudicial statements and kind of proving the government's case. Within minutes of the government response, Trump went on to Truth Social and once again called Jack Smith deranged and alleged that Smith has, quote, unchecked and insane aggression, close quote. So that's what's going on in the D.C. case, where, as we discussed last time, Judge Shutkin has sent a March trial date. And look, if they were to get this process for getting to brief and argue and meet and confer over every time the government has to file

something under seal, that would surely blow us past the March trial date that Judge Shutkin has set so far. Right. And I think that's important to note that all of these trial dates are subject to change. It is not the case in criminal litigation that once a trial date is set, these things never move. They move all the time. And so, you know, if I'm Jack Smith and I want to keep the trial date, you've got some strategic decisions to make yourself over how many motions are you going to make that could potentially push this thing off. And, you know, what this reminds me of, David, is how Trump, if you have zero respect for a process and you have sufficient stature, it is really amazing how much you can put a system under strain.

really amazing how much you can put a system under strain. Because for lower profile defendants, we would never hear of this kind of controversy because what would happen is the judge would say, let's say your lower profile defendant, John Smith, John Smith, shut up. You cannot speak anymore. You are now gagged about this case. And it might be B-13 in the local metro section of the paper,

if you remember old actual paper or papers. But it would be, or the bottom of the web page, a couple of paragraph story, judge gags reputed mobster, right? Nobody cares if they're sitting there trying to corrupt the process. The judge has a simple solution. You can't do this anymore. Now, if they go too far, that can be appealed. But this kind of stuff happens all the time where if you're abusing the process, if you're abusing the prosecutor or the judge, you're just told to cut it out.

prosecutor or the judge, you're just told to cut it out. Well, if you tell Donald Trump to cut it out, it's a whole new ballgame because he's the front runner for the Republican nomination. Most recent Wall Street Journal poll I saw said he's tied with Biden, 46 to 46, I believe. I mean, like this is, he presents a huge problem to the system when he just disregards the system's norms. And in a lot of ways, the judiciary hadn't encountered that as direct and front and center as it has now. And it's just going to be interesting to see how that system reacts and adapts to this kind of very brazen challenge of the most basic norms. Well, speaking of challenges to norms and Trump updates, I know that you and Sarah had Professor McConnell on to talk about the very interesting article by Professors Bode and Paulson about whether Section 3 of the 14th Amendment disqualifies Trump.

And so in one more Trump update, one of these early lawsuits filed on behalf of basically three random voters, I'll call them, trying to get Trump off the ballot under Section 3, was dismissed by Judge Robin Rosenberg, a federal judge, Southern District of Florida. And she did not reach the merits of the Section 3 argument. She held that basically these three random voters, I'll call them, did not have standing in terms of the particularized injury that would allow them to sue over that. So we'll see secretaries of state, other local state officials may be making decisions under Section 3. But for now, we have not, I don't believe, have seen a federal or state judge grapple with Section 3 in this context. We've had

cases involving other figures like, I think, Madison Cawthorn and maybe Greene, but I don't think we have had one over Trump yet ruled on on the merits. Yeah, I don't know that we have either. I've not seen it. Listeners can tell us if we're wrong about that. But I do think, I'm glad you brought up standing. Just to tell folks, I've received a number of messages from some folks who are about as expert as you can be in standing, and they have corrected me on a point that's very important to correct. So I had said earlier in an earlier podcast, two or three or four podcasts ago, well, Congress could have written standing into the statute. That is not 100% correct. So Congress can write standing into a statute, yes,

but that doesn't end the standing inquiry. So there still need to be elements of traditional standing present even when Congress writes standing into the statute. And I know that's a very high 30,000 foot overview, but never fear standing experts. I've been talking to a law professor standing expert. I'm wanting to bring him on the show and just tell us everything about standing

so that when you end the podcast, you will be a hit at cocktail parties whenever standing comes up. So we're going to correct sort of all the misapprehensions and sort of sharpen where the ambiguities are. And that's coming. So I'm looking forward to that discussion. I'll nail down when that is,

but that's coming hopefully this month. So I'm really looking forward to that. And look, I know standing is not the sexiest topic, but as you've seen, if you're a faithful follower of this podcast, it's deciding a lot of cases of extreme public importance. And so I think we need to nail this down

as well as we can nail it down. So I wanted to correct that. I left a misimpression that all Congress had to do to give people standing is just give people standing. And it's not quite that simple. So I want to clarify that and we'll have an expert on. All right. Should we move on to the drama? Yes, we love the drama. Oh, my gosh. Okay. I wanted to bring up, and I know we have a lot of listeners because you've texted me, you've written me, who are experts in all of the drama in the state of Wisconsin. And when I say drama in the state of Wisconsin, you'll know that it encompasses the Wisconsin

Supreme Court. It goes beyond the Wisconsin Supreme Court, but we're going to focus encompasses the Wisconsin Supreme Court. It goes beyond the Wisconsin Supreme Court, but we're going to focus on the Wisconsin Supreme Court. And I think the best way, and I'll try to summarize this as best I can. And there was a really good Charlie Sykes newsletter that, and Charlie, as a lot of people know, is from Wisconsin,

that sort of provided a lot of this backstory. And we'll put this in show notes. But what Wisconsin is doing, David, I think the short way of saying it is testing, putting the idea of popular election of judges to the most extreme stress test anywhere in the United States. Okay. So try to follow along and I'm just going to go ahead and apologize in advance. Whenever you dive into

one of these state, one of these state controversies, you're also diving into a pool that contains all kinds of backstories and tales of backstabbing and intrigue. And I'm just going to mea culpa right from the start. I do not have a PhD in Wisconsin Supreme Court drama. I have a GED in Wisconsin Supreme Court drama. And let me just, I'll try to make this as simple as possible. So here's what's happening. So not too long ago, there was in one of the most closely watched elections in the United States, a more progressive candidate for Wisconsin Supreme Court beat a

conservative. Her name is, and I'm just going to apologize in advance, Janet Protesowitz. I think it's Protesowitz, maybe, but again, I apologize too. Yeah. P-R-O-T-A-S-I-E-W-I-C-Z. I'm going to go with Protesowitz with all due apologies because only again read this name. OK, so Janet Protesowitz won the election, won it pretty handily as one of these post-Dobbs election where abortion rights were a big issue. Gerrymandering was a big issue. But now the top GOP leaders in the state are threatening to impeach her. Why would they impeach her? Well, because it's easy.

It's easy. So you can only a simple majority of the vote of the GOP-controlled state assembly can impeach a justice. So it's very easy to have it done. And then while there is this impeachment, until the trial on the impeachment, the judge is suspended. Now, if the judge is, justice is impeached and convicted, then the governor, who's a Democrat, can immediately appoint another justice to take her place. governor who's a Democrat can immediately appoint another justice to take her place. So you would say, well, why impeach her then if the Democratic governor can just immediately appoint another progressive justice? Well, then here's the wrinkle. If you impeach, but don't hold a trial, then is the justice essentially indefinitely suspended? So there's no justice, can't function in her office, but the office isn't vacant. So the Democratic governor can't appoint another justice to take her place. So would this create a permanent limbo

unless she essentially just resigned, which then would create an opening, which would then allow Evers to appoint another justice, but then that new justice would have to immediately stand for reelection in 2024. Wow. Okay.

So here, that looks a lot like sort of just raw power politics, right? A, an election outcome happened that we don't like. And so therefore what we're going to do is just essentially overturn it using the impeachment power and procedural trickery. is just essentially overturn it using the impeachment power and procedural trickery. But no, okay, the GOP, a GOP listener who is steeped in this would say, no, no, no, no, no, no, it's not exactly right. So what you're having is Protesowitz in the election was making a lot of, in the election was making a lot of, took money from Democrats, was handsomely funded by Democrats, is now going to be deciding a gerrymandering case,

prejudge the abortion case. It's going to be decided because Wisconsin had a pre-Roe abortion law. In other words, there's a lot of evidence that in the money that she took in, in the statements that she made, that she is not an unbiased jurist, that she is a partisan actor. And, you know, look, I think that part of the there's a point here. OK, so she took apparently $10 million from the Democratic Party of Wisconsin, okay? So if you took $10 million from a party

that then stands to gain an enormous amount from a redrawn map, should you have done that? Should you take that $10 million? Is that gonna prejudice you in the case? Well, I would be very uncomfortable with a rule that allowed a judge to take a lot of money from a party that's either a litigant in the case

or can directly benefit, very directly and immediately, from litigation. But then there's another twist, David. In 2017, again, this is Charlie reporting, a group of retired judges asked the court to prohibit justices from ruling on cases involving campaign donors. But the conservatives on the court killed that proposed rule on the grounds that it asked the court to infringe on the First Amendment rights

of people of Wisconsin who wish to participate in judicial elections, either through supporting a candidate directly or speaking out on issues in a judicial race. So there was actually a proposal to prevent judges from ruling on cases involving campaign donors. And that rule got killed in this circumstance by the conservatives on the court. And so it's actually not unlawful in Wisconsin for a justice to rule on a case where a donor had an interest. So this is an absolute mess. And it's a reminder, I think, David, of how much the system has relied not just on the formal legal rules that governor conduct, but also on sort of upholding informal norms. So a candidate for judicial office may technically

be able to speak out on specific issues that might come before him and her, but maybe as a norm had chosen not to. Or judges may technically receive campaign donations and then rule in cases where those campaign donations were relevant, but maybe as a norm had chosen not to. were relevant, but maybe as a norm had chosen not to. And now what do we do when that sort of norm that isn't a rule is just sort of blown through completely? Where does that leave us? And one of the places it leaves us, David, is it really demonstrates some of the inherent weaknesses in popular elections of judges. This is a mess. I mean, any thoughts?

Yeah, a couple of things. In terms of norms versus rules, the ploy of impeaching Justice Protusewitz and then never holding a vote reminds me a little bit of what the Republicans did to Judge Garland, Chief Judge Garland, when he was nominated to the Supreme Court. And it's a design flaw. And I think, to use your phrase, it is an exercise in pure power politics, because there's no rule requiring them to have a vote, whether on Chief Judge Garland or whether on the impeachment of Justice Protusewitz. Well, then there's nothing that requires them to do this. Even if there's been a norm that you should, in some kind of sportsmanlike way, have a

vote on something that you put on the table, well, what if you'd never do? So I think that's one thing. A second thing I would point out that Charlie pointed out in his post is Protisewicz did say she would recuse from cases involving the state's Democratic Party itself, from which she received all that support. cases involving the state's Democratic Party itself, from which she received all that support. But technically, the party is not a party in the litigation sense, either of the two cases that seek to redraw the state's legislative boundaries. So there's this sort of distinction between does the party have an interest in something and is somebody actually a party to a

case? And if we were to adopt a broad interest standard, I think you would have way more recusals all over the map because people are interested in all kinds of things. And so I think to prevent having recusals left and right, we have had the boundary drawn somewhat narrowly. And then I guess the final point I would make is just, look, I don't love how much Justice Protusewitz talked about issues that will be coming before the court, not a fan of that, not endorsing that. But when you have judicial elections, of course, you're going to inevitably have things like that because the candidates will say, the voters need to know what I stand for versus what my competitor or what my rival stands for. And so, and, you know,

in fairness, Daniel Kelly, who was her opponent, he also said things which maybe we might be uncomfortable with about how he might rule in particular cases. Now, look, you can argue that maybe she was worse or something, but again, this is what you get when you have an elected judiciary. Yeah. And one of the reasons why we don't notice it is that most judicial elections are either uncontested or functionally uncontested or not controversial. So, you know, here in Tennessee, we do have judicial elections that the system is a little different from Wisconsin. But I can only think of two or three times in my life living in Tennessee where judicial elections have mattered. And when they do matter, guess what, David? Issues come up. Issues come up. I mean, because, you know, nobody knows what it would be like,

or nobody knows what anyone's talking about if someone said, well, I'm not going to talk about cases and issues, but I'm an originalist in the vein of Akhil Amar. Like nobody, what? I'm an originalist. Well, that might, okay, that could be, or someone saying, I'm a Dworkinist. I mean, for people who know what that means, that has some implications. But even saying to you and me who look at this all of the time, well, I'm an originalist is sort of a pretty vague statement that can mean any number of things when it comes to actual outcomes of cases. of things when it comes to actual outcomes of cases. Sarah and I, I think we both call each other originalists to some degree, and we disagree all the time on case outcomes. We agree a lot, but if there's one thing that I think listeners should take away from the AO podcast, it's that originalism is not like a scientific method of discovery of the one pure, true, unvarnished

potential ruling. It is a framework for deciding controversies. It is not the decision of the controversy itself. And so if you just talk in philosophies, you're quite frankly not informing voters. And so in these hyper-contested races in closely divided states and countries, I mean, how do you do this in a way that doesn't sort of betray what your judicial philosophy would mean in specific issues? It's just, it's kind of hard to imagine, David. Yep. Yep. I don't really have a solution to that. kind of hard to imagine, David. Yep. Yep. I don't really have a solution to that. I know. And look, we know that life tenure appointments and life tenure has its own set of pitfalls. But if push comes to shove, with a full knowledge, there's no perfect

human system that we're going to be able to devise, I would really prefer not to have judges elected. Yeah, I think I'm with you on that. Yeah, I think I've told this story before, but one of the most vivid ways in which a judicial election sort of came home to me was when I was practicing law as a very young lawyer and we were involved in a dispute, one coal company versus another over mountaintop removal mining. And my client owned the coal. The opposing side was the mining company who wanted to mine the coal.

We said there'd been no agreement to mine the coal. They said there had been. So they just drove their heavy, their mountaintop removal equipment through a chain link fence and started blowing up a mountain. And we filed an injunction to stop it. And as soon as we filed the injunction and we were able to secure a very temporary injunction in a different court, but we had to have it heard in the actual jurisdiction where the mining was taking place. What happened is

the mining company stopped all activities, brought the whole workforce into the courtroom. stopped all activities, brought the whole workforce into the courtroom. All of them voters, right, David? All of them voters. And then I had to argue against this mountaintop removal mining project that was providing jobs for these people. And these people were voting for the judge. And I just, I did my best. I tried my hardest. And one of the most frustrating moments and oral argument for me in my career was when the judge said, well, wait a minute, if they're going to pay you for the coal, what's the problem of just letting them mine it? And I said, well, your honor, imagine if I came to your house and I started digging a hole in your front yard and you said, what are you doing? And I said, well,

I'm building a cottage for me to live. And you said, no, you're not allowed to. That's my yard. And I said, it's okay. I'll pay you rent. I said, that doesn't cure the damage. Just simply paying rent. He goes, that's not a good analogy. I'm thinking, that's a great analogy. But we won at the court of appeals level. But yeah, you know, when you're talking about the raw power of the judicial voter, sometimes you feel as if the law isn't entirely in charge of the case. isn't entirely in charge of the case. Now, I know there are elected judges who are extremely ethical, who are able to put all of that aside and rule according to the law and the facts and then present themselves to the voters for reelection

and say, that's my record. You know, you can take it or leave it. But I also know that there are incentives in judicial elections. So yeah, I'll be curious. Listeners, what do you think of judicial elections? All right. Alabama, David. Alabama. Do you want to take the lead on this one? So speaking of elections, as listeners will recall from your and Sarah's discussion, in June in Allen v. Milligan, the Supreme Court ruled 5-4

that the Voting Rights Act required Alabama to create a second majority Black congressional district. Right now, I believe Alabama has seven federal election districts and only one of them is majority Black. That one elects a Democrat historically, and the others elect Republicans. So the Supreme Court upheld the ruling of a unanimous three-judge district court. These are the courts that hear these election-type cases. And the court held that Alabama is required to create such a second district. So on remand, when the case goes back to Alabama, the state of Alabama asked the three judge district court for five weeks until late July to enact a new plan. And everyone knew this was time sensitive because Alabama had previously told the court that we need a new election map by

early October of 2023 this year for the 2024 election. So lo and behold, the legislature comes up with and the governor approves a plan, a new electoral map that contains only one majority black district, even though the Supreme Court had basically told them you need to have two. And the state had the gall to actually concede that their plan basically does what it does. Their position, and this I'm going to read now from the opinion that was just issued by the three-judge court saying, you can't do this, Alabama, you have to listen to us in the Supreme Court. So Alabama's position was, notwithstanding our order and the Supreme Court's affirmance, the legislature was not required to include an additional opportunity district in the 2023 plan. And in the words of the three-judge panel,

district in the 2023 plan. And in the words of the three-judge panel, that concession controls this case. And so what have they done? This is again from the opinion. We have no reason to believe that allowing the legislature still another opportunity to draw yet another map will yield a map that includes an additional opportunity district. So basically what they did was they enjoined the legislature and they ordered the special master, who is a longtime lawyer who served under Republican administrations, to draw a new remedial map. So that is what's going on in Alabama. I guess that's also a form of drama where the state legislature essentially thumbed its nose at the Supreme Court. Yeah, it's an interesting case because we've talked about this forever that it is very difficult in states of the old South in particular, and states of the old Confederacy in particular, to draw a distinction what is a racial gerrymander

versus a partisan gerrymander. And, you know, this really raises an interesting and deeper issue of, because we've also talked about over the course of this podcast, that what is systemic racism? And what does that mean? What is that concept? And one of the ways I've tried to define systemic racism is when racists created racist structures for racist reasons that are then maintained by non-racists for non-racist reasons. Okay. So nimbyism, for example, is an example of, in my view, this is my argument of systemic racism. You have redlining that was done on the basis of race years ago that created very distinctly different neighborhoods in a given community.

And so then the people who live in the most sort of most favored neighborhoods have reaped a lot of rewards from that, better schools, for example, or better home values. And so therefore, when there is an attempt to reform or change the way the school districts are zoned or the way that residences are zoned, then somebody who doesn't have a racist bone in their body might say, wait a minute. I moved here for this school district or I moved here for these property values. And they could pass a polygraph to say, I don't have anything against anybody. I'm just trying to maintain a property value. And I think what you have sometimes in some of these redistricting cases, I'm not going to discount that there are still racists out there in the South and in governance

in the South. There are. But often what you also have are people saying, why are you accusing me of racism when all I'm doing is a partisan gerrymander? Partisan gerrymanders are not only lawful. I mean, the Supreme Court's basically washed its hands of these things. And so stop bringing race into what is a partisan issue. disconnect that a lot of people have in some of these discussions about the legacy of race in this country is that there's a reality that exists because of racism that gets maintained by non-racist for non-racist reasons. But if you're the victim historically of the racism, the system is still there. So I don't know.

David, what do you think? Do you think that the Special Masters District, and my view is, and we talked about this, is once Alabama sort of defied the Supreme Court, the judges were going to set them straight in the lower court, and then the Supreme Court's just going to let it stand, is my view. What are your thoughts?

I think that's right. There's actually history here. There was, I think, maybe 20 years ago or something when this one district, this majority black democratic district was created, the state opposed it, the three judge panels upheld it, and then it went up to the Supreme Court and it was summarily affirmed. And I could see that happening here. So you have to wonder what's going on. So here's one theory, your Times colleague, David Firestone from the Opinion Editorial Board, basically his argument is Republican lawmakers, and I'm quoting from him, quote, Republican lawmakers who control the statehouse did not want to be seen as the creators of the district. They didn't want to appear that they were knuckling under to the power of the federal government. They wanted the court to do it,

and they wanted the public to understand that it was the court's doing, close quote. So if a lot of what happens in political and legal fights is a question of accountability, who is going to basically bear the political cost of something? Look, these folks are not dummies. They know they're defying the Supreme Court, but they want the public, they want the voters to know that it was the Supreme Court or this lower court, this three-judge district court that did it, not us. They do not want to even have, maybe they're worried about primary opponents. I don't know, but they don't want anyone to be able to say that we did it. not even if they were forced to do it, they want

to say we didn't do it, period. And basically the special master or the three judge court did it for us. No, I think that's exactly right. It is. No, we did not knuckle under. We did not yield. And that's, I mean, that is in many ways the ethos of the hyper-partisan. Now, a lot of people have compared this to massive resistance and the massive resistance to desegregation orders. And again, I'm not willing to go there. I'm also not willing to say that there are no racists in this process, but I also think that a lot of this is explained by pure raw partisanship. And part of the culture of the hyper-partisan is never yield, never back down.

If I'm going to take a loss, it's going to be only after I've done everything that I can conceivably do to prevent the loss. So some of this is race, but some of this is hyper-partisanship. And one of the really sad legacies of these centuries of racism in the South is where racism begins or racism ends and partisanship begins is often really difficult to tell, sadly enough. It's very difficult to tell. Although it is interesting, David, and this is just a little bit of bonus pure political content. Right now, there's a lot of consternation within the Democratic Party because approaching 2024, it looks like some of these racial gaps are narrowing in American politics, that it is not the case that the Democratic Party is enjoying the at least the polling advantage with black voters that it used to enjoy. And in fact, that polling advantage has been diminishing. For the last five, six, seven years.

for the last five, six, seven years. And so one of the ways actually through this wilderness will be if that partisan difference across racial groups starts to disappear. And when, and I'm gonna be optimistic and say when it disappears, these kinds of disputes hopefully will be in the rear view mirror. Because remember, a lot of these partisan disputes were rooted in very deeply in racism,

a lot of these partisan distinctions. And so if that is disappearing, that is a tangible sign of progress in this country. So I look at that as absolutely an unmitigated positive that we're beginning to see these racial gaps in voting disappearing. And from every angle, one, it's depolarizing the race issue. The other thing is it's also telling any given political party that you can't count on one voting block just simply on the basis of identity. You're going to actually have to maybe deliver in some tangible ways for various voting blocks the way you have to deliver in other ways for other voting blocks. And so I think it's a good thing

that we're seeing this closing gap. I'll just make one final observation on your point about race and racism versus politics and partisanship. I would point out that the Supreme Court decision was penned by Chief Justice Roberts, who is on the record as being very opposed to racial discrimination. He was joined by Justice Kavanaugh and the liberals. Justice Kavanaugh was also part of the majority in the affirmative action cases. And I know that you and Sarah explored this originally when you talked about Alan V. Milligan, but I will note that these two Republican appointees stood by this interpretation of the Voting Rights Act. And then this three-judge district court, it consists of Judge Stanley Marcus of the 11th Circuit. He's a Clinton appointee, although he was appointed to

the district court by President Reagan. And then two district judges appointed by Trump, Judges Terry Moore and Anna Manasco. So I would point out that this particular case, I think you could argue, has, quote unquote, Republican support in the sense that, I guess, two justices and two, three judge court members who are Republican appointees basically said, Alabama, you gotta do this. And Alabama did not. Right, right. Exactly, exactly. And we knew what was coming

as soon as we saw that the next map was only one majority minority district. And there's another thing going on here, David. So think about how narrow the Republican majority is. And you have one or two more cases like this across the South, and that majority is gone. You add in the George Santos situation in New York, where his seat is in real peril, as it should be. You add in potential redistricting in some blue states that had sort of not really partisan gerrymandered as much as they could have. Yeah, the Republican House majority is in

real danger just from some of these districting decisions, even putting aside any other political consideration. All right. A little Elon Musk to end things. You're shaking your head. No Elon Musk. I feel like you could have an entire podcast devoted to dumb things Elon Musk tweeted or something like that. And don't get me wrong. I'm sure a lot of listeners are huge fans of Musk. I really respect his business acumen, full disclosure. I have a small position in Tesla. He is definitely not a dumb person. He's a brilliant person in many respects, but some of the stuff he tweets, especially about law, oh my goodness. Oh yeah. So I'm with you, David. Like I never, I'm not like an Elon Musk hater.

When he took over Twitter, I was very curious. I wasn't hostile to it. I was, I was skeptical and curious. I wasn't even optimistic. Yeah. I was, I was a little more arm's length. But my arm's length wasn't necessarily based on any view of Elon as a bad guy. It was much more, I think this website is kind of irretrievably broken. And I don't know how you fix it without fundamentally altering the way that it works. But man, and by the way, I was also a big fan of both Tesla and SpaceX, especially SpaceX. Everybody knows I want to go to Mars, which is completely out of the question now. let's start with this very, this sort of the very basic controversy that unfolded over the last few days. And this is Elon, Twitter has had a large drop, according to Elon, about 60% drop in advertising revenues. which if that drop continues, it's really hard to see how Twitter remains a viable business. It's a money losing enterprise. It doesn't really have a path to profit profitability as of yet.

Twitter blew the verification hasn't really made up for the lost revenue at all. And then as the dynamics of sort of the Twitter blue system, which means that a lot of people who are sort of fanboys of Elon Musk and often quite frankly, very trolling, for them, the eight bucks a month or however much it is now is a great investment because what it did is it allowed them to be at the top of the algorithm as they troll.

Because what does a troll want in life? They want to be seen. They want to be heard. And for eight bucks a month, you're impossible to miss. And so it created a system where the people could pay the eight bucks a month, get sort of top billing. And then a lot of those people were kind of horrible. And so when it starts to get top billing and the algorithm is a lot of horrible content. So the ADL, the Anti-Defamation League, is out there waving its arms saying, a lot of this stuff is anti-Semitic.

There's a lot of just raw, unfiltered anti-Semitism on the platform. Which is correct. Okay. Correct. Now, I know that there are a lot of people who critique the ADL from the right. They think the ADL is too progressive.

It doesn't have a sort of unbiased view of where anti-Semitism comes from, tends to focus more on the right versus the left. I know there are sophisticated critiques that people make of the ADL, but what's been happening over the last few days on Twitter is not that. So you've had ban the ADL trending. You've had a lot of raw anti-Semitism. And then Elon Musk comes and he says, you know what? We've lost 60% of our revenue. And I think the ADL is one of the reasons why we're going to sue him for defamation. I'm going to sue the anti-defamation league for defamation. David, take it away. Your thoughts. Well, so the ADL has complained that Twitter takes down only 28% of content flagged as anti-Semitic. But what Musk is claiming is that, and again, I'll quote, he thinks the ADL is trying to kill this platform by falsely accusing it and me of being anti-Semitic.

And you might think this is an idle threat, but Musk has already sued his company X. I'm sorry, I will still keep calling it Twitter. I just can't call it X. I know, I know. What do you, you say tweeted, you say X? Sorry, I just can't get it. But anyway, his corporate vehicle X, I'm fine calling the company X, but the platform, the service will always be Twitter to me. His company X filed a lawsuit against a nonprofit called the Center for Countering Digital Hate, CCDH, which monitors hate speech and disinformation. And he accused CCDH of orchestrating a scare campaign to drive away advertisers. So if you think that this is just an idle threat on the part of Musk, I'm not so sure. He hired White & Case to go sue CCDH, so maybe he'll hire somebody to go sue ADL.

Yeah. And so, you know, this leads to, I think we should give a very, very basic primer here. If you're suing for somebody for defamation, there are two tremendous defenses you can erect. One is truth. Truth is a defense to a defamation claim. And so it's an absolute defense to a defamation claim. If what you're saying is true, it is not defamation. Now, how much will that help the ADL in this circumstance? Limited. Limited because there's a lot of subjective elements that go into deciding what is or is not racism. There is not a universal agreed upon definition of this is racist, this is not racist. So that leads to the other defense, opinion. And so if it's my opinion, if I look at some facts and I form a subjective opinion after looking at those facts, then good luck, you're not winning. That's a defense to a defamation claim. So it seems to me that the ADL, to the extent that it's making subjective judgments about what

anti-Semitism is, is not just going to be fine. It's exactly the kind of case that anti-SLAPP motions were designed to combat. And SLAPP, for those who don't know, is a SLAPP lawsuit is a strategic lawsuit against public participation. It's when a big-pocketed litigant sues a media organization or a private citizen or whoever who has much shallower pockets and tries to essentially use the process as punishment to drain them of resources in defending the defamation claim.

And ADL isn't exactly poverty stricken, but it's not Elon Musk. So this would be a classic example of slap litigation for which if it was filed in a jurisdiction with an anti-slap law, Twitter would face in all likelihood a summary proceeding that they would lose, and then they would have to pay attorney's fees. And it's just really hard to see the defamation here. Yeah, I agree. And I don't actually believe that ADL has actually said anything like Elon Musk is anti-Semitic. I think it just has said that Twitter is not taking down a certain large percentage of content that we, in our opinion, think is anti-Semitic. It would be one thing if they said he was anti-Semitic and their opinion or their supposed opinion seemed to allude to some

unknown facts. That is one way you can fight the opinion defense. Oh, well, they were to imply that they had heard him say some anti-Semitic remark at a cocktail party. Oh, well, they were to imply that they had heard him say some anti-Semitic remark at a cocktail party. Well, that's a statement of fact, if he did or did not make such a statement. But I don't think ADL has ever said that. They've just said, in our opinion, he is not taking down enough content that, in our opinion, is anti-Semitic. So I don't see this going anywhere. Yeah, I don't see it going anywhere either. And look, there are circumstances where, so let me use an illustration that I use when a columnist called me to sort of walk through the defamation law. I said, okay, if somebody said David French is racist, well, that's not defamatory, even if I'm not racist. Now you said, why do you think David French is racist? And you

say, well, he's conservative and all conservatives are racist, right? Okay. Well, I am conservative, but I'm not racist. But that nothing about that is actually defamation. But if you said, someone said, David French is racist. And I said, why on earth do you say that? And they say, well, because he burned a cross in somebody's yard on September, blah, blah. Well, that would be defamation because I did not. And depending on, you know, if I'm as a public figure, you know, I'd have to show actual malice versus a private figure. But that factual statement as misstatement, that factual misstatement as a foundation for the allegation, that's what would be actionable. Not the allegation of racism, but the false statement of fact as the foundation. And so that's where a subjective statement like racism can prick your ears. Why do you say that?

And then if you see that someone's made a false statement of fact as a foundation for the subjective judgment, you can zero in on the false statement of fact, but not the subjective judgment, if that makes sense. Yep, yep. And one thing I'll just add on this is in terms of another thing that Elon Musk said on Twitter that I think people might question is he called for a boycott of Latham and Watkins, which for our big law listeners might be interesting. He complained that Latham does pro bono work on behalf of an organization called the Coalition for Homelessness. And he believes that these pro bono lawyers are contributing to the homelessness problem

because there have been some court rulings saying you can't do X or Y in dealing with the unhoused. And so that's another thing that he tweeted about. But I tend to agree with one, I discussed this on Original Jurisdiction, my Substack newsletter. I tend to agree with Jenna Green of Reuters who pointed out that, look, come on, the underlying causes of this, including the lack of affordable housing and wealth inequality. That's what's really driving the homelessness crisis, not a bunch of pro bono lawyers who maybe eke out a victory here or there. Right. No. Yeah, absolutely. Absolutely. No, this is a legal podcast, not a public policy podcast. But if I was running a public policy podcast, I would really want to dive into

that homeless question, especially on the West Coast. I've heard some really good stuff, plugged my colleague at the Times, Ezra Klein, had Jerusalem Dismas on to talk about what's happening out West and really walk through a lot of the factors. Is it about drug addiction? really walked through a lot of the factors. Is it about drug addiction? Well, drug addiction is everywhere, but homelessness is worse there. Is it about the weather? Well, there are a lot of places where the weather is pretty good compared to say New York or Detroit or whatever. And homelessness isn't as bad there as it is in California where the weather is good. Well, what is it about California besides the weather or if the weather is just as good elsewhere, if the drug addiction problem is just the same elsewhere? Maybe it's the fact that it's really hard to find any place you can afford to

live. Isn't that a factor? And I think it is. I think it is. And look, I'm open to arguments that government or public policy in California is contributing to the problem. I just don't think Latham and Watkins bears much of the blame. Right, exactly. No, I'm not saying that government policy doesn't have a role. Government policy has a role, by the way, in housing affordability. Rampant nimbyism, the inability to develop low-income housing is a huge problem in these areas. And I can highly recommend there was a Times video done about how blue state policies are fostering inequality in blue states. And it focused on housing in California and it focused on taxation,

I believe in Washington state. Amazing. I'll find it. I'll put it into show notes. But try finding affordable housing in the Bay Area. Just try it. It's unbelievable, David. It's unbelievable. David, it's unbelievable.

And the interesting, the way people transition and move from crashing on people's couches and that's not always sustainable for very long, it's a shock, to living out of their cars, which is also not sustainable.

I mean, it's just, and then you pile on, add on to that any adverse event, like a loss of a job, a spiraling drug addiction, et cetera. Yeah. Anyway, I'm sure we'll get some listener feedback on this because we barely touched on it, but it's a really fascinating topic and one that I think actually for a legal podcast could be fruitful because there's a lot of legal elements to it. All right. So there you have it.

An eclectic podcast. We did not get to the age verification issue. We might get to it next time. But if you're very curious about that, I refer you back a few AOs ago. We can also put that in the show notes where Ari Cohn and I debated, discussed that issue at great length. And, you know, a Texas court ruled in Ari's favor, not mine, for very good reasons. And that is the Supreme Court authority right now, as of now, is on the

side of those who would strike down age verification. My argument, and David, maybe we could preview a slight disagreement. My argument is the Supreme Court rulings are based on an outdated view of what the internet is and is capable of. And, you know, you might disagree a bit on that. Yeah, I think I probably am more skeptical of the laws than you are. And I would add that in addition to the Texas case, which you discussed in your Times column,

which I think is a closer one, a judge in Arkansas ruled against that state's age verification law, which applies to social media, not just pornography. And I think social media has a lot of legitimate and non-problematic content. And now people are being required to have their age verified. And so I just fear that there could be some unintended consequences from this. I feel like the internet in some ways, the growth of the modern internet,

we've kind of made a bunch of lucky choices in some ways. I mean, granted, there are many aspects of the internet that are horrible, but to the extent that there are good aspects, I think we've kind of stumbled upon some positive things. And probably being fairly liberal in our regulation of it, we can, again, I know you've talked about Section 230 before, but I guess what I would say is proceed with caution. No, I'm very well aware of the downsides. Yeah, absolutely. I think one of the, because I often make offline comparisons when I'm talking about online speech. So, for example, Section 230, I think, has some really good offline analogies.

They're analogous offline circumstances of, quote, moderated content, like the way a professor moderates a classroom or a city council moderates the topic or the time that people have to speak to a city council about an issue. Or will often moderate and ban personal attacks on city council members, for example, etc. Now, there are constitutional issues there, but the moderation element offline doesn't then transform the speakers into it doesn't transform it into the speech of the professor or into the speech of the city council. It doesn't transform it into the speech of the professor or into the speech of the city council. Any more than moderating comment in the New York Times website shouldn't transform all comments on the New York Times website into the speech of the New York Times. So I think there are a lot of times offline analogies that are very helpful. And I found the zoning analogy, the ID that people present if they're going into adult entertainment. That's a matter of state law.

You got to show the ID. So you don't have that anonymous access offline. Are you entitled to it online just because it's online? That's, to me, you might end up with that being the fundamental question. Is there something about the online platform that entitles you

to some sort of anonymous access? All right. That's a podcast. Yep. Congratulations once again to Sarah and Scott on the arrival of Case. Very exciting. Yes, very exciting. So yeah, please send her well wishes. And we don't have a firm date yet for the end of the D&D show. But I do think, David, as we do this more, we're going to move from D&D to advanced D&D. A D&D, which is the game that I played when I was in high school, which is as we just get better at being a hosting duo, we're moving from D&D to A D&D.

But yeah, so we don't have a, we don't have a specific timetable yet, but wonderful, wonderful news for Sarah and her family. And we're just incredibly excited about that. So wish her well, send her prayers, thoughts, especially for sleep.

Because we know, David, you know how hard it is. Because we know. David, you know how hard it is. All too well. We're still dealing with that. Absolutely. Well, thank you for listening. Appreciate it. And we will be back next week. Thank you.