Advisory Opinions - Defamation Vibes

Episode Date: February 14, 2023

Ron DeSantis wants to make open and slacken up national libel laws and, as always, it gets complicated. Sarah and (host emeritus) David try to help out. Also: Meta  gets sanctioned! Show Notes: -Advisory Opinions: The Problem with "History & Tradition" -Fl. Gov. DeSantis floats legislation that would make it easier to sue news outlets -Reuters: Sarah Palin's legal fight with NYT -4th Circuit panel grants Stein injunction against criminal charges -Reuters: Meta, law firm Gibson Dunn sanctioned in Facebook privacy case -DOJ says end of health emergency will terminate Title 42 policy and moot Supreme Court case -David French for NYT: Men Need More Purpose Than Respect Learn more about your ad choices. Visit megaphone.fm/adchoices

You ready? I was born ready. Welcome to Advisory Opinions. I'm your host, Sarah Isger, joined by host emeritus, David French. Actually, co-host emeritus, David French. This was suggested by a listener, and I think I like it, David. I like it. I like it. It actually has some dignity to it, unlike some of the suggestions from listeners, like former discarded onto the trash heap of history host yeah it captures the role you used to play here the authority you used to have and befitting by far my old the oldest

person on this podcasting team by miles so like emeritus yeah yeah underline bolded emeritus all the seraphs. All right. We are going to talk actual malice standard libel defamation, both a case out of the Fourth Circuit and a proposal by Florida Governor Ron DeSantis. What does all that mean? What are the arguments for and against? Also, a major law firm gets slapped with sanctions what does that mean is it important also i just want to talk litigation strategy here for a little bit finally scotus has many big cases

this term but two of them risk being mooted out or digged or who knows what. So I want to talk a little bit about that before it happens. And finally, David, I think we'll end with a little bit of masculinity, if that's all right. That sounds good to me. Talk about masculinity. Talk about masculinity. I don't know how you'd end a podcast with masculinity. I don't know. We'll find out. All right, let's go. So David, when we talk about libel, and we've done some deep dives into this before, but the standard is that it needs to be false.

And if you're a public figure, it needs to have been done with actual malice and we talked about this a ton around the Sarah Palin case against the New York Times they published something that was clearly false about her and so the trial turned around whether the false statement was published with actual malice the jury came back and said no it did not meet the actual malice standard. We have at least two justices on the Supreme Court that are interested in that. You know, Justice Thomas, not surprisingly, saying that the actual malice standard

is wholly judicially created. But now we have Governor Ron DeSantis of Florida saying that he wants to propose a bill to the Florida legislature that will change libel laws in the state, lowering the standard, though all we got was a stay tuned for the details on that. David, I just want to get you to give us some lay of the land. Where's defamation law right now in the country And what do you think of the standard that is currently applied? Yeah, that's a really good question. So basically, defamation law is different depending on who you are. So if you're a public figure, I think Sarah and I, you and I would qualify as public figures, at least limited purpose public figures in the areas in which we communicate.

David, I got bad news for you. I don't think we're limited purpose anymore. We're public figures, right. I think we're full on. I think we can be libeled on any topic at this point. I think you're right. So basically, if you're a public figure, then there is a higher, you have a higher standard,

a higher burden of proof that you have to bear to recover damages for defamation. And that standard is exactly what, Sarah, you said, which is you have to show that a statement was made either with the knowledge that it was false or with reckless disregard for its falsity, which is termed, that standard goes by the term actual malice. And the malice would be the knowledge it was false, or you have complete reckless disregard

for its falsity. And that's what applies when the root, the origin for that is a case called New York Times versus Sullivan, 1964, comes from the Brennan Court, it is or the Warren court and it is a um it's what we've been operating under in the world of media for almost 60 years now now if you're not a public figure and a member of the media says something about you that's false you don't have to prove actual malice you can can prove, depending on the state law in question, you can recover damages if somebody says something that's false and negligently false. In other words, there's no actual malice, no knowledge, no reckless disregard, there's just negligence. So this has been controversial for some time on the grounds

that it has enabled an awful lot of press malfeasance. And it's defended on the grounds that in the absence of such a standard, you could have wealthy, powerful individuals in government, in private industry, just essentially suing a free press into oblivion. So also let's add one other piece to this. So you have different standards depending on whether you're a public figure or a private figure. And also there's a different standards depending on what state you live in, because depending on the state, there might be something called an anti-SLAPP law. S-L-A-P-P. SLAP stands for Strategic Lawsuit Against Public Participation. And what that is,

is it is trying to guard against wealthy individuals, powerful individuals, suing people constantly to try to deter them from speaking out or reporting news. And so what an anti-slap law does is it gives a defendant an opportunity to file what's called a slap motion or an anti-slap motion to have a summary proceeding to get rid of the case. So many states have these anti-slap laws. So if you're a reporter and you write a story and you write it in good faith and the first thing that happens is this wealthy, powerful person that you've written a story about files a lawsuit against you, you can not only have the benefit of the New York Times v. Sullivan standard, you can sometimes have the benefit of a SLAPP law and have the summary proceeding. And

in most SLAPP laws, if you win, you get your attorney's fees. So I've actually filed a successful slap, anti-slap motion, Sarah, in my day where we won, we got our attorney's fees defending against a defamation claim. And so that's the general lay of the land. And Trump in 2016 indicated that he might want to do something about these defamation standards. DeSantis in 2022 is indicating that he might want to do something about these defamation standards. And Justices Gorsuch and Thomas have indicated that they might want to do something about these defamation standards. And so that's a lot of filibustering there, Sarah. I'm really curious about your

takes. Okay, so let's divide this into two different conversations. One is what the legal standard should be, but the other is really a public policy argument. How do we want to determine the balance between politicians, the government, individuals, and a press that isn't afraid to publish things, but also isn't going around saying false things about random people or people who are running for office for partisan reasons, for instance, or whatever else. I think there's really good arguments all along the spectrum there. I think there's really good arguments all along the spectrum there. So on the legal side, though, there's not much question that the actual malice standard is made the F up, as the kids say. I mean, that's coming from nowhere.

And the distinction between public figures and non-public figures is pretty difficult as well. You know, you talked about, for instance, a limited public figure. Yeah. And what happens if, for instance, you didn't voluntarily opt to become a public figure? I think, you know, sort of the most famous example of that is Nicholas Sandman, the high school student who's visiting D.C. Sandman, the high school student who's visiting DC, and there's pictures taken of him on the mall facing a Native American man. There's a whole bunch of controversy around that picture that he's the aggressor in this situation and all sorts of stuff, all from this photo. Well, he wasn't a public figure before then. He certainly became a public figure.

But how much do you need to voluntarily become a public figure? And then what about the fact that he kind of leaned into it afterwards and now gives speeches and does interviews about it? So now he's a public figure. And I just mentioned that not because of Nicholas Sandman, who, by the way, did file several lawsuits

that were all settled. I think much to his... He lost one. He lost his suit against the Times. That was thrown out. So he lost some and settled some. Yeah. Yeah. Yeah. This is not a commentary on anything about him, but rather a really good example to me of the complicated nature of what a public figure is, or even a limited public figure. And that surely the media, and I don't necessarily even mean reporters, social media, whatever else, thrusting you into the public eye shouldn't raise the standard for you to then win a libel suit. But then what happens if you lean into it afterward and all of that?

a libel suit, but then what happens if you lean into it afterward and all of that? So legally, I very much see where Thomas and Gorsuch are coming from on this. Again, not that we're going to somehow entirely ditch New York Times v. Sullivan or radically lower the standard, but that the current system was made up for a case that doesn't really apply to most current libel and defamation suits. And so legally, I think it is a mess. And I think it should be revisited. And we should create something that is easier for lower courts to follow and for both the press and individuals to understand what the standard is. But David, the public policy part is really hard for me because I am all for a very, very free press. And that's going to mean allowing the press to make mistakes.

However, there does need to be some line by which someone intentionally publishing something wrong, false, certainly should meet that standard. So how do we balance all that? Yeah, this is a really interesting conversation for me because it actually has echoes of the conversation we had earlier about text history and tradition versus levels or layers of scrutiny or levels of scrutiny.

Because the levels of scrutiny, they're a judge-made, that's a judge-made construct. So you're not going to see in the First Amendment, in the 14th Amendment, in the whatever, you're not going to see in all the amendments where levels of scrutiny have been applied, you're not going to see levels of scrutiny. You're not going to see strict scrutiny, intermediate, rational basis. And so that leads you, if you're an originalist, to say, well, that's all judge-made stuff. So then we're gonna do,

this goes back to our text history and tradition, which we just spent a podcast or so railing on its application in the Fifth Circuit and how text history and tradition has some problems. And you've got a lot of a mirror of that here. So the text of the First Amendment here, the text of the First Amendment says, Congress shall make no law

respecting an establishment of religion or prohibiting the free exercise thereof or abridging the freedom of speech or of the press or the right of the people to peaceably assemble to petition the government for address of grievances. Now, what do we know sort of about the founding era? or the right of the people to peaceably assemble to petition the government for address of grievances. Now, what do we know sort of about the founding era? One thing we really do know is that libel defamation, we're never really considered part of the freedom of speech.

We also know that the tests of what that was were kind of all over the place. And then we also know that the tests of what that was were kind of all over the place. And then we also know that the founding generation passed the Alien and Sedition Acts. So if you're going to be going text, history, and tradition, I mean, Alien and Sedition Acts, I believe, came through

in the Adams administration. That's John Adams. You don't get too much more founding father-y than John Adams. And yet, virtually no one thinks that the Alien and Sedition Acts should have passed constitutional muster then much less now.

And the interesting thing is when I read some scholarly attacks on New York Times v. Sullivan, when they're going back to original intent, some of them even defend the Alien and Sedition Acts, Sarah. Yeah, you definitely lose me if you're going to defend that. Yeah, so the interesting question is, okay, wait a minute. I think text history and tradition is a framework for originalism to make sense of than people might want to think.

And then you have the words, like you have these two words, freedom of speech and of the press. So it's freedom of speech and freedom of press. So there's some real sort of doubling down on the role of a free press because wouldn't freedom of speech naturally encompass the press? But yet here we have, there's like a double emphasis.

And so in that circumstance, how does a judge apply that language? And the New York Times v. Sullivan standard to me, it is not, let me put it this way. Sullivan's standard to me, it is not, let me put it this way. It does not flow automatically from text history and tradition, but it certainly is a standard that flows from the emphasis of the free press on the free press in the First Amendment. And so what do we do with that? So I think that the argument against New York Times v. Sullivan is not quite so pat as, you know, you might say where, well, that's just a judge-made doctrine. And all judge-made doctrines are not originalism. And bingo presto, that's that. So again, we're running into Chesterton's fence

a little bit here, Sarah. Like what problem are we trying to fix? By the way, there is one other element that we should mention. It's not particularly relevant to this discussion, but you also need to show that it basically materially harmed your reputation. So if someone says that I'm 39 instead of 40 or something, that is false.

Maybe they did it with actual malice. It doesn't matter because there's not going to be any problem that I can show some economic harm or material harm. So, all right, David, let's get down to some specifics here. We don't have any text of Governor DeSantis' proposed bill. He just said, stay tuned. But last year, there was a proposed draft that, among other things, this is what I found interesting, would require Florida courts to presume

statements by anonymous sources are false in a defamation claim. So remember, the first standard is you have to prove that the statement was false. That's on you, the plaintiff who's bringing that. So this would switch that burden of proof when it's an anonymous source that the defendant would need to prove the statement made by an anonymous source was true if someone brings a defamation claim against them. David, you are shaking your head. You seem unamused.

No, that's... What is that called? What's the name for that, Sarah? Messaging legislation? Or maybe that's press release legislation trying to get a Fox News hit legislation. The idea that a statement from an anonymous source can be presumptively false in connection with a First Amendment that says specifically freedom of the press. Burden shifting, David. Burden shifting, David, burden shifting.

Yeah. Look, that's not going anywhere. I mean, that's not, that's not going anywhere. And, and can I just say for a moment, there's this weird, kind of weird irony happening because Trump and then DeSantis have really come, come out strongly about, or at least have made noise, pretty loud noises about challenging this New York Times v. Sullivan standard. Loosening libel laws, I think was the term that Trump used. I'm not sure that's going to benefit who they think that's going to benefit, and I'm not sure that's going to harm who they think that's going to harm. they think that's going to benefit. And I'm not sure that's going to harm who they think that's going to harm. This is a, if you're going to look at who right now is facing titanic legal jeopardy over defamation, I mean, as we've talked about, as you know, Sarah, Fox News, Newsmax, OAN. It was Fox that recently settled a lawsuit brought by the Seth Rich family.

If you go down and you look at the top 20 right-wing websites, it is a Mos Eisley cantina of the top 20 websites with some good exceptions, some very good exceptions. But if you go through the top 20 websites, what is it there's, what's the word from Star, or what's the line from Star Wars, a wretched hive of villainy? I don't know. It's the Mos Eisley cantina of defamation, Gateway Pundit, others, that frequently just say things are false. It's a good thing, by the way, that that was an opinion statement.

It will be hard to sue David for that because it was not a statement of fact. Yeah. Okay. So you're right that lowering the defamation standard, at least to me, doesn't clearly benefit, certainly not an ideological side one way or the other. I think there's, there's idea that it will hurt the New York Times or mainstream media outlets when in fact they're the ones that have the army of editors and lawyers, I think by and large, they're more likely to catch mistakes.

And if the rules change, they will adjust their systems to those rules. It's going to be the smaller news outlets that are going to have the harder time. So it's not ideological. I think it's much more size and sophistication difference. By the way, though, on the anonymous sources thing, can we just do a little cul-de-sac? Yes. Okay. So last week we were talking about law students and whether they should be able to experiment and remain anonymous with their protests. And this was in response to David Latt. So David Latt responded to our response and said that we drew a distinction between something that's legal versus something that's,

quote, a crappy thing to do. As someone who writes about law students, he says, I'm interested in the crappy thing to do part of the question. And so I responded, one, there's plenty of times a description of a non-public person will give the reader plenty of info to establish or judge their credibility. Like you don't always have to use someone's name. You're not even making them, you know, quote unquote, an anonymous source. You're just describing them, you know, a 2L who I spoke to who was at the protest said X, Y, and Z. On the other hand, I really believe that the proliferation of anonymous sources has wildly that the proliferation of anonymous sources has wildly hurt journalism and the public's trust.

And I want to explain a little bit of how anonymous sources work and why the... I mean, there's just been a huge increase in them in the last, let's call it six, eight years or so. So here's the thing. You can get someone to say something totally salacious about a public figure, not put their name on it, you use their name and you figure out that like, oh, actually it's someone who has a major ax to grind with whoever, whoever, you instantly discard their opinion. Right. And so when you're a journalist,

your story is more likely to get clicks if you keep the source anonymous. If using the source's name would sort of make it less interesting, you as the source anonymous, if using the source's name would sort of make it less interesting, you as the source, of course, would like to stay anonymous. Why attach your name to stuff? It's way more fun to just throw some bombs.

And the reader, like sort of enjoys the entertainment tabloidization of it. This was so, so true during the Trump administration. All of these leaks were from anonymous sources. And by the way, it's not that I'm saying they weren't true. I'm sure many were true.

I'm sure a few were not true or had different sides to them, but it was impossible to adjudicate any of it. And I just think of the anonymous op-ed from the New York Times. Right. It made such enormous news that a, quote, senior administration official had published an op-ed criticizing the president, you know, in very serious terms. If that op-ed had been published by, you know, the, I forget whether he was chief of staff at Homeland Security at the time or the public affairs officer at Homeland Security at the time. But whatever it was, you know, Miles Taylor, I just think it would have had a much different impact.

So it's a good example of why anonymous sources, I think, are in everyone's interest, except the readers who actually would be far better served by having way, way, way fewer anonymous sources. So in that sense, I'm very much with Ron DeSantis in trying to, like, I wish that newspapers would stop allowing anonymous sources where it's impossible to judge the credibility of the source. That being said, I don't think the way to disincentivize anonymous sources is to change the standard for definition lawsuits. Yeah, I can agree with most of that. I think that the ethical standard for the use of anonymous sources should be high. In other words, if you're working at a reputable news organization, there should be a high bar for having an anonymous source. At the same time, however, anonymous sources have been really important in the past in uncovering and unearthing some pretty dreadful governmental misconduct. And so if you're going to render an anonymous source sort of presumptively false, as that performative legislation was going to do,

then you are putting news organizations in a position where they would find it difficult to publish truthful information in the public interest where anonymity might be necessary, not just sort of an optional thing that makes the story more salacious, but necessary to protect identities of sources and protect people from reprisals. And so there's a history of anonymous sources being of real value to the public. The problem is they got out of hand. It just got out of hand. I mean, the Trump administration was leaking like a sieve and it was very easy to sort of get your stuff

into the papers. And it just triggered this cascade effect that has some really negative ramifications. But the answer is not to turn the world upside down from a legal standpoint where truthful information can become presumptively false based on the fact that it comes from an anonymous source. That's not the way to do it. And I don't think either Gorsuch or Thomas would say, even if they're skeptical of New York Times v. Sullivan, I don't think either Gorsuch or Thomas would say, even if they're skeptical of New York Times v. Sullivan, I don't think that they'd say you can modify the standard that much.

I have one other fun example. When I was at the Department of Justice, a reporter came to me with a story that the Department of Justice was going to file a lawsuit against Harvard and North Carolina on behalf of white students who believed they'd been discriminated against. And I said, look, I'm not going to be an a-hole about this, but I could just tell you your story's wrong. But instead, I'm going to do you a favor and just say like, yeah, I think you just have to change the white people part because I think it's going to be Asian American students. So they go ahead and print the story and it just says white people. I'm like, hey, I told you that. And he's like, well, my source is really good. And I was like, okay, but I don't understand. So when we filed

a lawsuit and it's only Asian students, are you going to change your story? And he goes, no. I'm like, I don't understand. He goes, well, that just proves that my story could have changed the lawsuit. I'm like, so you have an anonymous source whose credibility we can't judge. And it's also disprovably, unprovably false because no matter what happens, you're going to like Heisenberg principle. There was no way to know what would have happened

without your story. Even though I told you that it was never accurate. And by the way, that story, still up. They just added white students and Asian students after the lawsuit was filed. Yeah, so that's bad use of anonymous sourcing. And it's not just bad use of anonymous sourcing, it's just bad practice in general, right?

I mean, something happens that immediately rebuts. Yeah, it immediately rebuts what occurred and rebuts your story and you're not willing to correct it or fully update it and provide context. No, that's just bad journalism-ing as opposed to, now the anonymous source, I mean, bad use of anonymous source, bad use of, or bad practice once the story is published, just bad, just bad.

But it's also important to note that not everything that happens bad in journalism or anywhere else has a specific legal solution to it. All right, you were gonna say one more thing about Ron DeSantis, and then I wanna get to the Fourth Circuit. Yeah, so the one more thing about Ron DeSantis is, what's interesting to me is how many of his culture war initiatives,

not all of them for sure, but how many of them involve taking direct aim at the First Amendment or First Amendment jurisprudence. So we've had the social media law involve taking direct aim at the First Amendment or First Amendment jurisprudence. So we've had the social media law that is now blocked by the 11th Circuit. We have the Stop Woke Act, of which there have been two separate injunctions entered against it.

We have changing libel laws or shifting the anonymous sources standards. All of these things are really aiming at existing sort of free speech regimes in a way that is designed to increase state power. And are we sure that's what the right wants to be doing? Because I have spent most of my time on the right side of the spectrum where with people who were completely or at least seem to be completely committed to free speech and a robust defense of the First Amendment. And the way I put it with

somebody a few days ago, they asked me what I thought about Ron DeSantis. I said, there's some things I like, and there's some things that I don't like, but I really wish he would stop going after the First Amendment jurisprudence like he's some kind of Viking berserker. All right, let's move to the Fourth Circuit because they've got a case that touches on this conversation as well. So in North Carolina,

it is a class two misdemeanor, a crime. I'll read you the statute here. For any person to publish or cause to be circulated derogatory reports with reference to any candidate in any primary or election, knowing such reports to be false or in reckless disregard of its truth or falsity when such report is calculated or intended to affect the chances of such candidate for nomination or election. Now, in 2020, two dudes are trying to become North Carolina's Attorney General. Plaintiff Josh Stein for Attorney General campaign produced an ad criticizing Jim O'Neill for not testing rape kits. So here's the text of the ad.

As a survivor of sexual assault, that means a lot to me. And when I learned that Jim O'Neill left 1,500 rape kits on a shelf, leaving rapists on the street, I had to speak out. leaving rapists on the street, I had to speak out. Now, obviously the question is, assume for a second that that was false. Can you charge Josh Stein for attorney general campaign, who by the way, one, can you charge him with a crime? And again, the standard in that time. And again, the standard in that statute that I read you, the knowing such report to be false, that sounds like our, you know, current standards, in reckless disregard of its truth or falsity, that sounds like the actual malice standard a little bit. But there are a few differences, knowing such report to be false or in reckless disregard of its truth or falsity and of course this only applies to candidates in primary or general

elections and it has to be calculated or intended to affect the chance of the candidate winning um all right so they went ahead and charged josh ste Stein or said they were going to. He then goes to federal court and asked for an injunction on it. That's how this is going to end up at the Fourth Circuit. And the question is about the constitutionality of that statute. Judge Heitens nominated by Biden, Judge Rushing nominated by Trump, and Judge Diaz nominated by Obama. It's a unanimous opinion finding that, yeah, that's a no. So A, the or there, knowing such report to be false or in reckless disregard of its truth or falsity actually leaves open the possibility that you could say something true, but you said it without, you know, with reckless disregard of whether it was true or false. It turns out it was true, but you could still be charged based on that or language. But more importantly, perhaps, they found that this was content-based, that it only applied to candidates, and that that was a big no-no. And of course, that second part that it also has to be calculated to affect the chances of the candidate winning. David, I thought it was an interesting opinion. What'd

you think? I loved this case, Sarah, and I'm so glad you sent it to us because it is one of those cases that it's, you can show it to law students as an issue spotter in one paragraph. And it's like peeling an onion of badness with a statute. So let's read it again real fast. For any person, it's a crime for any person to publish or cause to be circulated derogatory reports with reference to any candidate in any primary or election, knowing such report to be false or in reckless disregard of its truth or falsity when such report is calculated or intended to affect the chances of such candidate for nomination or election. Now, the word derogatory, Sarah,

is not a synonym for false. So right there from the beginning, it's prohibiting circulating derogatory reports when you know they're false or when they're made in reckless disregard. So as you said, wait a minute, actually, if you read this according to its plain English, it could be a derogatory report that you've made without regard for truth or falsity,

but that is true and still be subject to criminal prosecution under the statute. And for that reason alone, it was easy to see why this would get knocked out. And then the other thing that was, as you also said, what you're doing is you're creating a world in which candidates for election have a heightened level of protection from derogatory information, which is, as the court said, it's content-based,

but it's also just directly contrary in many ways to the way we want to think about the First Amendment, which if there is any area of speech, which would be sort of core speech under the First Amendment, speech about candidates for public office would be that core speech. But I just love this because the court did such a good job of taking a paragraph, a very short paragraph, really just like one long run-on sentence, and picking it to pieces point by point by point about how bad it is.

I thought it was fantastic. And for law students, it's like a great little issue spotter mini exam. And it was fun to read. That's such a good point. It was really good for that. Law students should read this. And by the way, it's written by Judge Heitens,

Toby Heitens, who is certainly considered sort of the rising star of the Biden appointees. Keep an eye on him. We've talked about his opinions before, even when we've disagreed with them, they come with a lot of oomph and weight and great writing. And so no difference here. I also, though, mean, David, to your point about picking apart word by word, does the word derogatory information imply that it had to be false despite the or language? I mean, all of it, he takes it really word by word,

line by line. Yep. So, yeah, I mean, to summarize our entire conversation here, there's a lot of complaints you can make about the public policy line that's been drawn on defamation and libel. But it's a little hard to come up with a solution to all of that that strikes a good balance between the powers that the government has

or that powerful people have and a press holding them accountable that's going to make mistakes. And while I think the actual malice standard has been beefed up, like it's actual language, reckless disregard for the truth. I'm sort of fine with the idea that you have to show that the person didn't make a mistake or that they, you know, it wasn't an honest mistake. They, you know, looked it up, they knew it was false or they told someone not to look it up to find out that it was false, whatever that may be. But that actual malice standard has been used now

to basically end all defamation and libel lawsuits. So this will not be the last time we talk about this. I guarantee this is going to come up a ton in the 2024 presidential elections. I think it's going to get to the Supreme Court sooner rather than later. So put a pin in it, more cases to come. All right, next up, we've got sanctions to talk about. We don't normally talk about sanctions, but this one's kind of worthwhile. It's making the rounds. A well-respected district judge out in the Northern District of California, an Obama appointee for those that care, has sanctioned Gibson Dunn,

a major top-tier U.S. law firm, as well as Facebook, for basically being bad litigants. So Facebook was sued, Meta, was sued over that Cambridge Analytica data sharing privacy stuff. We don't really care that much about the details of the case. And the judge,

here's the opening of the sanctions opinion. This case is an example of a wealthy client, Facebook, and its high-powered law firm, Gibson Dunn, using delay, misdirection, and frivolous arguments to make litigation unfairly difficult and expensive for their opponents. Unfortunately, this sort of conduct is not uncommon in our court system, but it was unusually egregious and persistent here. He goes on to give examples. Sometimes lawyers and their clients engage in conduct of this sort because they are incompetent. Facebook and Gibson Dunn are not incompetent. Sometimes lawyers reflexively oppose the other side's request without giving any thought to their actions. That does not seem like Facebook and

Gibson Dunn. Instead, the court finds by clear and convincing evidence that Facebook and Gibson Dunn's conduct reflected a sustained, concerted, bad faith effort to throw obstacle after obstacle in front of the plaintiffs, all in an attempt to push the plaintiffs into settling the case for less than they would have gotten otherwise. The plaintiffs are entitled to recover $925,078.51

for the fees and costs they incurred responding to this misconduct. Facebook and Gibson Dunn are jointly liable for this amount, meaning if one refuses to pay, the other one's on the hook for the whole thing. They can figure it out amongst themselves. It's a 53-page opinion. It really walks through the pieces that he said are just like, fine, that's normal litigation tactics. Here's where it departed from normal litigation tactics. And in particular, I think some of it was also just the motivation. I'm going to read this part. after reflecting at considerable length on what might have motivated Facebook and Gibson Dunn to

conduct themselves as they did. There's a small chance, of course, that Facebook and Gibson Dunn were just overly zealous, and perhaps there's some minute chance that they were just incompetent. But when you consider the context, it's far more likely that the misconduct was of a different, more nefarious sort. Recall that Facebook was being sued for conduct that was the subject of a major scandal, a scandal for which the company issued numerous public apologies. Recall that the Federal Trade Commission brought an action against Facebook in the wake of the scandal and that Facebook paid $5 billion to settle the matter. In this case, Facebook sought dismissal at an early stage, but that attempt was unsuccessful.

After publicly apologizing, paying a massive penalty to the FTC, and losing that early motion, does anyone really think that Facebook was planning on taking this case to trial? Or was Facebook, with the assistance of its lawyers, executing a different play from the playbook? Resist discovery as long as possible, make things increasingly difficult and expensive and frustrating for the opposition, and hope that would drive down the case's settlement value. This is by far the most likely explanation for Facebook and Gibson Dunn's conduct. So David, along the ideological spectrum, the conservatives have been the ones complaining about trial lawyers. Plaintiff's side lawyers is what they mean, by the way, when they say trial lawyers. They mean people who bring lawsuits trying to get windfalls against large corporations. And the large corporations are on defense. At the same time, there's also no question that large corporations have come up with an army of different ways to turn litigation into their favor,

the most common one is make it as long and as expensive as possible because the plaintiff's attorneys are generally working on contingency. And so if it takes 10 years versus two years, they don't get paid more because it took 10 years. And so they're increasingly pressured to settle the case and get what they can. Each side knows that. And so the incentives

get pretty messed up, especially around discovery, where in this case, Facebook, the defendant, has all the information. The other side needs the information and Facebook just keeps throwing up motions and delays and like, well, you don't need that. One of the most telling pieces was the deposition where the lawyer is objecting to questions, instructing his client not to answer the questions. That's a deposition no-no, by the way. And then at some point, they just start litigating the objections there in the room during the deposition. The problem with that, by the way, for those listening who aren't lawyers, you get a certain

number of hours for the deposition, not a certain number of questions or whatever else. And so if the lawyer for the other side is eating up your time by talking a lot, you don't get that time back. And so that's just another example of where the judge found bad faith that they're not turning over the documents they should. They're making frivolous arguments about why they're not gonna turn over the documents,

many of which the judge just said make no sense. Yeah. And then third, at these depositions, the lawyers are trying to take up the other side's time with things they know aren't okay things to do in a deposition notably by the way the judge cites the lead attorney by name and says he's lucky he's not being personally sanctioned for all of this this is an attorney at Gibson Dunn who, I mean, really fascinating. This is like one of the top attorneys at Gibson Dunn. His name's Oren Snyder.

David, I thought you'd find this sort of interesting in his pro bono experience. He currently serves as lead trial counsel in Deon Jones versus City of Los Angeles, a civil rights action asserting First and Fourth Amendment claims against the LAPD and others for shooting Mr. Jones while he was peacefully protesting in the aftermath of the George Floyd murder. He is also co-lead trial counsel in Buchanan versus Trump, seeking to hold accountable members of the Trump administration for their audacious and offensive and obviously unconstitutional attack on peaceful protesters in Lafayette Square in June 2020. He also led the Gibson-Dunn team that filed an amicus curia brief with the United States Supreme Court and Dobbs v. Jackson Women's Health Organization.

The case addressed the constitutionality of abortions. The brief argues that overturning Roe v. Wade, which Mississippi asked the court to do in upholding its law, would place women and their families at the mercy of state legislatures, denying them the basic rights to make among perhaps the most personal decisions about their bodies, their families, and their futures. I just go back to something the judge said. Okay, so the first one is, this is a big case, the court explained. So Facebook should be careful before making any arguments

that discovery was just too expensive or difficult. Gibson Dunn attorney, Oren Snyder, sought to assuage the court's concerns. If I was there, I would look you in the eyes. I'm telling you, judge, we are not only acting in good faith, we are eager to produce documents, whatever the expense,

that are relevant to the issues in this case. I am confident, Your Honor, that when you see our performance on the issues in this case in terms of our production of documents, you will have no basis for concern because we want to get on with it. We think those documents

are actually the key to us winning, which again is literally the opposite of what the judge ended up finding. And Oren Snyder argued with his typical bombast that this interpretation was based on, quote, a lot of case law, end quote, none of which seems to exist, the judge writes. Those arguments were frivolous

and they did nothing but delay production and waste the plaintiffs and the courts time. Woof. Huh. So, David, you've litigated this stuff before. You know how the tactics work, the sort of meta tactics, if you will. I know meta, meta, but I mean meta with a small m. Meta, but I mean meta with a small m.

And curious if you think this finding will actually affect major litigants moving forward? I am right now, Sarah, imagining lunch and learns at big law firms all across America where this is discussed or at least brought up briefly, maybe more, because there is a style of practice that amongst big firms, amongst big litigants, whether it's sometimes attorneys, you know, attorneys general, when they're defending their state, where it's not exactly

that they are defying the law. In other words, if the law requires them to produce documents, it's not that they're not producing the documents. It's just they're finding ways to delay their production as long as humanly possible, including by making dumb and bad arguments that they know are dumb and bad, but then sort of paper over the abuse of the process by saying, well, I never failed to comply with, say, a magistrate's order or any of your orders, Your Honor, to produce anything. I've always complied with everything that you've said,

to which the judge here in this case would respond, but you made us say it. You made us make these orders or you made us intervene by erecting or making a series of arguments that were never good and you knew they were never good. And I found this absolutely fascinating because it got at one of the most frustrating aspects of trial practice when you are a plaintiff, which is, you know, there's a document or a set of documents, you know, you're entitled to see them, but the defendant is making you ask for them in specifically the most precise way possible, or even if you do that,

raising an objection, you know, to be frivolous, that's going to require you to either make a motion to the judge or threaten to make a motion to the judge. And all of that just takes time. And this was such a common tactic that I saw from universities, Sarah, who possess immense resources, huge resources, and you're representing a student group. And sometimes they're just trying to run out the clock to get the student to graduate so they can file a motion to try to say the case is moot or, you know, a professor who they're just trying to wear the professor down. And I remember one time we're in the middle of one of these endless discovery arguments. And I said, I know what you're doing here. You're trying to turn this into trench warfare.

You're trying to make this the Battle of Verdun and just bleed us out. And I said, but if you're gonna make this the Battle of Verdun, we're just gonna be the French in that. And that was, if you know your history of World War I, the Germans decided to try to trap the French in this bloody battle that the French would be unwilling to lose.

And it worked out, it was horrible for the French, but it worked out to be horrible for the Germans. It did not, it was considered at the end, you know, a French victory. And so there's this sort of test of wills that happens. And when you're a plaintiff and you possess inferior resources, there is a series of things sometimes

that you need to do to signal that you're in it, to win it, you're in it for the long haul. And I would have loved to have this district court opinion back in my day because I would just sort of slide it over the desk and say, look, you know, I know this isn't controlling in this district, but I'm going to enjoy bringing this up to the district judge or to the magistrate judge

and have you explained why this kind of reasoning shouldn't apply in this jurisdiction. So I think that it's going to be, it's going to have some importance. And it's good to see it. I'm glad to see it. It is a very, it's responding to a very common litigation tactic. Also, fascinatingly, this case did settle. The sanctions motion had been made before the settlement. And so the tactic worked. They did get them to settle before they got all their discovery requests met and the depositions didn't get redone. So I don't know if you agree with me, David, but in almost all situations, I am for more sanctions and more disbarments. I think we are under-sanctioning bad conduct and under-disbarring lawyers who repeatedly engage in bad faith conduct. We are 100% agreement on that point.

That was a point of frustration when I was practicing. And, you know, maybe the tide is turning. We've seen some major sanction awards in some of the Trump litigation, election litigation. This was a major sanction award. And I think when a practice becomes prevalent enough, there are judges who are just gonna to say, no, no more. That's it.

And when one does it, another one will do it and another one will do it. So we'll see. I mean, this actually could be far more significant than a lot of some of the other district court stuff we talk about. And we try to only talk about the significant district court work. But this could have some real ramifications. 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

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Terms and conditions apply. All right, we're going to end on a little bit of speculation. The Supreme Court has a lot of major cases this term, but two of the ones that we've highlighted, two of the biggest ones are one, Moore v. Harper, which is the independent state legislative doctrine. That's the question over whether when the North Carolina's Republican state legislature

passed a redistricting map, the majority democratically elected state Supreme Court struck it down as a partisan gerrymander that violated the North Carolina constitution and ended up drawing its own map. And so the question is basically, who controls? Well, North Carolina had an election, and they've now elected a majority Republican state Supreme Court. And that Republican Supreme Court has said that it's going to re-hear the case. Well, this is interesting on a few different points. Obviously, it's just

interesting on the merits. But also, it kind of is a mess for the Supreme Court because those arguments were already heard. That means conference already happened. The vote's already been taken. Presumably, someone is writing. Maybe some dissents, maybe some concurrences are being written. maybe some dissents, maybe some concurrences are being written. And the North Carolina Supreme Court, the new North Carolina Supreme Court, is set to be heard March 14th. Don't know how long it's going to take them to actually decide the case. But in short, is the U.S. Supreme Court going to punt? Are they going to dig the case? Are they going to moot the case? Really hard to say.

And similarly, speaking of which, another case that we've talked about a lot is the Title 42 case. This is about actually not whether the Biden administration can leave in place Title 42 at the border, the public health measure preventing asylum seekers 42 at the border, the public health measure preventing asylum seekers from crossing the border, but whether the states can intervene,

Republican-led states in this case, to defend the order. It was granted cert, presumably five, four, there were four justices who noted their dissents at least. Gorsuch was among them. In December, I want to say that was when that happened. We're expecting oral argument in March. But guess what? The Solicitor General's office filed their brief noting that the public health order about the, you know, establishing the pandemic as a public health emergency is now set to expire May 11th and suggesting that this moots the case and it would be mooted under Munsingware. We've actually talked about this, David, but just revisit that before it happens.

Munsingware is the weird thing that's going to happen to the lower court opinion. Because when the Supreme Court then is like, never mind, we're not going to listen to this anyway. Well, they accepted cert. So now is there going to be what might have been bad case law going to stay on the books for that panel opinion. And so Munsingware vacatur is where you just that lower court opinion never happened, basically. So that's what the Solicitor General's Office is suggesting happen in this case. But there's a few problems with this one, David, too. A, this is the second of these cases that the Supreme Court tried to take. Remember, they tried to take another immigration related one also on whether states could intervene.

This was the public charge rule. They dig that one. whether states could intervene. This was the public charge rule. They dig that one. As in this does keep happening and then it keeps getting mooted out. And then on that North Carolina one, that's definitely gonna keep happening.

And of course, these things are gonna keep happening sort of in between election cycles. So what I find interesting about the North Carolina one is that I don't understand why any of the parties agreed to have the North Carolina Supreme Court rehear this case. Huge mistake on the Republican side. Presumably they were looking pretty good

at the U.S. Supreme Court. And then on the Title 42 one, I mean, the Biden administration could change their minds on the May 11th thing, but by May 11th, it'll be too late to then have the Supreme Court issue an opinion. That being said, I think there's a better than 50-50 chance that those two cases are going to drop off

the docket for this year. David? I agree. And it's especially in Morvey Harper, it's a shame. I think there is real need for clarity on this independent state legislature doctrine. Of course, the case was not going to provide all the clarity that was necessary on this issue. But at least going into 2024, we're going to have a sharper definition of what the independent state legislature doctrine is in case we had continued controversy. So I was looking forward to that

ruling. I think it was going to come out in a way that, I don't know, Sarah, you know, going back to and thinking through the oral arguments, I'm not sure it was going to come out in a way that Republicans were all going to love. It was tough for me to predict from the oral argument, but I'm very interested in it. So it is a shame, but I agree with you. I mean, why are they going to do it if the North Carolina Supreme Court is rehearing the case?

I mean, it's a powerful argument to just let sleeping dogs lie and let the North Carolina Supreme Court deal with North Carolina law. So I agree. Yep. So keep an eye on those two cases. It would, for me, very much change the tenor of the term. Those are two of the biggest cases potentially coming off the docket. All right. Last thing, David, just a quick, quick conversation about masculinity here. So you wrote your New York Times piece about something about a tweet that a guy named Matt Walsh tweeted. And he said, all a man wants is to come home from a long day at work to

a grateful wife and children who are glad to see him and dinner cooking on the stove. This is literally all it takes to make a man happy. We are simple. Give us this and you will have given us nearly everything we need. And you sort of, of course, took that apart. But obviously, I agree with what you wrote that no, an unemployed man who spent all day on a park bench, who comes home to a dinner and a grateful wife and children is not going to be fulfilled. Because in fact, our greatest need as humans is a sense of purpose. It's duty. It's to be needed.

And I think that men in particular are suffering from this as our economy changes. But what I find sort of fascinating, David, is that I think it's also bigger. I think men have an acute issue right now when we talk about suicides and opioids and all of that. No question. More acute for men. But as our society moves from sort of a hand to mouth, is there going to be enough food? Are they going to come pillage my, you know, town into a safer, more food secure society? a lot of people are missing purpose. And I see that among my female friends. Now, again, I think there's a reason that women are not experiencing the acuteness that men are.

We have other, we are more likely through our social nets that come more naturally to our brains, I think, for most women, able to find something that needs us. So our need to be needed to have to have a duty towards others, a purpose is somewhat easier to find. But especially I think as you're getting into higher socioeconomic stratas, and even even I think it's dropping lower as again, even I think it's dropping lower as again, a standard of living is just wildly increasing. Very, it's getting increasingly hard, I think, for a lot of people to feel that existential sense of purpose that drives our little lizard brains. So what do you do? Yeah, that, you know, you really, you raise an important point that this is not intended to be exclusive to men, but is raised because, as you said, the challenge facing men is particularly acute. But it also raised it because the Walsh tweet,

which I don't normally write about tweets, but this received 18 million views. And it struck a chord with a huge amount of division, but it also echoed something deeper, Sarah. And what it echoed is an argument that I've heard primarily in evangelical circles for a long, long time now, which is that men want respect and women want love. The danger that I saw in the Walsh formulation, which is a very tweet-length formulation of this longer view, which says, look, when push comes to shove, what men want is respect. I don't disagree necessarily. There's actually some social science

that I talked about in the piece that does show that men, when push comes to shove, do tend to want respect. What I'm saying and what I argued in the piece is that's fool's gold. You might want it, but ultimately for a meaningful, joyful life, that's fool's gold. And the counterexample that I used was veterans. So veterans are among the most respected people in all of American society, respected by the general public, respected within families,

and yet are really struggling with deaths of despair. Now, there's a lot of reasons for it. You know, one of the things that we all do, you know, you and I both are like this, we reject monocausal explanations for complex phenomenon. And so there's combat stress that plays a role in this. There's a lot of things that play a role in this. But one thing that I have seen,

and one thing that you talk to any, talk to veterans groups, they will say is it's not like vets lack for respect. What they lack, especially after they leave the military is that sense of purpose. When they're in the military, they're covered up with purpose, especially after they leave the military, is that sense of purpose. When they're in the military, they're covered up with purpose, especially if they've deployed. And then when they leave, they don't have it anymore. And the difference between respect and purpose, respect, as I wrote in the piece, is contingent. You can't guarantee it. You might be an honorable person, but you can't guarantee that other people will honor you.

So if your self-worth is ultimately living in the gaze of the other, that can lead to a couple of things. One is perpetual insecurity. And then the other thing that it does is let's suppose you have not centered your life around purpose, but you're centering your life around demanding respect, that's one of the reasons why some men, you know, try to dominate or subjugate people and their families, including their wives and children, because they're trying to demand something and trying to establish kind of a hierarchy that they think goes along with respect. But yes, I'm 100% with you and I've written about this previously, how technology and the fact that

we don't have to work for our daily, like literally work with our hands for our daily bread. The fact that, you know, in the case of men, even though the United States has like a large military, it's a fraction of what it was compared relative to the size of men, even though the United States has a large military, it's a fraction of what it was compared relative to the size of the population or manufacturing or agriculture. These are not things that are what they used to be. And so there's a real need for people to proactively find purpose. Purpose used to kind of fall upon you and your purpose was,

I don't want to starve and I need to grow food for my family. Now, often you have to go find it. And I think that that's a really important part of mentoring, you know, your kids and fathers mentoring sons and daughters, moms mentoring sons and daughters, go figure out how to find that purpose. And it's also one of the reasons why the Putnam book, Bowling Alone, I think it's one of the most prescient books written in the last 25 years, because his whole thesis was, when we don't have the civic associations, when we're falling away from civic associations, you know, it's causing us to be disconnected, aimless, rootless. And those civic associations and those civic connections can provide immense meaning and purpose in our lives.

So that was the longer version of the piece. It's why there's sort of this stereotype, right, of trust fund kids being ne'er-do-wells because by definition, they're born without a sense of purpose. The one purpose that's sort of left is to make money. They're like, you don't need to make money to have a house, food, a family. Like, well, then you're just wandering the earth.

Two, I'm curious whether episode three of The Last of Us, which I mentioned a couple weeks ago now, whether you watched it and whether you think it fits this thesis. And last, I just think it's part of why when you look at what movies resonate in sort of universal cultures, it's often those action movies where the hero, quote unquote, has this sense of purpose that we all kind of crave and see ourselves. Like if we were in that situation, would we be able to do the same thing? Would we be able to fulfill that duty to others and that purpose? We don't really watch movies about someone loafing about without purpose. Or if you do, they're in an art house and they win Oscars. True, true. But yeah, I, you know, that's one

thing that, and I talked about when I was coming home from Iraq, I had this real, literally mid journey. I was, I was at a layover, if that's what you want to call it in Kuwait, at an Air Force base in Kuwait. And I was separated from my unit. I was ending my deployment. And I thought I would be overjoyed because I was going home to see my wife and kids. But instead, I felt like this incredible emptiness, like this hole in my heart. And it took me a while to figure out what happened. And what happened was all of a sudden, I'd been yanked out of my purpose. The purpose that had been dominating every waking moment of my life for almost a year was suddenly gone.

And I wasn't just yanked out of my purpose, I was yanked out of like my brotherhood, the people I was serving with. And so all of a sudden I was alone and I did not have other than what do I need to do to get to Atlanta airport. I didn not have other than what do I need to do to get to Atlanta, you know, Atlanta airport. I didn't have purpose. And it was, it was this unbelievable feeling. And it took me a while to kind of rebuild and to work out of that. And I'm just extremely convinced that a lot of these challenges we have with masculinity

are way pre-ideological. It's not about what feminists are saying about toxic masculinity. It's not about what the manosphere is talking about feminized men. It's really pre-ideological. And then a lot of the ideological battles are trying to figure out what to do about this pre-ideological. And then a lot of the ideological battles are trying to figure out what to do

about this pre-ideological problem. I think all of that is true. I actually had experienced something very similar at the end of the 2012 Romney campaign. I'd been on the road at that point for months. And I had a really hard time adjusting to coming home. You know, just like, and suddenly, you're put on a plane home,

and it's like, what am I doing here? Um, so yeah. Okay. I do want to hear about that. What you thought about the last of us episode, because the whole thing, I mean, spoiler alert, if you haven't seen last of us and you plan to watch it, turn it off now. This is the very end of the podcast. You don't need to hear the rest. He decides to end his life because he says his partner was his purpose, protecting him. Oh, man. No.

Oh, man. I know it's awful. But oh, man, no. No. You press on. You press on. Sarah, are you emotional thinking about it? I just, it's funny because when you don't have,

like post-apocalypse, right? Yeah. What is the point? Just to live? No, surely it is that duty to one another. Yeah. Like just living for the sake of living, what I think, yeah, it'd be pretty empty at that point.

And so I think he was, had a point. You know, I go back to that sort of the biblical admonition, I believe Joshua gave the children of Israel. And there's this just very basic primal admonition, which is choose life, choose life. Yeah. And at the very basic level, because you don't know, you don't know what the next day is. And in choosing life and choosing to at the very least take care of yourself to move one foot in front of the other to another day, which you don't know what it brings. And you don't know what possible

avenue you might have to walk with another person or to help with another person. Very true. That's sort of like at the bottom line, like if you're talking to somebody who feels like they just don't have purpose and they don't know what, why the next day should even exist for them, you know, at the very end, at the very most basic element of that, there is purpose and just simply making the choice to choose life. And that, that's a, that's your most basic building block. And that's like step one. And then you can build from there. And if you don't, you can't build from anything. I thought the episode did a really nice job of centering in this post-apocalyptic world.

The two-way street that is duty to others, the purpose of life and how fulfilling that can be. When everything else is gone, that purpose provided both of them such a happy and fulfilling life with none of the other stuff, no TV, none of the comforts. So I thought it was a great episode. And with that, we will leave you, dear listener.

It's a marvelously well done show. Just saying. Don't think of it as zombie fiction. It's just so much more than that. No, because the point of the show is actually these zombies are like a set piece. It gets you from place to place, but it's not actually a show about zombies. It's about human interactions and what humans are capable of both in positive and negative ways. Yeah, it's doing pretty well, pretty well in my book. All right.

That's it for us today. We have suffered through some technical difficulties and we've made it to the other side. And hopefully, David, what do you think? Was it a good pod? So I don't want to always say it's a good pod because then no one will, everyone will

discount when I say it's a good pod. But it had some really good stuff in it. So I got to say, yeah, it's a good pod. We'll talk to you in a few days, maybe with a better pod. By the way, are we on a big delay? I think we're on a little bit of a delay. Okay, I'm going to count to three and then you say four. Ready?

One, two, three. Okay. F***, we're on a huge delay. Four.