Advisory Opinions - David and Sarah at Yale

Episode Date: February 25, 2022

On today’s podcast, David and Sarah take a trip to New Haven to speak with the law students of Yale University. It’s another packed show. The Supreme Court heard oral argument in a case that dealt with whether a state can defend a rule when the United States stops doing so. Plus, they discuss public-accommodation law and a redistricting lawsuit in Arkansas, but that’s not all, sparks fly when our hosts open the floor for questions.   Show Notes: -Arizona v. City and County of San Francisco, California -303 Creative LLC v. Elenis -Arkansas State Conference NAACP v. Arkansas Board of Apportionment -David in The New York Times: “We Disagree on a Lot of Things. Except the Danger of Anti-Critical Race Theory Laws.” Learn more about your ad choices. Visit megaphone.fm/adchoices

You ready? I was born ready. So thank you so much for hosting us here. This is our second live podcast that we've ever done. The first, I feel like I'm behind a speaker. Our first was at the University of Tennessee, what I like to call the real UT. But it's a real honor to be here. And what was not mentioned in the introduction of Sarah is that we actually bonded in 2015 over one of my least prescient

takes as a pundit or analyst, which was the real outsider to emerge in the 2016 cycle is not going to be Donald Trump, but Carly Fiorina. That did not age well at all. I really enjoyed my time in the Fiorina administration. that was a good time. There's a multiverse version where like, yep, that was great. So we're recording this podcast with full knowledge that Russia just launched a ground invasion of Ukraine. This is not a foreign policy podcast. This is a legal podcast.

We are going to cover some of the international legal aspects of it. We're going to cover some of the law of war aspects of all of this as this unfolds. But this podcast is not going to focus on what's happening in Ukraine. If you want to get full analysis from the dispatch crew, tune into our podcast tomorrow, which is going to be Ukraine, Ukraine, Ukraine, and then perhaps a little bit more Ukraine. So this one, we're going to talk about really three things before we open it up to questions. One, we're going to talk about a oral argument yesterday in the Supreme Court in a public charge case that was fascinating. And Sarah's gonna navigate you through that discussion.

And for those of you who are sort of civil procedure, fed courts nerds, this is your podcast. So 25,000 people just stopped the podcast and 10 people are listening. Well that guy who has the rule 22.4 tattoo from the Supreme Court, like that person's still listening. That person is still listening, yeah. Then we're going to talk about 303 Creative, a case that was just granted a certain grant at the Supreme Court involving a web designer who is challenging, doing a pre-enforcement challenge to

a Colorado public accommodations law. So we're going to talk about that from a free speech standpoint. And we're also going to talk about that from a legal consistency standpoint, And it might challenge almost everybody in here. And then the last thing we're going to talk about is Voting Rights Act case in Arkansas, where there was found to be no private right of action under Section 2 of the Voting Rights Act. So we're not talking about anything controversial at all. So, Sarah, do you want to start with the public charge case and civil procedure? I would love to. So yesterday when David and I were walking, I was like gushing about how interesting this oral argument was, like I was talking about the Kardashians. So this, I'm like very into this. So right, the substance of the case is about a rule that was pursued during the Trump administration through notice and comments. will be burdened on public resources, basically, when they're applying to enter the country through

a visa normally, change of status based on your visa application, asylum claims potentially, although that gets a little weird. And here's the good news. Nothing about this case is actually about that rule. So don't worry. Just like that can leave your head right now. But for those curious about what maybe the merits would be on eventually. Okay. This case is actually about the Administrative Procedures Act, like so many other things. But this got so fascinating to me. So walk through this again. Trump administration decides to pursue this rule through notice and comment. So it doesn't actually become operative really till the end of the administration, because that's how long notice and comment makes, which is why no administration actually wants to do all the APA-y things, which is why we keep having these cases, right? We've talked about DACA before. We talked about, I mean, God, like everything's APA these

days. So when the Biden administration comes comes in there's now several lawsuits pending trying to challenge this trump era public charge rule there's a lawsuit in the northern district of california a lawsuit in the northern district of illinois and there's two other ones as well in other circuits and the biden administration dismisses their appeals in three of the circuits, doesn't dismiss their appeal in the seventh circuit, leaving in place the only nationwide injunction against the rule, and then says, aha, we don't need to go through notice and comment rulemaking because we're acquiescing to a court order finding that the rule is unlawful. Boom, boom, boom, public charge rule gone super fast. Just to interrupt for a second, because we're going to have a lot of listeners I know already who are just completely lost. It's super clever. Yeah, it's super clever. And why is this super clever? Because what's

happened in what's been incredibly contentious in recent years is this idea that what one administration enacts administratively, whether it's DACA, as you said, or any number of other procedures, can the other administration undo it? And how? And how do they undo it? So we've had cases where there have been injunctions against, for example, the revocation of DACA because though DACA was enacted by memorandum, the memorandum rescinding DACA wasn't quite good enough. That's arbitrary. According to the chief justice. According to the chief justice. And so what we've had this real issue about how do you stop an administrative action by a previous president. And what the Biden administration did is basically kind of hack the system by saying, if we can find a court that has enjoined it

and just not appeal the injunction, we're not doing anything but complying with a court order. Therefore, what is there for anyone to review? It's kind of clever. It's more than clever. The justices were a bit baffled. So here's then what happens. Arizona's Arizona is a state, but the Arizona attorney general tries to intervene in the Ninth Circuit. Their argument being that, like, yeah, this was in the northern district of California. But basically, migrants are fungible, like just because they start in California, they can end up in Arizona. Therefore, we still have an injury. It will cost billions of dollars that, you know, by definition, these people are taking from public funds. And so they also try to intervene in the Seventh Circuit.

But the Supreme Court, and this will become relatively important if confusing, the Supreme Court grants cert on the Ninth Circuit one. All right. So we're at the Supreme Court yesterday. And there's like several cool things to talk about here. One, the Department of Justice has long held, but continued in oral argument really more explicitly than I think I'd heard them ever do, to say that they believe nationwide injunctions are unlawful. Now, of course, nationwide injunction here is helping them, but their point is like, feel free to find nationwide injunctions unlawful because that helps us. Right. That nationwide injunctions undermine executive authority. Husband of the pod has published on this.

He thinks nationwide injunctions, particularly in the APA context, are lawful. He was solicitor general of Texas and obviously got a lot of nationwide injunctions against the Obama administration and then was kind of horrified when during the Trump administration suddenly conservatives were against nationwide injunctions. He's like, no, no, no, this actually is very helpful in reining back like executive overreach. And if you don't like the administrative state, nationwide injunctions are like APA bread and butter. There's language in the APA that talks about courts setting aside unlawful actions. That's sort of his textual hook. The Department of Justice and Justice Gorsuch do not think that that is the case. And so there's this really

interesting back and forth between the Solicitor General's office, Brian Fletcher, and Justice Gorsuch, where they're just like having this little anti-nationwide injunction love fest. So if you're into that, you can get that out of this argument. But wait, there's more. At one point, first of all, it's not at all clear where any of the justices are really coming down on this. They're all deeply uncomfortable with it. Justice Breyer, Justice Kagan, I mean, they're talking about the fact that like, look, we might agree with you policy-wise on the public charge or even on the legal side of the public charge, but every administration is now going to be able to simply never do notice and comment again if they can get a single district judge to agree with them is that like is the apa just did it just die uh and so part of the problem

for arizona is that this is the ninth circuit case but as i said that's not the nationwide injunction and so it's like well why why is this case even have standing really when even if we grant you what you're asking for, it will not fix the problem, which is sort of a core part of standing, right? If the relief you're asking for doesn't change your situation, isn't an actual remedy, why are you here? There's confusion among the justices. And this gets to maybe part two, I'll call it, which is on this podcast. I am very hesitant to ever criticize an oral advocate. Right. It's hard. Everyone's doing their best. Also, just no need to be mean to people. You know, just not my style. I don't like being mean. people you know just not my style i don't like being mean um i will say that i thought that in this case the arizona attorney general argued the case instead of his solicitor general he's running

for senate in the state no doubt this is you know a profile raising he wants a feather in his cap a literal feather you know you get a feather when you argue at the supreme court so he literally gets a feather so even if he loses he gets a feather that's right at the Supreme Court. So he literally gets a feather. So even if he loses, he gets a feather. That's right. Scott has all these feathers. Literally, I like found them in a box and I was like, are these your SCOTUS feathers? And he was like, yeah. And I was like, maybe we should do something with them. So I put them in a little, they're like little in a cup. They're like, I don't know. I don't know what else to do with them. If anyone has better ideas for how to display feathers, they're like white quills. Anyway, I haven't figured it out. Okay, so here's the problem. The Attorney General has a lot of other stuff going on. He is a lawyer. He's a good lawyer.

He was an AUSA. This is not criticizing his sort of legal credentials in any way, but when you're talking about a really detailed CivPro case, basically, that has extra helpings of administrative law, it didn't help Arizona's case. He was simply not conversant enough to help clear up confusion of the justices. And also, I thought, you know, one of the things that I've said, I think the Solicitor General's office does so well, is just explain. Just be really honest. Always keep your credibility and explain what's really going on. And Arizona, I thought, also failed to do that. Now, disclaimer, I went to law school with the Arizona Solicitor General, so I hope I'm not getting OH in trouble with any of this. But

yeah, I just think OH would have done. He was my cat sitter in law school. He lived below me. This is just another reminder that Sarah knows everybody. I wouldn't even tell you right before the podcast how much that was illustrated, but yeah, Sarah knows everybody. Okay. So here's the problem. For instance, at one point, Justice Sotomayor is confused, but also genuinely asking, like, how are we supposed to do this when this is up on the Ninth Circuit? And he, the Attorney General for Arizona, keeps pushing back, well, that's the one you took cert on. Basically, like, it's not our fault. And he's trying to point out that, well, we could take the reasoning from this Ninth Circuit one, apply it in the Seventh

Circuit, get there, appeal the Seventh Circuit nationwide injunction, or the, you know, Northern District of Illinois nationwide injunction up to the Seventh Circuit, and that would give us our APA notice and comment hook. And she's like, yeah, but the Ninth Circuit injunction, once they dismissed the case, it dissolved. So thereth Circuit injunction, once they dismissed the case, it dissolved. So there is no injunction in place. There's literally nothing for you to be here appealing. And he just sort of flim flams around. It's not actually until the U.S. Solicitor General's office gets up. And he's like, well, actually, I should probably clear something up. The Ninth Circuit injunction is in place still. We simply dismiss the appeal.

The non-nationwide Northern District of California injunction is still there. That's now after his argument. That sucks, right? Like you don't even get to explain then why that's relevant. I mean, a mess. At other points, Justice Breyer saying, what's happening in the Seventh Circuit right now? Where is that? And he doesn't really understand what Justice Breyer is trying to ask. And then he's like, we appealed those things. And Justice Kagan's like, what things? Those things? She's like, did you appeal on the APA stuff? And he's like, yes. Did they? Like, does he know? I just gave me no me no confidence and again this is not to criticize him as an advocate but more about when you have the political elected person doing the supreme

court arguments this is why we've seen i think a rise of solicitor general state solicitors general and like it really highlighted why that's helpful and why we should give more to the state solicitors general. So I've got some takeaways here. So here's takeaway number one. And so we're talking to law students, a lot of law student listeners, a lot of young lawyer listeners. Legal tactics really matter. Legal tactics really matter. And when you look at the procedural posture of this case, one of the things that you see is that the justices, and we also saw this in the Texas SB8 case, and we are beginning to see legal challenges being thrown up towards the court and legal problems being thrown up to the court, that the court is quite literally kind of struggling in public to grasp

what it needs to do. So legal tactics really matter. We often think of cases in the context of what's the bottom line? Are the good guys going to win or the good guys not going to win? And we're going to get to that later. Legal tactics really matter. Number two, our administrative law structure in the United States is increasingly broken and ambiguous. This is another thing that I think is really important for, and something that Americans need to understand when we're thinking about what is the health of this republic that we live in, and that is that we have an increasing difficulty right now in knowing how to promulgate

or change administrative law. If you listen to Advisory Opinions podcast, you'll note that we've talked about this arbitrary and capricious review is being bulked up like Russian Olympic style with, you know, all... Too soon. I'm sorry. It's being bulked up with steroids to such an extent that it's almost like a kind of intermediate scrutiny, which then again throws the ball back in Congress's court to say, well, Congress has the ability to deal with this. So those are two takeaways from it. And then a final question for you, Sarah.

Who wins? Well, look, here's the problem for the federal government is that when the justices say, okay, why can't they intervene in the Ninth Circuit? The answer is, well, the Ninth Circuit isn't really even at play anymore. This is all in the Seventh Circuit. And they're like, okay, why can't they intervene in the Seventh Circuit? And the answer is, well, they don't have an injury there. You know, they're not part of the Seventh Circuit. And, you know, the number of people who are actually affected by the public charge rule in the first place, it wasn't working, la, la, la, merits. Okay. Justice Kagan then is like, but wouldn't this be better as an APA suit, which you were required to bring in the D.C. Circuit,

for instance. And, you know, again, I think this is where the Solicitor General's office does such a good job maintaining their credibility. They say, yes, this should be brought as an APA suit, but just so I'm being perfectly honest, we would also say they couldn't do that, you know, because the Solicitor General's argument is, once there was a district court nationwide injunction saying that the rule was unlawful, they were simply acquiescing to that. And so there is, they don't need to go through notice and comment in order to acquiesce to that court opinion. And so the APA lawsuit would lose as well. And this is where I think the chief justice, to your point about who's going to win, is like, And this is where I think the Chief Justice, to your point about who's going to win, is like, so we're just done with the APA then.

So just to read a little bit about what he said. So then it's really quite a license for collusive action for any incoming administration to change rules that were enacted pursuant to the APA and therefore can only be repealed under the APA. Fletcher responds, I'm suggesting that we have to think long and hard, sorry, this is still the chief. I'm suggesting that we have to think long and hard before adopting a rule that allows anybody, any administration to circumvent notice and comment rulemaking before the repeal of a rule. The effect of taking the rule off the books without notice and comment is an effect of the remedial authority of the Northern District of Illinois asserted in this case. I mean, it goes on, but the point is, even where I think Justice Kagan came in thinking, this is an APA thing, it's the wrong vehicle. Then she got a little more uncomfortable when

it was like, well, they would just lose under the APA and it still allows them to not do notice and comment. And Justice Sotomayor sayingor saying well it's the wrong vehicle because this is the ninth circuit case well i mean they're the ones who granted cert on the ninth circuit part and that injunction is still in place so they do have harm there justice gorsuch of course wants to reach the nationwide injunction part i think that we're in for a really interesting non-ideological grouping on where they're going to come down on this. And it's very similar to the Jackson case in the sense that basically someone figured out how to hack the system. And the justices are like, crap, there's equity problems with this, even if we

can't pinpoint what the problem is. But as we saw in Jackson, you and I, I think both thought they'll find a way. And they didn't. No, they didn't. And I think there's a chance here. They're like, we hate this. The APA sucks and is broken, but they didn't do anything wrong. Administrations acquiesce in court decisions all the time. And just because this one is public and visible and political, not obvious that they've done anything different than what every other administration has done. And Arizona intervening just gets them to the intervening rules and when a state can intervene. Justice Breyer, of course, perhaps giving away a little bit more than he intended to in the oral argument. Just saying, I don't know how it wasn't even implicit. He explicitly said that they ruled for the attorney general of Kentucky in the Cameron case, which we don't need to get into. And the opinion is not out yet. So everyone's like, oh, yeah, yeah. I mean, I'm going to miss that guy. I'm going to miss that guy.

So some interesting intervener law to be made. Maybe broadening intervener status, maybe not. Some justices annoyed, by the way, with the U.S.'s arguments on intervener points. Definitely, though, this is more APA law being made. And if Jackson's any clue that, no, maybe just because you find a clever way doesn't mean they'll be the ones to stop you. Right, right. Okay. Radical change of gears from APA, the intricacies of the APA to, oh yeah, let's just go straight into culture war stuff. So the Supreme Court just granted review in a case called 303 Creative versus Alanis. So this case is in the Masterpiece Cake Shop vein, in other words, but it has some real distinctions

to it. So in this case, what you have is a pre-enforcement challenge. In other words, nobody has gone to the plaintiff and sought to have, in this case, they're doing website creation, sought to create sort of a custom website. What they're doing, rather than turning away a customer, is they're doing a pre-enforcement challenge, Colorado's public accommodation rules, unconstitutional. And what's very different about this case, as opposed to Masterpiece Cake Shop, where if you don't remember Masterpiece Cake Shop,

this was a Colorado baker who refused to do a custom-designed cake for a same-sex wedding celebration, a gay marriage celebration, a gay marriage celebration, or Arlene's Flowers, which was a florist who was refusing to do a custom floral arrangement, it is much clearer that what we're talking about here isn't as much the provision of services as it is actually speech. Okay, so why does this matter? If you look at, there's sort of two spectrums. If you're going to locate your polar spectrums, on spectrum one is a case called Newman v. Piggy Park. For those of you who don't remember Newman v. Piggy Park, this was a case where a restaurant owner was denying service to people on the basis of race.

And one of his defenses is that he was following the will of God and he had a free exercise right to deny people barbecue, literally barbecue on the basis of race. And this case was decided in the height of the civil rights era when religious, pre-Smith religious liberty, win religious, pre-Smith religious liberty, where strict scrutiny was applied to religious, to claims of state action that burdened religious expression and religious freedom. And the court called the assertion that he had a religious liberty right to deny service on the basis of race, of barbecue, and the quote was patently frivolous. So on one end, it's patently frivolous to be able, that you have a constitutional right to be able to deny a commercial service, say on the basis of race. On the other end of the spectrum, on the far other

end of the spectrum, you would have a case like West Virginia v. Barnett, which is a cornerstone case that says the government cannot compel your speech, particularly on matters of law, culture, politics, nationalism, etc. There's a famous quote, if there's any fixed star in our constitutional constellation, it's that no official, high or petty petty can compel. And it goes on to describe all the topics that are off limits. And so if you have all the cases at one poll, if you have cases at one poll and cases at another poll, the friction we've had is where these two principles collide. The friction we've had is under what circumstances is a denial of a commercially provided service, such as a custom cake or a custom floral arrangement, or in this case, a custom website, a denial of a service,

kind of like a piggy park on the basis of race or a protected class. And how much of it is speech? protected class, and how much of it is speech? It's just speech. And this case is fascinating because the 10th Circuit said, you know what? We're answering this for you. There's no question that what we have here is not class-based discrimination in the same way that you would have in, say, Piggy Park, because the designer here will make websites for people of all races, ethnicities, sexual orientations, etc. It's just that she won't design a website or they won't design a website that has a message on it that they disagree with. And there's no question that a website is speech.

And there's no question that this is content-based speech. And so there's no question that we're going to apply strict scrutiny to this public accommodation law in Colorado. And even though it's speech, even though it's content-based, even though there's a compelled speech element to this, you know what, website designer? You lose. You lose. And why do you lose? And this is really interesting. Essentially because the compelling governmental interest standard, least restrictive means test was met because she was, or the designer was in essence, a monopoly of one. Can I read the monopoly language? Please, please read the monopoly, yes.

So this is the majority, and then I'll read the dissents monopoly portion too. This case does not present a competitive market. Rather, due to the unique nature of appellant services, this case is more similar to a monopoly. The product at issue is not merely custom-made wedding websites. It's not. But rather, custom-made wedding websites of the same quality and nature as those made by appellants. In that market, only appellants exist. And as Amicky apparently agree,

monopolies present unique anti-discrimination concerns. So then Judge Timkovich dissenting. The majority's premise this argument on the idea novel to the First Amendment of a monopoly of one, characterizing the product at issue as not merely custom-made wedding websites, but rather custom-made wedding websites of the same quality and nature as those made by Ms. Smith, emphasis added. The majority then concludes that monopolies present unique anti-discrimination concerns justifying regulation of a market in which only Miss Smith exists. But this reductive reasoning leads to absurd results, which frankly should be obvious. By describing custom artists as creating a monopoly of one, the majority uses the very quality that

gives the art value, its expressive and singular nature, to cheapen it. In essence, the majority holds that the more unique a product, the more aggressively the government regulate access to it, and thus the less First Amendment protection it has. This is, in a word, unprecedented. It's reasoning. It's reasoning. It's a weird reasoning. I mean, if you start to really extend this, let's say into other areas, let's talk about legal services, the provision of legal services. Nobody would argue, for example, that a brief, a legal brief that I would write when I was being paid to practice law wouldn't be an act of expression. when I was being paid to practice law wouldn't be an act of expression.

And an act of expression unique to me, does that mean there is a monopoly in the provision of David French legal services held by David French? And I don't know what the unique nature of that would be. As near as I can tell, it would constitute extreme procrastination in brief writing and occasional Lord of the Ring references. But what is the unique nature? In this sense, every single artist, every single provider of a unique service, therefore becomes a monopoly. And the ability of the state to swoop in and engage in content and impose content-based restrictions, where's the limit? It's a non-starter. No, that's crazy.

It would apply to this podcast, right? Is it all legal podcasts that are available, or are we unique? According to the majority, this would be a unique legal podcast, and therefore the government could have a compelling interest in demanding certain types of speech or preventing other speech as long as it was narrowly, you know, the least restrictive means. There are a few other caveats there. But I mean, the logic is terrifying, which is why we've said all along we thought the Supreme Court would take this one. Although it took a while. It just got passed over conference

to conference. And we thought, I thought that we were looking at a dissent being written. It's interesting because they only took the speech QP, the question presented. They did not take the religion QP, and maybe that's what was taking so long, or maybe it was something far more mundane. And I think the reason they took it at the end of the day, because it was so clearly speech. If you remember, and I'm sure you all do, you can quote it, masterpiece cake shop oral argument. There was an enormous amount of conversation about what are the limits here? What is speech?

If you're an architect and you're designing a house, is that speech? What about you're a master chef? What are the limits? What is speech here? you're a master chef. What are the limits? What is speech here? Because it was pretty clear that if you could identify what Masterpiece Cake Shop was offering as speech, there was probably pretty clearly a majority to rule for Phillips and Masterpiece Cake Shop. The ambiguity and the difficulty was, was this speech? And because here at the Tenth Circuit, they're just flat out, And because here at the 10th Circuit, they're just flat out, the majority is flat out saying it's speech.

I think this case is not going to be difficult to predict an outcome, but here's what I want to transition to. I want to transition to your consistency point. Yep, oh, I've got a list. Because we're going to have an awful lot of people on the right side of the aisle who are going to be very happy to see 303 creative llc

okay so it's not it's a limited liability corporation they're going to be very happy to see corporate free speech vindicated they're going to be very happy to see that um but what's what are the implications sarah for that in some of our modern culture war issues? So this is just something I've been marinating on recently that I probably need to actually commit to pen and paper. But a lot of what we've seen just in the last three years, maybe even two years, is, and I love it, right? It's showcasing not people's hypocrisy.

That sounds so pejorative. Well, some of that. Some of it maybe. But forcing people to be consistent. So I've talked about this in the context of Sarah Palin's defamation case. If you're on the side of Sarah Palin, then you also need to be on the side

of Dominion voting machines against Fox News and vice versa, right? If you think Fox News should win their lawsuit, then you think the New York Times should win their lawsuit. Now, in some of these examples I'm going to give, I get it. There are slightly different facts. Maybe one set of facts meets the standard and the other doesn't. But bear with me, because I think it'll be hard to say that all of these, you know, you don't see a larger point here. You know, the Texas abortion case. Well, California is going to have their gun

version. And so that's going to force a consistency on the Supreme Court. And for, you know, I've seen some specific commentators saying, just assuming that there's no way the Supreme Court would let California, a California version of the civil bounty, you know, lawsuit idea apply to the Second Amendment? Oh, I absolutely think they will. Because, I mean, a couple of reasons. One, I think the left totally misunderstands what conservatives think about gun rights, but let's set that aside. The cases are coming in such close proximity. People don't like to feel like they are being inconsistent, that they don't have principles. And so just for that reason alone, I think those cases would turn out the same

way. DACA versus the migrant protection protocols. Well, if you liked the fact that the chief justice said that the Trump administration couldn't repeal DACA, then you gotta like the fact that he said the Biden administration couldn't repeal the migrant protection protocols um not that they've come out with that one yet but uh the public charge case right i've talked about this if you are okay with the biden administration not having to repeal through notice and comment and using a single nationwide injunction to get rid of a preview what took a previous administration years to get into place under the APA. Good for the goose, good for the gander. Wait for the next administration. They're going to get rid of Biden

APA notice and comment rulemaking stuff within, it took, it was on inauguration day is when they did this, right? Like it took no time. Commandeering and federalism. So, right. So the Department of Justice just filed a lawsuit against Missouri over their sanctuary gun laws. They are nearly identical to what the Trump administration sued over in the sanctuary immigration laws. Again, you've got to be kind of consistent in this.

Either you think commandeering is a problem or you don't. And I love that some of these things are happening, particularly in the Second Amendment versus liberal, you know, actual political context. I think it's going to force people to think much more deeply about covering the Supreme Court in particular in a purely ideological guns one, immigrants one, abortion one. No. These cases are coming in such close proximity to one another. My hope is that it will force that. And in the 303 case, of course, we're talking about social media companies, right? If you think 303 Creative has the right to not put speech on their website that they don't agree with, then you kind of got to think Twitter and Facebook do too. Yes, again, I understand

Section 230. I get that there are differences, but hopefully you see the overall point on this. And again, Astros, my husband is involved in that litigation. Yeah, I think this is a really important point because one of the frustrations that I've long had as, gosh, I think my first First Amendment case was in 1995, was my first First Amendment case. And I have represented people from all across the spectrum. And what I've found is if you are a civil liberties,

if you're an attorney who practices in civil liberties, you just gotta be ready to be unpopular. You just have to be ready because the way the American political system is working and the way our culture war works, we do not currently have a side of the big red-blue divide that is consistently committed to civil liberties. Now, in some areas, so for example,

you would say the Democratic Party Team Blue might be more consistently committed to civil liberties in the criminal procedure context, a more robust Fourth Amendment. It used to be that on the right, there was an idea that the right was sort of more committed to a robust First Amendment. It was as if, you know, you could go on the right,

for a while, it was as if you could go to the right and the Bill of Rights really was like one, two, three, four, five, six, seven, eight, nine. And then with on the left, you would go and it was the Bill of Rights was one, two, well, three, everyone loves three, three wins, three, four, five, six. And so the reality, however, is that as we become more polarized and as the raw animosity is rising between the two sides of the political spectrum it is very difficult for liberty to survive animosity because you will put on your issue spotter distinction hat and try to figure out how can i find a way that this corporation that I like gets to speak and this corporation that

I don't like doesn't get to speak because the very idea that they get to speak is destructive to the body politic and this is one of the the arguments that you get in regarding free speech you know people who are not involved in a lot of the the free speech culture wars often, people who are not involved in a lot of the free speech culture wars often kind of look at it from a distance and say, how are people justifying censorship? And I say, well, it's easy. I'll tell you exactly how they're justifying censorship. They believe they are absolutely correct on matters of vital, vital, vital importance. And therefore, your dissent not only is of no value, it's actively dangerous because your dissent could lead people away from what is the obviously

correct position. Now, this is very distinct and different from sort of the John Stuart Mill defense of free speech, which essentially goes something like this, that one, you know, look, we're imperfect people. We don't know everything, especially in the more complex the issue is. And even in simple issues, we don't know everything. So if I'm wrong in free speech, in discourse, free speech shows me that I'm right and I change my position, free speech has been an extreme benefit to me. It's moved me from error to truth. But what if I'm right? What if I'm right and I'm interacting with somebody who is wrong? That even the interaction with somebody who's wrong is beneficial to me in many ways because it will sharpen my own thinking about my own position.

It will make me aware of what the opposing ideas are, and it will prepare me and help me to understand how to rebut them. And that's of immense value. How is it, you can see that every day. I'm going to get off my soapbox in one second, I promise. Once I get rolling on the free speech soapbox, it's, you see it every day. If you see people who are constantly writing in partisan spaces for partisan audiences, it every day. If you see people who are constantly riding in partisan spaces for partisan audiences, it is sloppy. It is constantly sloppy. If you see people who are riding not in partisan spaces for more ideologically diverse audiences where they're getting incoming from multiple directions, it tends to be far tighter, far more well-reasoned, often far more gracious.

And you can see that difference in what discourse does in the, frankly, in the quality of thinking and reasoning, in the presence of disagreement and debate, as opposed to living in the monoculture. End TED Talk. All right, let's do real quick on Voting Rights Act, and then we'll take some questions. So out of Arkansas District Court, we had a pretty big voting rights opinion that found that basically individuals don't have the ability to sue that their rights are being violated under Section 2 of the Voting Rights Act. Now, David. Okay, so the judge who wrote this, first of all, was part of our podcast, our judicial podcast special in December. So friend of the pod with a capital F.

But like a little more than that. He was like my big brother in law school. There's probably no judge in the country who I actually know better. I will not be, even remotely, even a little bit, I can't be unbiased at all. But it was a big opinion and I want to talk about it. I think, and again, I already said, I can't be unbiased. This is Lee Rudofsky in Arkansas. I think this was such a well-written opinion, not because I agree with the outcome of it, actually, but because he's showing his work. And there's so much judicial humility written into this opinion where he says, I don't know I'm right. I know you're going to appeal this. That's why we have appeals, so that other smart people can look at this. I'm doing the best I can. I'm calling it the best I

see it. And let me walk through all of that with you. And by the way, I think you might be right on the merit. I think there is a Voting Rights Act violation here, probably. And the U.S. Department of Justice can come in at any point, sue on this, or intervene in this case, and then we'll get to the merits. But I have to make sure that there is a private right of action under section two okay so this is a vote dilution case basically there's a hundred state legislative districts in arkansas 11 of them are majority black uh some voting rights act activist groups said ah but um blacks make up 16 of the state 16 percent uh 16 of the districts since there's 100 should be majority black.

Remember when we talked about the Voting Rights Act last time, Congress amended it in 1982 to include disparate effect, not just discriminatory intent. That's right. So that's why Lee's saying like, yep, I mean, 11, 16, I see a problem here. But the question is who gets to sue about that? And nobody has ever actually answered this. Now he's saying that it's a jurisdictional issue. That's fascinating because recently in the Brnovich case that we've talked about last term, Justice Gorsuch, joined by Justice Thomas, wrote separately to flag that that private right of action question under Section 2 had not been decided. The existence or non-existence of a private right of action to enforce Section 2,

the cases have basically all just assumed without deciding that they do. Okay, but David, you notice that in Brnovich, they still decided the case, meaning it wasn't jurisdictional in Brnovich. So why is it jurisdictional for Judge Rudofsky? Why couldn't he reach the merits and simply then say like, but also we're not sure there's a private right of action. If the Supreme Court can, why can't a district court judge? This is kind of interesting.

The Eighth Circuit has held that it is a jurisdictional question. if the Supreme Court can, why can't a district court judge? This is kind of interesting. The Eighth Circuit has held that it is a jurisdictional question. In fact, they did like three weeks ago. So Judge Rudofsky has a Supreme Court that says it's not jurisdictional and a circuit that seems wrong saying that it is jurisdictional. So what is a district judge supposed to do? Do they follow the step above the implication of the Supreme them? The implication of the Supreme Court. Or the implication of the Supreme Court. I just think that's super fascinating. For me, the answer I think is pretty obvious. I think you, as the district court judge, you follow your circuit. The circuit is charged with interpreting the Supreme Court.

So if they're wrong, basically you just report to your immediate boss, if you will. Do you agree with that? I, for listeners, I'm having, I have a vexed expression. A lot of eyebrow action. Yeah. I don't know. Let me, let me put it this way. I was very sympathetic to the reasoning in the opinion. I think he took a, it was, he, he, and he, I think he was technically correct that at no point has he been bound by anything truly. And that in many ways, this was, if not quite a issue of first impression, certainly one that is, he had the judicial liberty to explore. And someone needs to, right? At some point we should just say, whether there's a private right or action or not. I understand people are all up in arms that the VRA was set on fire in Arkansas, but don't you want this to be decided at some point? It has to be decided. It has to

be decided. And the question to me was, how much do you read from implication of the existence of previous Section 2 private actions? And there's not a clear answer to that at all. It's fascinating because it pits the history of VRA litigation, where everyone has assumed forever that there is a private right of action, but nobody's actually decided it. But I mean, history, right? All these cases have gone through. Then you have the Supreme Court, two justices saying, yeah, but we've never decided it. Thanks, guys. On the other hand, you have the text of Section 2 of the Voting Rights Act.

Which doesn't explicitly give you a private right of action. It's just totally silent on the issue. It doesn't say one way or the other. And this is where Judge Rudofsky then turns to another section of the VRA that talks about remedies. And I'll just read that section. Whenever any person has engaged or there are reasonable grounds to believe that any person is about to engage in any act or practice prohibited by section 2, 3, 4, 5, 10, or 11,

the attorney general may institute for the United States or in the name of the United States an action for preventative relief, including an application for a temporary or permanent injunction, restraining order, blah, blah, blah. So as he, Judge Rudofsky then writes, that's quoting VRA. So when there are reasonable grounds to believe that a violation of Section 2 is forthcoming, Section 12D affirmatively authorizes the Attorney General of the United States to seek a preliminary or permanent injunction to prevent the violation. But Section 12D makes no mention of private parties, which as noted above, strongly implies their exclusion. This is another problem for plaintiffs, especially considering that injunctive

relief to prevent a Section 2 violation is exactly what they'd seek. It'd be hard to find a provision more on point than this one. He walks through several other provisions that have almost the exact same thing. At one point, they do talk about private parties, but it's talking about how the United States doesn't need to wait for a private party to go through administrative remedies, almost again implying that the private party still had no right of action against the state, but rather that the U.S. government was the one able to sue. They just don't need to wait

for the private party to do anything. I don't, I mean, whew, I think this is hard for me to even decide what I think about it, because I do think the text here, the arguments are pretty strong, but when it actually just doesn't say one way or the other explicitly is that where then the history of us

just having done this for 40 years comes in and the fact that you're left with the possibility that under one political party's administration the department of justice never vindicate section two voting rights act violations and in the other one, they do. So let's end real fast before we open to questions. We began with tactics. Let's end with tactics. So the judge says, and this is something that has not been really widely reported, he says, there are strong merits case that at least some of the challenged districts

in the board plan are unlawful. So he's saying, hey, there's a lot of smoke here. There's a lot of smoke here. And then he says, private right of action, no, but I'm going to invite the attorney general to come into this litigation. You've got five days. You've got five days, attorney general. I've already forecast that there's merits here in support of the plaintiff's case. And what happened, Sarah? Did the Attorney General come in? The U.S. Attorney General did not enter the case, and it was dismissed quite recently. And why would that happen if there was a signal that this was a VRA violation in the opinion? It means the Office of the Solicitor General,

along with the Fed Programs Office, believes that they want to see this go through appeal on the question of private right of action rather than come in and simply moot that question, which I think is interesting, especially given what we've seen in Brnovich and others. I don't know if I'm the Biden administration, I might have jumped in so that you don't have them reaching this question right now. If you think that you could lose on the private right of action question, why let that get finalized? And then there's this whole other issue of all of the delay in the private right of action question being decided. Do you then start to run up to your Purcell problem coming up to your next election after anyway. So tactics matter a ton. 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

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Okay, we have FedSox swag here. James Madison's head is on a quarter zip. Hi, thank you so much for being here. My name is Robert. I'm a 2L. I had a question for Mr. French. I was really moved by your speech on the value of civil liberties and how we don't really have a consistent line in our current two-party system that's standing up for civil liberties across the board. And so that got me thinking really about the ideological drift of the ACLU over the past half a century or so, where they went from, in a sense, defending the absolute free speech rights of the protesters in Skokie to now hiring attorneys who advocate for the burning of certain books

that are against the ACLU's views, or at least their attorneys' views. So I was wondering if you could shed some light on what you think sort of the capitulation of the ACLU from standing up for all civil liberties means for our overall commitment to it. Yeah, that's a really- You and I just talked about this. Yeah, we just had this conversation. Like privately, like not with all of you guys.

Yeah, right. This is not a new story. When I joined FIRE, when I first became affiliated with FIRE in the late 1990s, one of its co-founders is a guy by the name of Harvey Silverglate. And there's a Silverglate here in the audience. There, there. Whoa. Harvey Silverglate. And I believe Harvey was, you're not Harvey Silverglate, you're not, but Harvey Silverglate was, I believe, the president of ACLU Massachusetts, Massachusetts chapter of the ACLU. So why would he feel the need to co-found a civil liberties organization dedicated to civil liberties on college campuses when there's the ACLU and it has a chapter in all 50 states because of this very

issue. There was a real disagreement and a difference of opinion within the ACLU, particularly when it became to the collision of non-discrimination laws and free speech. And this was part of the root of the campus speech code problem, especially in the late 1980s and early 1990s. And so I think what has begun to happen is that the ACLU, in many ways, was at war with itself and still is. And there's some tangible ways in which you see that. So, for example, in the recent, I believe it was, oh gosh, AF, Americans for Prosperity, the donor transparency case. The ACLU weighed in in that case in favor of donor privacy. But then when the Supreme Court decided in favor of donor privacy,

some other folks in the ACLU condemned the opinion on Twitter and then had to take it down later, as I recall, because it was inconsistent with the actual legal position taken by the ACLU. And so what you've seen happen is the ACLU definitely still has elements of it that are defending free speech. And I have known plaintiffs who have gone through local ACLU chapters to vindicate free speech interests, but at the same time, the ACLU for a long time has been quite committed to also becoming not just purely a civil liberties organization, but also a sort of a legal arm of sort of the progressive cultural movement in the United States, and then became sort of the legal arm of the resistance to Donald Trump. And those two things are sometimes in tension with each

other. And that has been a problem for a very long time. And it's one of the reasons why other competing organizations have been formed like FIRE. And again, I'm not going to pretend, Sarah, I'm not biased about, I mean, I'm not unbiased about FIRE. I love FIRE. Greg Lukianoff is one of my dear friends. But I've been proud of over the years how consistent fire has been. And we took, when I was president of fire, we took heat for some of the people we defended, including a guy named Ward Churchill, who I don't know if you remember this case, because it was a long time ago. He was a University of Colorado professor who called the 9-11 victims little Adolph Eichmanns.

Over the top, but protected speech. And so you get a huge amount of heat when you're consistent in defending free speech. And it has been some of the flaws in the ACLU that has led to the necessity of creation of competing organizations. And now what you're beginning to see arise, some on the right, is the marketplace of ideas language that you've long heard on the right, especially when talking about education in the United States of America, is now beginning to compete with some of the moves towards anti-CRT legislation, especially in higher education, where there are more than, I believe, three dozen bills right now proposed that would bring the anti-CRT legislation up to higher education, completely in tension with traditional conservative academic freedom arguments. And so this is something that the ACLU has been dealing with for a while. It's led to the creation of

competing organizations. Those competing organizations are still necessary. And I think the ACLU is still divided. It's not entirely abandoned the field on free speech and other civil liberties, but in due process. For example, it weighed in in favor of a lot of Betsy DeVos's Title IX due process reforms. But it's very much in many ways at war with itself. Yeah, the only thing I'd add to that is, you know, when you do the Skokie comparison, I do think it's interesting. They did the exact same case in the run-up to the Unite the Right rally in Charlottesville. They were denied their permit to have that protest, and it was the ACLU who represented them so they could get that permit, which, as we know, resulted in the death of, you know, a young woman. There's nothing. Can you have

a more clear, skokie example in the modern era than that? So like with most things, right, I think you have to be a little nuanced in talking about the ACLU. I also think their lawyers, I don't know, I kind of like the fact that it's a lot more like a think tank in the sense that their lawyers clearly don't all agree with each other. You know, I tweeted about the ACLU after they said, we'll see you in court, Glenn Youngkin over the mask mandate. And was like, what? Like the ACLU is coming on the side of more government mandates. That's very confusing. And one of the lawyers was like, you know, I do detention, immigration based work and i said like we need more of that aclu that defends you know freedom of speech and freedom of this and he like

liked it was like yeah i was like oh wow i can't believe like i've never worked for an employer that would really let you do something other than the dispatch clearly i meant as a lawyer okay um so yeah i think i think when it comes to the ACLU, you have to be a little nuanced about it and acknowledge where they are doing consistent work. And at the same time, for me, at least as a campaign operative, what I see at work here is the small dollar donation dominance of the extremes on both sides.

And this just happens to be an example on the left, where small dollar donations are driving what I think are more inconsistent social media policy than anything else, right? The like, we'll see you in court, Glenn Youngkin. Okay. I'll be interested to see what that brief actually says. Yeah. Other questions? You are not wearing James Madison anywhere on your person. That's true. Although we do have James Madison socks. Oh!

We call them Fed socks. Actually, my question follows very well from the sort of minor discussion of CRT that you just got into there. I'm a big free speech advocate myself. I've worked for FIRE. very well from the sort of minor discussion of CRT that you just got into there. I'm a big free speech advocate myself. I've worked for FIRE and I'm also a big fan of consistency. And so for David, you've written that so-called critical race theory bands in public schools

are not just legally questionable, but illiberal and anti-American. And so my question for you is, if public schools were controlled by right-wing racists instead of left-wing racists, whether, and taught that white, that blackness is inherently evil and morally inferior rather than whiteness, whether you think it would be illiberal and anti-American for taxpayers to oppose funding that as well. So the question is, you have to look at what the text of the anti-CRT laws are. No, no, wait, because I've listened to your podcast with Chris Rufo.

I'm going to answer your question. But that's not my question. That's not my question. Because my question isn't about the legal status of the... It's not a legal question. It's a philosophical question. It's a question about you writing that it's illiberal and anti-American in principle to oppose this being taught, not whether the laws that they are using. That's not what I wrote. That's not what I wrote. I have the quotes right here. I'm referring to specific CRT laws that have been drafted and passed. I'm not.

Let's not mince words about these laws. They are speech codes. They seek to change public education by banning the expression of ideas. You have to go to the laws, correct? And what you just described was not a fair characterization of the laws. Full stop. So I'm talking about laws that have language, and what you just described is not a fair characterization of the laws.

Full stop. Now, if what you're describing was actually what was happening in any given jurisdiction, you have civil rights laws that come in and apply and would be pretty decisive in exactly those circumstances that you described. If we're going to talk about the CRT laws, which I'm talking about, we need to talk about the text of the laws themselves. What you're doing is a Twitter trick, which is to take one segment of a much larger law or the argued philosophical grounds for a law that has multiple provisions and saying, what's your position on this philosophical position, which is not reflected in the law itself. So we have to deal with the law itself. The laws themselves are remarkably overbroad, remarkably vague, and often hinge speech on the subjective feelings of students and parents.

And that's illiberal and dangerous. I agree that we've got lots of different laws, and I agree that it's important to engage with the laws individually. But your article, which you co-authored with various other people, says that this is illiberal and anti-American. Okay, so I think this is a little bit of a Twitter trick, honestly. If I'm writing about CRT laws that have been written and passed, let's bring it up. Let's talk about the Tennessee law, for example. Let's sharpen the question up a little bit. You are not opposed to anti-CRT laws in principle, then? I would need to see the text of the law. No, in principle. You are not opposed to, in principle, a law that would restrict the teaching

of CRT. We have a lot of people who are looking to ask questions. I think we've kind of engaged with this. Show me a law that you think I should support, and we'll talk about it. But in the meantime, the laws that have actually been passed are overbroad, illiberal, vague, and I think prone to abuse as they've been already quite severely abused, particularly in the state of Tennessee. And the legal hypothetical that you gave about another law that, you know, was about teaching that black people, black skin was bad or whatever, that would be covered by the civil rights law. So that's, you gave an example. So why isn't the civil rights law overbroad? Okay. I think we're moving on to the next question. No, no, sorry. Sorry, Sarah. Listen, you were buddying it up with Ellen Cosgrove here,

who has called members of this organization into meetings and told them that white students will be published. You do not have to launch into a tirade right now. It's not what this is about. So if you would allow someone else to speak, that would be deeply appreciated. I think one of the problems that we've seen on your campus is this idea that you can't talk to, converse with, be seen with someone who disagrees with you politically because of their perceived politics or what you think they believe. That's exactly what we've been trying to fight about what's happening on this campus so the idea that then i am attacked for talking to someone who you think you disagree with

is exactly the problem that y'all have here not okay totally uh changing the subject anyway i like puppies yeah i want to hear you one i'll just try to understand some of the terminology and the phrasing you were using you're talking a lot about the legal tactics and I was wondering are the tactics of lawsuits and you know representing your case before court do you have any recommendations of resources places to go reading that would be useful to do early in your legal career to really understand some of those nuances oh man that is a really good question and the answer to that is i never there i can't think of a single specific reading but what i did was in my litigation career i found good litigators

and i i learned from them and and what you know i took the position, a very humble position of, I don't know, I'm out of law school, I don't know how to practice a case at all. I need to be a sponge. I need to be a sponge of information, which is a great way as a younger participant in any industry, because a lot of people are very happy to interact with people who are eager to learn from them, less happy to interact with people who come in new and seem to be eager to teach them. But one of the problems in the practice of law is it is difficult to find written materials that really provide you with a good tactical understanding of practice, in part because that is also highly individualistic. You have your own strengths and weaknesses. I have my own strengths and weaknesses.

The way in which I litigated cases was designed to maximize my strengths and minimize my weaknesses. So it's highly individualistic. It's very difficult to sort of learn that through a text. And a good reason to clerk. Yeah. Thank you. Yeah. Hi, guys.

Thanks for coming today. I'm a 1L. My name is Toby. Just clarifying question from the heated conversation earlier. With regard to civil rights law, would it be appropriate and would you support, say, a Trump DOJ aggressively seeking to sue schools that were doing things like dividing students based on race to show that whites have oppressed people for however long? Yeah.

So, for example, I wrote in favor of a Stanford EEOC complaint where what was happening at Stanford was you were being, people are being divided into racial affinity groups, for example. Jewish employees were being told that they had to be in the white affinity group. And because Jewishness is the equivalent of whiteness. And this is, you know, this kind of racial division, there's precedent for this. This is the kind of thing where when you're beginning to see very expansive DEI, diversity, equity, inclusion initiatives, they're often just stampeding straight through civil rights precedent. So things like affinity groups, things like compelled speech outside of a strictly classroom assignment kind of context. In the Harvard case, one of the key questions that's going to be asked and answered perhaps in the Harvard admissions case is, does Title VI mean what it says when it prohibits racial discrimination and federally funded

programs of higher education. And increasingly, what we're moving towards is a civil rights regime, as we saw, as we've seen in other cases where this court is saying, these words mean something. And Justice Roberts famously said, one of the great ways to end discrimination on the basis of race is to stop discriminating on the basis of race. And so there is a powerful body of case law that is also, and I'm not going to say there isn't friction at the edges, a very powerful body of civil rights case law that is also compatible with free expression. That there is a difference

between exposure to a bad idea and racial harassment. There's a difference between exposure to an idea you don't like and active discrimination. And the law has carved that out I think pretty effectively. I have some quibbles on the edges but in a general matter pretty effectively. Okay great thank you. Hi thank you both so much for letting us watch your process. This is very neat. I also have a question about your discussion of neutrality and consistency across issues. In both the First Amendment context and in a lot of other contexts dealing with civil and constitutional liberties, it's clear that both sides agree that those

liberties are not unlimited. And so my intuition is that on either side, the response to your criticism would be, well, actually, the differences are the values on the other side, are the interests on the other side of those cases, and that really all we're doing is weighing interests in a lot of these contexts. So I'm wondering if you can talk a little bit about whether the interests on the opposite side actually do make a legal difference and how we can be consistent without making these things unlimited. Do you want to take that take first crack at that? I'm not sure I fully understand the question in other words if you're talking about say strict scrutiny um what is a compelling government interest you know that's a that's a a judiciary judgment call when are you elevating an

issue to for example a compelling governmental interest right I mean, I think probably one response to the social media versus website issue would be in the social media context, the interest on the other side is the interest of is also the interest of free speech. And in the website context, the issue on the other side is the interest in having access to a particular service and those two interests are very different interests does that make a difference well i do i do think you know if you're talking about yeah for example if that would be sort of a weighing of gravity for example of weight uh and but i don't think it's as clear-cut as saying in 303 creative it's just an access to a service because if you're because if you've ever worked with a web designer, you know what's being put out as your website? Your speech. And so this is a web designer

using their free speech skills and their expression and their unique artistic skills to actually facilitate your expression as well. So there is actually an expressive interest in your website, but does that mean that I, just as there is, for example, an expressive interest, there's an interest in sort of obtaining my legal services. Is there an interest there? Yeah, yeah, there's an interest there. But what we have said with the First Amendment, when it comes to what the First Amendment is protecting us from is the government interference in my expression. Government interference. If I'm a private website designer and you're a private citizen, there is no government interference, even though I am denying you the ability to express yourself through me. And so I think that's one of the big issues with the social media companies is that a lot of people are trying to get around that government. They're trying to find a way

to bring the government into the regulation of social media companies expression for the sake of free expression but it's very difficult to do that without undermining the first amendment and one of my my positions is it's very difficult to have a vibrant free speech culture in the united states even if you're just talking culture with an undermined first amendment and with a weaker first amendment yeah i mean i I think the arguments that I've seen that are most compelling to me is that the government did grant the social media companies some sort of government interest, monopoly, whatever you want to phrase it, or that they are acting on the coercion of the government to ban certain people. I am more sympathetic to those arguments. I think

that goes to your point on the, then the interests start rebalancing. You start having a First Amendment concern. There's also the fraud argument that, in fact, these companies say that they don't discriminate based on viewpoint, and that if they say that, then it's fraud when they then discriminate based on viewpoint. I'm interested in those lawsuits. But yeah, I don't think it matters how big it is, if that makes sense. Like one website and one web designer, one web designer's interest versus one person who's not getting their website

design's interest versus a huge multinational corporation and a whole lot of people's speech, I see why it's a much bigger deal. But legally, no, it doesn't change the analysis for me. Thank you. Hi. Thank you both so much for coming. My peers have asked a lot of very substantive questions, so you'll forgive me if I ask a rather less substantive one, which is that, substantive questions, so you'll forgive me if I ask a rather less substantive one, which is that, Sarah, you had predicted possibly a few weeks ago that although Katonji Brown Jackson was still the front runner in your eyes, that Judge Michelle Childs had closed the gap for likelihood of

being Biden's replacement nominee for Justice Breyer. And I wonder, given, you know, some more, I believe, scrutiny being paid, more attention being paid to Judge Michelle Childs' background, if you would still endorse that. And if Biden announces his pick today, and this is moving before the podcast comes out, I apologize. You can cut me. Yeah, I mean, every reaction has a counter reaction. This is, it actually gets to some interesting political strategy and why, you know, you go back to 2012, even 2008 and 16, like these presidential primaries that I worked in, the strategy of wanting to be the front runner versus not wanting to be the front runner. Because as those front

runner positions changed, for instance, in 2012, what would happen is it was like that person then got scrutiny and they gravity took hold and they came back down and then someone else without scrutiny would move up and then they'd get scrutiny. And so in theory, what you wanted was to be the last person to rise to the top without scrutiny and that like they would win the game of musical chairs. So I'm not surprised that as Michelle Childs, you know, maybe moved too early to the front, maybe Cliver and Lindsey Graham and others should have held their fire a little bit longer. But then, of course, you know, you don't want to time it wrong. You don't want that October surprise coming out a week and a half before the election. Sometimes you need it three weeks before

the election. I think they're still pretty neck and neck right now. I would still put Judge Brown slightly ahead of Judge Childs, maybe because of that rebalancing. Maybe I just feel like actually it's been about that the whole time. I thought the late Leandra Kruger push has been really interesting. And those are, it looks like, the three main candidates. It's interesting to me because Judge Kruger, who's on the California Supreme Court, is almost a Goldilocks pick in a lot of ways and might be the person who rises to the top without getting the scrutiny that pulls her back down at just the right time. But did they maybe time it a little bit late? Did they need her to rise to the top a few more days ago

to get that momentum behind her? We'll see, but yeah, I would say it's tightened a lot, but it's still Brown-Childs-Kruger in terms of how I would do my horse betting, which is obviously how we pick Supreme Court justices. Hi, all. My name is Zach. I'm a three. I'm the chapter president of FedSoc this year. I wanted to go back to something you said earlier, David, about what it takes to be a good civil liberties lawyer and how you're likely going to be disliked by someone or anyone or everyone.

At all times. Yeah. And for the students in this room and for the students listening who might feel that way on campuses, I was hoping you could just offer a little bit about what it takes to reach across the other side and be courageous and have those kinds of conversations. Yeah, that's a really great question. I remember coming to, I came to law school,

not this law school because I think they set a land speed record in rejecting me here. But when I went to law school, I was coming from a rural Kentucky K-12 public education, coming out of a very conservative Christian school, and I thought I was entering the land of free expression. And there was no internet back then. I couldn't understand that the shout-down culture was reigning and that it was an incredibly hostile environment for conservative speech. So I very innocently started a pro-life club on campus, and I remember one of the first things that I did was I put out a letter to the

campus that said, the school requires payment, or part of your health fee pays for elective abortion. But if you have a conscientious objection, you can get part of that back. And I gave it to everybody. I sent a letter to everybody, all 1,400 students or whatever. And I remember the next morning coming into my box, and I told them to return their information to my box, and it was stuffed with paper. And I was naive back in that day, and I thought, I just tapped into the latent pro-life movement at Harvard Law School. When I opened the first piece of paper, and it says, why don't you go die, you effing fascist? And several others like, go die. And I mean, they weren't death threats. They were death aspirations.

I'm not going to kill you. I hope something does. But that was my introduction to sort of the discourse and being shouted down in class. And two things happened there. One, that was when I attained, someone asked me the other day, how did you become so attached to the cause of free speech? And the answer is because of that experience, because I saw a culture that despised free speech for a time. It was a toxic, unhealthy culture, and it didn't benefit anybody. I would be talking to some of my friends on the left, and they would tell me they'd grown up in these United States of America and they'd never had a real conversation with an evangelical

Christian in their life how is that benefiting anybody that there's not this kind of discourse so number one I've obtained my dead my devotion to free speech but then number two is you know I really realized you know one of the things you have to do is you just got to listen to people. You just got to listen. And you begin to understand that there's this law called Miles's Law. And it's a law of bureaucracies, but I think it's also a law of human nature. And it's where you stand is based on where you sit. And so one of the things I began to learn was what was the location of a lot of the ferocity for those people I could talk to. Very helpful for me to learn.

And so I actually did develop relationships and I also became committed to the following proposition, which is fight for the rights of others that you would like to exercise yourself. And one of the ways that I was able to bridge some gaps was by doing exactly that, standing up for people I disagreed with who, for whatever reason, had fallen afoul of the ever-shifting free speech cultures in that community. And then the last thing is, look, at the end of the day, liberty has to be defended with courage. You know, we're not guaranteed in the slightest to have an easy experience in any aspect of our lives. And if we're trying to shape a culture that says that everything is easy for me, then what you often end up doing is creating a culture

that makes it less easy for somebody else. And so I think it is in, we cannot maintain a liberty, a culture centered around liberty without courage. And this is a great laboratory for courage. It's hopefully you don't face physical threat here. Hopefully you don't, but it's a great laboratory for moral courage, which is a separate kind of courage. And I think that you should, in a strange way, relish this experience. I look back on my three years in a very small minority, in a three-person pro-life club, in a 20-person Christian fellowship, in a FedSoc that I think my one L year might have been 12 people, as one of the great times of my life, because I didn't lack for a sense of purpose. I didn't lack for an audience that hadn't really heard my message before.

And it was a great training ground to understand that life is not always easy and that there is not always a yellow brick road for your point of view. And sometimes you have to just flat out persevere. Thanks so much for coming, everybody. Really appreciate your time. And sometimes you have to just flat out persevere. Thanks so much for coming, everybody. Really appreciate your time. And David and Sarah, thanks for slacking it out here to New Haven. It takes some courage to get here in the physical sense, too. It's not the easiest sometimes. Thank you.