Advisory Opinions - Defamation Law 101

Episode Date: August 12, 2021

In a jam-packed episode our hosts explore everything from vaccine passports on cruise ships to a shaky argument that eviction moratoriums violate the Third Amendment’s prohibition on quartering soldiers. First up on the docket, Sarah and David dive into attempts by Sidney Powell, Rudy Giuliani, and Mike Lindell’s to dismiss Dominion’s defamation lawsuit against them. Be sure to listen to the end for their analysis on whether a topless sunbathing case meets the intermediate scrutiny test. Show Notes: -Dominion defamation lawsuit -Preliminary injunction on vaccine passports in Florida -Todd Zywicki’s lawsuit against George Mason University -Third Amendment Lawyers Association amicus brief on the eviction moratorium -4th Circuit ruling upholding a ban on topless sunbathing Learn more about your ad choices. Visit megaphone.fm/adchoices

Welcome to the Advisory Opinions Podcast. This is David French with Sarah Isger, and we've got a ton of things to cover. We've got a federal judge ruling in Dominion's defamation lawsuit against the Mos Eisley Cantina of Stop the Steal, better known as Rudy Giuliani. of Stop the Steal, better known as Rudy Giuliani. The MyPillow Giuliani, Powell, Lindell crew from Stop the Steal, a federal judge has spoken on their efforts to dismiss the Dominion defamation lawsuit. We're going to talk about that.

I'm not telling you right now how it turned out. We're going to talk about a really interesting ruling on blocking the DeSantis prohibition and the Florida prohibition on cruise ships asking about vaccination status. We've got a Third Circuit topless sunbathing case to talk about. And then we've got a lawsuit, another lawsuit against a university vaccine mandate, and we might get to more, but let's not over-promise and under-deliver. So let's start with Dominion. Yesterday, a federal judge denied Giuliani, Powell, Lindell, and MyPillow's efforts to dismiss Dominion's lawsuit against them. This does not surprise me, but I think there's some interesting language in there that demonstrates why Dominion's case is, why Dominion has a strong case, and why some of the defenses that have been mounted.

And let's be clear, this was a Trump appointee judge. And it was a Trump appointee judge who basically was scornful about the defendant's arguments. And so, you know, one of the things that I think that was really interesting about this, for example, so one of the defenses is, well, wait, these were just sort of legal theories that that, you know, Powell was advancing and that this, you know, these were ideas or ideas or opinions that she was trying to, you know, put to put into the public square. These were not statements of fact. And I think the judge really did a good job that not just highlighting how absurd some

of this stuff was, but how much these were in statements of fact. So, for example, the court went after Powell a bit for her, as our friend Gabriel Maller calls her so-called election experts. And here's the court. The expert has also publicly claimed that George Soros, President George H.W. Bush's father, the Muslim Brotherhood, and, quote, leftists, helped form the deep state in Nazi Germany in the 1930s, which would have been a remarkable feat for Soros, who was born in 1930. Here's another one. As a preliminary matter,

a reasonable juror could conclude that the existence of a vast international conspiracy that is ignored by the government but proven by a spreadsheet on an internet blog is so improbable that only a reckless man would believe it. Essentially, Sarah, this was sort of defamation law 101. I mean, this was a, there were statements of fact. Here's another one.

Powell has stated publicly that Dominion flipped, weighted, and injected votes during the 2020 election. Either Dominion did so or it did not. And so these were statements of fact. These were not statements of opinion. This was not sort of subject to some kind of ability to prove in litigation. These were either this happened or this didn't happen. Anything about this ruling surprise you at all? I'm not surprised that they didn't get rid of it on this motion to dismiss. Full disclosure, my husband represents Fox News and related litigation. But I think that there is an overall problem, way to distinguish some of these cases. You have the Powell, Lindell, Giuliani section of these lawsuits, bucket of these lawsuits.

These are the people who claimed to have the facts and went on TV to say the facts. Then you have the bucket of lawsuits that are Newsmax, OAN, those are recently filed, Fox, where you have journalists, media organizations having those people on to say the things that they were saying. And again, my husband represents Fox, so I have a conflict here. But I think the journalist media ones have a much steeper uphill climb when you have a guest on from the president's legal team who is saying X, Y, and Z, and you're reporting on ongoing litigation versus you are the one actually saying, I have the facts and this is what happened. So it'll be so interesting to follow these cases

as they keep going because I think we're going to see a divergence in how the two buckets start trending here pretty quickly. Yeah, a lot is going to depend on how much, you know, on the fact and the factual side of things between say a Newsmax OAN and a Fox, how much was, here's Powell, here's Lindell, here's Rudy, making claims that they're making in court and repeating them on the airwaves versus here's what a personality of the network said, uh, in their, in their capacity as an employee of the network,

um, during a network broadcast. I think that, you know, bringing on there's a, there's definitely going to be a distinction between bringing on the guest to hear the guest repeat claims the guest has made in pleadings in federal court versus what had, what did Tucker say or what did Hannity say. And that's going to be part of what's going to be parsed out in these cases and the legal analysis and then if it gets to it in discovery, etc. But yeah, I completely agree with you

that the most vulnerable parties here are Rudy Powell, Lindell, my, you know, my pillow. It's interesting. They there's the litigation is against my pillow as well. Um, and I do think that they are clearly the most vulnerable, um, because these were the statements that they made in their, you know, and they stated them not as maybe, sort of, whatever. They stated these things as directly as they can state them. And Lindell is still out there. He had this cyber summit over the last couple of days where he was going to finally deliver the goods.

He was finally going to deliver the goods on Stop the Steal. And spoiler alert, he had no goods. So it was, I do think you're exactly right on distinguishing between these two groups of people, the ones who went out there and he said in public, in a network TV, on their own press conferences and their own, you know, their own social media feeds stating these false things as fact are the most vulnerable parties. And you also have, there's a reason these cases are going to be really interesting, and we're going to be talking about them more as they proceed into actual,

you know, hearings. But you also, though, have sort of a lawyer privilege. You're bringing this case, you're presenting it in court. You know, Rudy Giuliani was disbarred or suspended. I forget what. But, you know, the bar dealt with this. Disciplined. Disciplined. Disciplined. And so I think you can also distinguish between you were a lawyer bringing a case has certain privileges in court and in litigation. And then it's up to the bar. You know, you can sanction them in court. The bar themselves can then discipline the attorney. see how defamation law works at a really weird intersection of litigation and then media and journalism reporting and commenting, as you said, on that litigation when it's all clearly, objectively newsworthy. This is the president's legal team. It's not like you can say like, well,

why were they talking about it in the first place? Everyone was talking about it, CNN, MSNBC, et cetera. So there's a lot here that I find legally fascinating. And I think it's very easy at sort of a 30,000 foot level to say, obviously defamatory. Dominion was not, I don't know, printing ballots out of bamboo from China that were paid for by dictators in other places. That's actually not what this case is going to turn on, on any of them. It's going to turn on these privileges of litigation on media, on the First Amendment, and on a whole bunch of other stuff that I haven't seen a whole lot of people dive into yet. And so as some of these hearings move forward, I think there's gonna be a lot to talk about. Yeah. And one of the interesting aspects of this as well is that this was not normal litigation either. In other words, this was not a lawyer filing a case. And then, you know,

sort of at most engaging in, you know, doing some local media or doing some media, answering questions about the lawsuit. This was lawyers filing a case and then lawyers speaking at rallies. So some of the defamatory statements would be like at a Stop the Steal rally, Sidney Powell in Georgia, where she said Georgia had performed a hand recount in one small precinct instead of the entire state. And that they flipped the votes 52%. They weighted Biden votes at 1.52 and weighted Trump votes at 0.48. I mean, this was just stuff that was completely made up, just totally false. And it's not in a plea. It's not something that she's arguing on behalf of a client who's making that statement.

She's at a political rally. I think that's going to matter a lot, by the way. If that claim is in a pleading, I think it will be privileged differently than if none of that appears in any of the litigation pleadings, and she is only stating it outside of the pleadings. Yeah, it's going to be very interesting to compare the pleadings with the public statements because there's all kinds of stuff where she goes on places, you know, like the John Frederick show,

and she says, here's one of the things we know is. And, you know, and she says she's making these affirmative declarations of fact, and it's going to be very interesting to make that comparison. So, yeah, this is something that there's a lot more to it than just, did she say true things or did she say false things? And I think that's important that you highlighted that, Sarah.

That's not the end of the inquiry. It is not the end of the inquiry if you can show that what she said was demonstrably false. Inquiry. It is not the end of the inquiry if you can show that what she said was demonstrably false. You know, otherwise you could have lawyers who are arguing on behalf of their client and their client is defending themselves. Or, you know, or is maybe the client is pressing a claim that turns out the client's claim is inaccurate. The client's claim is false. Is the lawyer then liable for the client's false statements? You know, so it's a lot, it's a, it's a, it's a very interesting case that you're going to have to peel like an onion to determine sort of what is it that is Sidney Powell's client? What is it that Sidney Powell, at Sidney Powell, what is it that is Sidney Powell's client? What is it that's Sidney Powell at Sidney Powell?

What is it that's litigation? What is it that is just flat out making stuff up in a speech? I mean, this is going to be very interesting. And there'll be plenty more of it. Yes. All right. Should we move on? Next case, speaking of very interesting. Yes. All right. Should we move on? Next case. Speaking of very interesting.

Yes. This one is, okay. So this case is called Norwegian Cruise Lines Holdings versus Rifke's. Judge Kathleen Williams, I believe an Obama appointee, issued a preliminary injunction appointee issued a preliminary injunction on Florida's ban on businesses asking for or requiring proof of vaccination. So this is a cruise line challenging Florida's ban on businesses requiring proof of vaccination. So this is what you might call the vaccine passport ban. In this case, it's interesting. So she issued an injunction. So she's blocked the ban and she blocked it on two grounds. One, First Amendment. First Amendment.

Now, this is interesting. I did not see this one coming, Sarah. So here's a quote from the opinion, and I would love to get your thoughts on it. So it says, the ban, section 381, blah, blah, blah, is a content-based restriction because on its face, it draws distinctions based on the message of the speech. In other words, it is apparent from the text of the law that speech is regulated differently because of its subject matter and content. The statute prohibits businesses from requiring their patrons to present documentation certifying COVID-19 vaccination or post-infection recovery for access to services.

However, nothing in the state prohibits businesses from demanding documentation of a negative COVID-19 test or any other type of medical or informational documentation. So what she's saying in layman's terms is they're just aiming at preventing these businesses from engaging in a particular kind of speech around the vaccine. They're not limiting businesses from engaging in particular kinds kind of speech around the vaccine. They're not limiting businesses from engaging in particular kinds of speech regarding other kinds of health information, just the vaccine.

And because this is vaccine-targeted, it's content-based, and it fails. Huh. I'm very curious what you think about that. I think that might be right. Interesting. It's weird in the context because there's so much else wrapped up in it.

But this does appear to be speech and it does appear to be content specific. Content not neutral. What do you think? I, you know, you know so yeah first i mean yeah this is really interesting because as we know and as we've discussed in the commercial speech context there are many ways in which the government has a lot of control over commercial speech. It can even compel commercial speech. It can compel you, for example, to provide health information, to provide ingredients. Right, the calorie counts are always a good example, ingredients, but also in advertising. There are certain things you can't or can say in advertising your commercial entity, especially lawyers, for instance. Right, right.

I mean, so there's in the commercial. You can't even name your business certain things if you're a law firm. Right, exactly. So in the purely commercial speech arena, the state has a lot of ability to regulate that. And so what is interesting to me is that the judge took this out of and seems to have taken this largely out of the commercial speech arena and treated it more the way you would treat, say, you know, not quite political speech, but took it out of that high degree of deference given to regulation of commercial speech. And that's the thing that I think is most interesting about this. And I think the reason why, if you're going to really sort of get into this case,

I don't think the judge really treats this as a health regulation. Correct. Well, and you get to this part at first blush, section 381, 316 appears to prohibit businesses from requiring patrons to verify their vaccination status for entry or services. That might be something more like the commercial speech restrictions that we're talking about. However, a review of the text shows that nothing in the statute forbids businesses from doing so. Instead, the statute only disallows businesses from requiring customers to verify their vaccination status with, quote, documentation certifying COVID-19 vaccination or post-transmission

recovery. Accordingly, businesses could still require customers to provide oral verification as to whether they have received a COVID-19 vaccination. So his point here is that you were under-inclusive. Yeah. Yeah. Yeah. You know, it's as if the judge is saying, come on here. Everybody knows this law was political posturing. You know, and so when they're looking at, for example, you know, that's the thing, is that under Section 381, the only documentation you can't demand is the vaccine documentation. all of this other potential health information that they still can demand, it really is, what the judge seems to be saying is, I'm on to you. I'm on to your game here. We all know this isn't sort of a standard commercial public health kind of law. This is a piece of culture war legislation. Yeah, there's this great line where he says, when a state, he's talking about the Dormer Commerce Clause argument,

when a state statute regulates even-handedly to effectuate a legitimate local public interest and its effect on interstate commerce are only incidental, it will be upheld. Unless the burden imposed on such commerce is, italicized, clearly excessive in relation to the putative local benefits, i.e., this law is stupid. Yeah.

That might be a problem in terms of what's going to happen on appeal. what's going to happen on appeal. Yeah, this is interesting because I don't know what's going to happen on appeal because it has to an argument, a First Amendment argument that on first blush, you're saying, wait a minute, I think this would be more where the state is its maximum level of power, its commercial speech in a public health context. And in that circumstance, and this is something we've talked about before, in this circumstance, courts often sort of back away from that. And that's where the state is sort of at the apex of its police power when you're talking commercial speech, public health, courts back away. That's been sort of part of the element of pandemic laws, public health, courts back away. But the sort of part of the element of pandemic laws public health courts back

away but the judge here seems to be saying come on public health seriously was i born yesterday yeah i mean at one point defendant fails to articulate why these are legitimate local purposes oh okay yeah yeah and so it's's essentially what Florida seems to be saying is, and you know, and, and Florida's best argument is public health, hands off, public health, hands off. And the judge is saying not public health, hands on. Yeah. I mean, he's disagreeing that this has anything to do with public health. I think Florida's argument that it sort of has to do with public health because they're trying to prevent discrimination against unvaccinated persons. And the judge says, OK, but without more, that's not going to fly. And I think that's the crux of where this lives or dies in the 11th Circuit is, to your point, David, if the state is that sort of its zenith of power, saying we're trying to prevent discrimination against some of our citizens based on a health fact, might be enough. And the judge saying without more, maybe there doesn't need to be more. maybe there doesn't need to be more.

At the same time, when what you're requiring isn't vaccination, as we'll talk about in another case, but in fact requiring not vaccination in some sense to be okay, the fact that these two cases, our next case being requiring vaccination, I don't think you can have this both ways. Yeah, it's going to be fascinating. And this point where he says businesses could still

require customers to provide oral verification. So if you're really trying to prevent discrimination against the unvaccinated, but you're still allowing people to you're still allowing businesses to provide oral verification. Which I feel like is a willful misreading of the statute. It says you can't force them to provide documentation. I think implicit in that is they can like, fine, I guess you could ask them orally and then they can lie to you. But I think it was implied like, no, you can't inquire into someone's vaccination status or deny them services because of that. I think the judge is kind of reaching on that one, frankly. Interesting. Interesting. Yeah. Well, I'm going to be, you know, I'm going to be extremely interested in how this goes on appeal because I will be honest with you.

I did not see the First Amendment argument as a winner when, you know, in first analyzing this case. The judge's reasoning has raised my eyebrows. But I mean, look, so we also have a problem, right, where I agree, or, you know, I disagree with the policy. And so sometimes in that case, I am more likely to try to steel man it too much, if that makes sense. Yeah, yeah.

So we'll see. I mean, what... Just everyone go get vaccinated, please. Yeah, it's I you know, I think it's I think that the law is really dumb and cultural or posturing. But there is not a constitutional doctrine that says I can if I can prove really this is cultural or posturing, I win. Right, right. This is the quintessential, perhaps Scalia stamp, dumb, but constitutional. Right, exactly. And we have actually, when we've talked about this, we've said that before. We've said, you know, wait a minute, this is where the state's got a lot of discretion here. And, you know, in the state has a lot of discretion to regulate in this arena and it's

going to be hard even if you think the law is really ridiculous and counterproductive especially on a freaking cruise ship for crying out loud like the idea that you can't require proof of vaccination to get on a giant floating Petri dish is unbelievable to me. But as you said, stupid and constitutional is still constitutional. I was intrigued by this reasoning. I'm not entirely convinced by the reasoning, but we shall see. We shall see. We shall see. So related, if we'll just skip to the other vaccine case,

Todd Zwicky, a professor at George Mason University, has sued trying to invalidate their vaccine mandate, saying that he had COVID and therefore he has natural immunity and that their vaccine mandate therefore is stupid.

Speaking of stupid things. His doctor advised him that the vaccine could harm him, it says, and that this violates his constitutional rights, that it doesn't pass even rational basis review because they have a study, for instance, saying that the natural immunity you get from COVID-19 could be better than vaccine-based immunity.

And so he doesn't want to take the vaccine. So to start with, Todd Zwicky is a well-known conservative law professor. He is also, uh, I call them like clerk cousins. So the Jones chambers, Edith Jones and Jerry Smith share a communal eating kitchen area. And so even though we don't share chambers exactly, Todd Zwicky is a Smith clerk and therefore i consider him a clerk cousin but david i i don't think so uh so they they have for instance a johns hopkins professor which says natural immunity is 6.7 times greater than for vaccinated people. Okay, fair enough. But I would like to point out

that I had chicken pox twice. And if you're asking why that's relevant at all. So remember, you're only supposed to have chicken pox once. So if I had chicken pox, which I did, and I went to the school and said, now they have a vaccine. They didn't back then and said, oh, I don't want to take it because see, I had chickenpox. Some people's immunities are different than others. It's not the same, whereas the vaccine provides a standard immunity. Now, we also know that the vaccine's efficacy decreases over time, that people may need booster shots. There are all sorts of things related to COVID-19

and vaccine mandates, mask wearing that are imperfect. But no, I don't think for a second that this lawsuit will win based on the natural immunity argument that somehow the vaccine mandate doesn't pass rational basis review um and yeah frankly it's because of my chicken pox theory well i mean and the idea the very idea that by him putting forward a study claiming that national that natural human immunity is superior as if that has been a set a matter of settled science to such an extent that it any contrary governmental policy is going to not pass rational basis review while we're still in the freaking pandemic is no way. I mean, no way. I just, you know, this is the kind of lawsuit that.

On the flip side, by the way, for those who think like, I just want to point out, the CDC has a study that says unvaccinated people are twice as likely to get reinfected with COVID-19. Right. So, I mean, and rational basis review, you're going to be able to point to all these, whatever you want for studies showing that natural immunity is better, as long as they can point to one CDC study showing that in fact it is not better, but twice as likely to get reinfected, that's the ballgame. You know, it is, there's been a little bit, if I can vent for just a moment, there's been a little bit of a cottage industry, and this is the negative partisanship thing that we talk about a lot. There's been a little bit of a cottage industry of digging up who wrote what about anti-vaccine

movements when. Yeah. And what you're going to find is some folks who are leaders, publishers, editors, et cetera, and some publications that have done quite a bit on, at the very least, condemning any sort of vaccine mandate, much less perhaps publishing people casting real doubt on vaccine efficacy and strongly defending vaccine resistance. Back when vaccine resistance was seen as sort of this crunchy thing that people did in Marin County or, you know, something that they did on the outskirts of Los Angeles, you know, with like vegan communes or whatever, if there's such a thing, um, man, thundering against it, thundering against this unbelievably irresponsible

anti-vax movement. The minute, the minute it's, it becomes fashionable and in far right circles to be hesitant about the vaccine or outright refuse, the tune changes. And then it's all about bodily autonomy. It's all about individual privacy. I mean, I even saw somebody talking about, look, with all the sacrifices we ask of our soldiers and talking about the Pentagon's looming COVID vaccine mandate, how can we ask them to give up their bodily autonomy in connection with their service and their right to medical

privacy? And I'm like, what are you talking about? Before I deployed, I got in a line and I got a battery of shots that I didn't even know what all I was getting. I just knew I had to get them. And the two I remember is one was the anthrax shot because that hurt. Oh my gosh, the anthrax shot hurt. And then the other one was the smallpox shot. Now I'd already been vaccinated against smallpox as a kid, but because the little vaccine scar, the smallpox vaccine scar that you get had disappeared, they couldn't see the visual evidence. They gave me another one.

And yeah, it hurt so much and got so inflamed that I wanted to write a, for about the first three weeks of the deployment, I wanted to write a memoir called Me and My Smallpox Sore Go to Iraq. It was that, it was bad. Nancy could tell you, like I called back, I sent, I took a picture of it and sent it back, show this to the doctor. But yeah, this is, it's, it's amazing what is happening out there. Just amazing. And it reminds me of stop the steel in the sense that the arguments made are so specious. The arguments, they're the kinds of things that can sound intelligent until they're exposed to the slightest bit of scrutiny and then they just start to collapse. It's really extraordinary. It's just absolutely extraordinary that this has become part of the right side of the political spectrum. Rant over. that this has become part of the right side of the political spectrum. Rant over. Okay, David, do we do Third Amendment

or Third Circuit next? You choose. We got a lot of emails about the Third Amendment. Yeah, you've got a whole rant on. So it's me rant off, you rant on. Okay, let's just remember what the third amendment says. Shall we just take a walk down memory lane circa 1789. No soldier shall in time of peace be quartered in any house without the consent of the owner,

nor in time of war, but in a manner to be prescribed by law. Now, a lot of people are Third Amendment fans. Why? Because it's never been applied to the states for obvious reasons. It just can't really come up in law very often. And so people are always on the lookout for any situation in which we can talk about the Third Amendment, the forgotten, lonely, little Bill of Rights Amendment. Enter the eviction ban.

So the Third Amendment Lawyers Association filed an amicus brief arguing that the CDC eviction moratorium violated the landlord's constitutional rights by forcing them to quarter soldiers. Let me read you part of the brief. Plaintiffs seek to recover possession of their properties from tenants who have failed to pay their rent. Ordinarily, the eviction process would play out in the courts. The CDC eviction moratorium prevents this. And they cannot resort to self-help. Parentheses, under early common law, landlord was privileged to enter upon his land and recover it by force, using violence if necessary. However, this privilege was modified as early as 1381

when a statute was passed making such forcible entry a criminal offense. This criminal statute was accepted as part of the common law or reenacted by nearly all of our states, end parenthetical. As a result, plaintiffs are being forced to house individuals, i.e. quarter them without their consent. Given the size of the population at issue, quarter them without their consent. Given the size of the population at issue, some of these tenants are bound to be soldiers. To the extent the CDC moratorium prohibits evicting a soldier,

it runs afoul of the Third Amendment. This constitutionally significant issue warrants this court's attention. Does it? Does it warrant this court's attention? So, first of all, factually, no doubt they are correct that some of the people benefiting from the eviction moratorium are most likely soldiers. Someone also pointed out that it is quite possible that the Third Amendment could

also apply to police officers. Fair enough. You know what? I'll just give you that one. We won't even argue about whether that's true or not. And that, yes, the eviction moratorium probably has also affected some police officers. It doesn't matter. Because, let's go back to the text. No soldier shall in time of peace be quartered. So unfortunately for our third amendment,

uh, drafters, they did that in the passive voice, but who is doing the quartering matters and what quartering means matters. If we go back to our brief, they simply say that plaintiffs are being forced to house individuals, i.e. quarter them without their consent. Look, guys, the Third Amendment clearly implies that the government is quartering soldiers in your house. That's not what's happening here. That's not even remotely what's happening here.

The fact that some of the people happen to be soldiers is so wholly irrelevant to the Third Amendment. I appreciate the effort. I am a huge Third Amendment fan. I want it, guys. I want that case to arise. But this isn't it. The government is not quartering soldiers in people's homes during time of peace or war. By the way, another thing we could argue about of whether we're in peace or war, as long as the AUMF is in the authorization use of military force still in effect, though it is looking to be repealed. Regardless, David, do you have any disagreement with me? I, Michael, my only question is, I think you're unquestionably correct that these soldiers are not being quartered in these apartments, in their own apartment. Um, and so here's my question. It was, was this filed for fun? I hope so. Because if so, like I'm here for it.

I do find it fun. I love that we're getting to talk about the Third Amendment on the podcast in like a real way. Yeah. Yeah. But I wish if it were filed for fun, I wanted more.

Right? Then you need to go through why someone who has a contract in the form of a lease who happens to have a job as a soldier, why that is going to fit into the common law definition of quartering? Look, do it. Like, if you're in for a penny, in for a pound, man.

I wanted a lot more if this was for fun. And if it wasn't for fun, then it was poorly executed. Yeah, well, I would say if it was for fun, it needs to poorly executed. Yeah. If it, well, I would say for, if it was for fun, it needs to be more over the top. Yes. Like, yeah, if it's for fun, what it needs to be is about, you know, 20 pages of the depredations of British regulars on the colonists prior to the revolution. And then like maybe a paragraph on, and that's why. So like make it, you know, just go over the top with it.

As it was, it's like, and there's a school of trolling that says the best trolling is the troll that you don't know that you can't really tell if it's a troll. That's what I wanted. I don't want puns. I wanted to be like so over the top, sincere and aggrieved and emotional that it's a I wanted. I don't want puns. You know, I wanted to be like so over the top,

sincere and aggrieved and emotional that it's a real question. Yeah. Interesting. See, I want, yeah, I wanted it to be so over the top that it was almost like the onion filed a brief. But that might be deemed disrespectful. So yeah. But that might be deemed disrespectful. So, yeah. Maybe. I mean, it is the Third Amendment Lawyers Association, which I don't know a lot about them. And I'm sure listeners will let me know. My guess is that they have a decent sense of humor about themselves.

Well, either that or they're unbelievably arrogant because they're arguably the most successful lawyers association in the history of the United States because who has dared cross them in more than 200 years? So true. But also listeners, please stop emailing me about this. I mean, the number of sincere emails that were not, that were very serious, like, no, no, Come on, guys. AO listeners, be better. No, yeah, please. Now, okay, this one,

I don't know what you think about this. Ooh, exciting. I'm getting to hear your opinion on this case for the very first time live on the air. And this is a case that hit the national news a couple of days ago. The Third Circuit decided on whether or not it violated the Equal Protection Clause to prohibit topless sunbathing for women at public beaches and not for men. So Sarah, go. Okay. Let's start just from a fact basis. First of all, I think many beaches would benefit from men having to wear tops as well. Let's be

honest, America, this is an obese country. Maybe everyone should be doing more at the beach, not less. But legally speaking, when it comes to gender distinctions, we use the oft maligned, and for good reason, frankly, intermediate scrutiny. So remember, we have strict scrutiny at the top, rational basis at the bottom, and then intermediate scrutiny, which, I mean, yes, there's two prongs to it, but frankly, it's whatever you want it to be. So intermediate scrutiny, also known as heightened scrutiny, has to further an important government interest and must do so by means that are substantially related to that interest. So in this case, the important government interest would be sensibilities. We consider breasts to be kind of a form of genitalia, and therefore we don't want to offend people's sensibilities. And this, no doubt, definitely

passes prong number two. This is substantially related to that interest. Making women cover their breasts fixes the problem. The Third Circuit was unanimous in finding that it did pass intermediate scrutiny. However, one of the judges said that perhaps we were being a bit blinded by our current cultural lens and that it's something that should be looked at because after all, what if a US neighborhood community said that they wanted women to cover their hair, faces, mouths, ankles, wrists? That in some ways is kind of similar

because breasts aren't actually genitalia. Men have nipples too, even if they can't breastfeed with them, I suppose. But it's not like we just say breastfeeding women. So it all hinges on that first prong. Does this further an important government interest? David, to get to my opinion, yes, of course it does. Of course it does. I was waiting with bated breath. Look, this is a little bit like pornography. You know it when you see it. It is very hard to come up with an intermediate scrutiny test that can capture gender differences in a meaningful way. gender differences in a meaningful way. So yeah, we have to use sort of the median societal standard. And there is no question that not only in throughout the United States, but actually throughout the world, women's breasts are considered to be different than men's breasts. That doesn't mean that you can't have bare breast beaches.

God knows the Europeans do. And in America, you could as well if that were voted on by the community. And that would also pass any scrutiny that you would want. But the reverse has to be true as well. Now, so does that mean that you could have women covering their hair, ankles, wrists, etc.?

No, because that is not the median societal norm in our country, nor is it throughout the world. Again, not that I care what the world thinks. I am not one of those international law people. But I think it is relevant to whether it's a rational community standard in some respects, certainly when it backs up your theory as it does here. There, that's what I think. I'm with you. I'm with you. The fact that there is such a thing as a slippery slope means in this circumstance, well, you got to go down that slope a bit before the ankles, the head coverings, and all of that. If you're going to get there,

no, that's not going to pass. That's not going to pass, um, you know, any kind, any kind of reasonable intermediate scrutiny. But, you know, this sort of goes to, you know, what about, for example, can a municipality still say that a, um, workplace over a certain size must have a male, uh, a man's restroom and a women's restroom. I mean, this is one of the fundamental aspects of the equal protection clause is that you have to be similarly situated to be treated similarly. And that there are differences between men and women and differences in the mores applicable to men and women, that means that sometimes you're not as similarly situated.

So yeah, I completely agree with you. And I also have a request. Normally we don't ask legendary producer Caleb to title the podcast. We leave it completely up to Caleb. Sometimes we say, hey, this phrase, please do this. But I have a one that is a please do not title. Please do not title this podcast, Men Have Nipples Too.

I mean, to quote an all-time great movie, can you milk me? Yeah. Meet the parents, right? That's right. Yes. Yes. Oh my gosh. It's so funny.

Can You Milk Me, Greg? Can You Milk Me, Greg? Oh my goodness. All right. Please stay with us on Monday. We're going to have another special guest, and this is going to be a lot of fun. So stick with us. Come back on Monday, another special guest in our Off Topic August. Not entirely off topic because our Thursdays, we've still been dominating the legal conversation, but this next Monday will be

an off part of off topic August. So please join in, tune in on Monday. Please rate us on Apple podcasts. Please subscribe on Apple podcasts and please check out the dispatch.com. We will talk to you next time. And we'll take a quick break to hear from our sponsor today, Aura. Ready to win Mother's Day and cement your reputation as the best gift giver in the family? Give the moms in your life an Aura digital picture frame preloaded with decades of family photos. She'll love looking back on your childhood memories and seeing what you're up to today. Even better, with unlimited storage and an easy-to-use app, you can keep updating mom's frame with new photos. So it's the gift that keeps on giving. And to be clear, every mom in my life has this frame.

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