Advisory Opinions - Did the Biden Admin Violate the First Amendment?

Episode Date: September 12, 2023

It's a grab bag show for David & David: Mark Meadows takes the L in Fulton County, the Fifth Circuit issues an injunction against the Biden administration, and Argentina is forced to make a $16 billion payout. Plus: Vanessa Oterro, founder of the Media Bias Chart, joins the show to drop some data on why you should definitely keep tuning in to Advisory Opinions. Show Notes: -Judge Jones' Ruling in Meadows Case -Poem David French was referencing (probably) -Media Bias chart -Argentina's $16 billion payout Learn more about your ad choices. Visit megaphone.fm/adchoices

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Certain conditions apply. Details at phys.ca. Ready? I was born ready. Welcome to Advisory Opinions. I'm David French with David Latt. Sarah is still on maternity leave. She's doing well. Baby Case is doing well. And we still have another good couple of weeks together, David. And we have not lacked for content at all. Every podcast has been from big legal development to big legal development. And this is not going to be any different.

So we're going to start with Mark Meadows' removal effort has failed. The Fifth Circuit has handed down a fascinating case on government coercion in social media and speech on social media that we're going to spend some real time on. There was a $16 billion, that's billion with a B, jury verdict involving a friend of the pod that we're going to talk about. And then we're going to have a fun conversation with Vanessa Otero, who is the founder and CEO of a group called Ad Fontes Media. She's the creator of the media bias chart that if you're on Twitter or Threads, you may have seen this chart that rates media by both reliability on both a reliability axis and also an ideological axis. It's really well done. And how did Vanessa catch our eye? Because

she rated Advisor Opinions extremely highly reliable and extremely non-biased, which David, I don't know, in my completely reliable and non-biased opinion was the accurate way to rate us. I think that's right. As a consumer of legal podcasts myself, even before I was a guest host. Yeah, absolutely. And Vanessa's great. So Vanessa is a recovering attorney. She has a JD, a patent lawyer. So she's got a very analytical way of approaching things. And so I think you'll enjoy this conversation. But David, before we go there, let's start with our friend Mark Meadows. He took an L in the district court. He did not successfully remove, at least not yet.

He did not successfully remove, and we got an opinion. Do you want to take us through it? Yes, sure. So, as you mentioned, former White House Chief of Staff Mark Meadows tried to remove his case from Fulton County Court, the state of Georgia, to federal court, the Northern District of Georgia. And Judge Steve Jones, who has been on the bench for more than a decade, an Obama appointee, ruled against Meadows and said that there was no federal jurisdiction over this case. He therefore remanded or sent the case back to Fulton County Superior Court. The ruling applies only to Meadows, not to the other four defendants who have sought removal, and not to former President Trump, whose lawyer, Steve Sado, said last week that may also seek removal.

And according to a lot of analysts, including Norm Eisen of Brookings, and I happen to agree with them, Meadows had one of the stronger cases for removal. He was White House chief of staff. And so if he couldn't get removal, I think it is unlikely that the other defendants will get removal. So as we've discussed on this podcast, there are three factors in terms of whether or not a federal defendant is entitled to removal. First, you have to show that you were a federal officer. Second, you need to show that your actions at issue were taken under color of that federal office. So it has to be related to your federal job. It just can't be some random thing you were doing. And then third, you have to show a colorable federal defense,

meaning that there is some reason under federal law that this prosecution should not go forward. So those are the factors. Judge Jones, of course, found that Meadows was a federal officer. The other side conceded that. Fannie Willis, Fulton County DA, did not dispute that. But interestingly enough, he resolved it under the second factor. He held that the acts taken by Meadows in relation to the 2020 election were not undertaken under color of Meadows' office. He declined to reach the third factor, whether Meadows had a colorable federal defense to the prosecution. What's interesting about this opinion, David, not to, well, okay, to toot our own horn a little bit. Hey, this is a toot our own horn podcast because we have the whole last section of it devoted to talking to somebody who really likes our podcast. So we'll toot our own horn a little bit.

This opinion, including the reasoning, would not surprise you if you listen to this podcast, because one part of the reasoning was the judge highlighted the Hatch Act element here and essentially saying, look, if he's involved in campaign activities, he did not say Meadows has violated the Hatch Act. There was not like a ruling on the merits that he had violated the Hatch Act. There was not like a, there was not like a ruling on the merits that he had violated the Hatch Act. He was basically just saying, look, political stuff can't be part of his official duties.

It just can't be. So, and the Hatch Act, you know, and Meadows admitted he was subject to the Hatch Act. And so essentially what, and the other thing that was interesting to me about this ruling is he said, no, I'm not going to look at any individual discrete acts, like every single overt act in the conspiracy. I'm going to look at what was the conspiracy about? What was the

Grothman? What was the thrust of this conspiracy? And the thrust of this conspiracy was, had nothing to do with his official duties. The fact that at certain points within the conspiracy, there were things he was doing, such as keeping up with the president's calendar, sitting in on meetings, as the chief of staff tends to do, that were consistent with what a chief of staff does, that doesn't entitle to removal. And if I'm sitting there, I'm thinking, okay, what are my grounds for appeal here? What could potentially derail this opinion? That was the part I zeroed in on, David. I was thinking, okay, is the court of appeals going to buy that what we're looking at is the sort of the big picture as opposed to sort of the small picture of the individual actions. And so I really wanted to know, what do you think of that? Is that analysis, in your view, likely to hold up on appeal? I agree with you, David.

I think that that is the concern. And by the way, Meadows has already filed his notice of appeal. So this will go to the 11th Circuit and possibly the Supreme Court. I agree with you in the sense that I think critics of the ruling would say that Judge Jones basically assumed what he was supposed to be deciding in a way, if that makes any sense. He basically said, well, I'm being a little crude, but stealing an election isn't part of your duties. But I think Meadows would argue, no, you can't conceive of my actions as stealing an election. You have to think of, I was scheduling a call for the president like a chief of staff does. I was liaising with state officials like a chief of staff does. So I think that's how he would reframe it. And he would say, you undertook the wrong analysis by

undertaking this so-called sort of part of the offense or whatever it was called, inquiry, you basically bought the prosecution's analysis. That said, I think he's going to have a hard time on appeal. I think that there is still the issue of the colorable federal defense, which I think if, and I said this in my newsletter, original jurisdiction, if I were him, I would have probably bulletproofed this a little more and said, first of all, you don't have, these actions weren't under color of a federal office. But then even assuming arguendo for the sake of argument they were, you still don't have a colorable federal defense because those two inquiries are pretty intertwined anyway. So he might as well have just done the belt and suspenders anyway. Look, now I think that if this were to go up and if they were to reverse, I don't know

necessarily that they would send it back or remand for him to redo the third factor. They may just make some decisions of their own. But I don't know. We'll see what happens. But I agree with you that that's the vulnerability. Yeah, that's the one. If I'm sitting there and I'm wearing the hat of his lawyer, I'm thinking, whoa, whoa, whoa, you kind of, didn't you kind of beg the question here? But at the same time, the Hatch Act analysis just looms over everything. That on the one hand, you can say, well, setting a meeting for the president is what a chief of staff does, but is the meeting to talk about winning Georgia? does, but is the meeting to talk about winning Georgia? That's not really what we're, you know,

that's not what the chief of staff is supposed to be doing. That's when you're talking about, well, he's putting on a different hat. He's got that different hat on because if he had on the chief of staff hat when he's talking about trying to reverse Georgia, doesn't the Hatch Act loom large? And so it feels to me that the Hatch Act element of this is sort of saying, okay, wait a minute, if you're going to say that what you were doing was officially a part of your official business, are you kind of admitting to a Hatch Act violation at that point? Now, Hatch Act is federal, not state, but it does hover over everything in a way that when the court was bringing up other precedents from other removal cases,

they don't have that Hatch Act element kind of looming over everything. And I thought, in my view, that was by far the most persuasive part of the opinion, and I'm not quite sure how he gets out of that. And another thing I would point out that's quite interesting is Judge Jones also has a significant discussion of federalism concerns, which is interesting because usually you think federalism, federalist society, this is a conservative thing. But Judge Jones, as I mentioned, is an Obama appointee. And here, I think, is the money line from the opinion.

Jones, as I mentioned, is an Obama appointee. And here, I think, is the money line from the opinion. I'll quote, quote, assuming jurisdiction over this criminal prosecution would frustrate the purpose of a federal officer removal when the state charges allege not state interference with constitutionally protected federal activities, but federal interference with constitutionally protected state actions, close quote. And not only that, icing on the cake, to talk about why presidential elections are consigned to the domain of the states, he cites, lo and behold, Moore v. Harper and the Elections Clause of the Constitution, which gives states and state legislatures the main role when it comes to elections, not the federal U.S. president. So I think that was a very interesting point,

because if you think about the point of federal removal, it's to protect federal officers from state meddling. And here you could argue it was the federal officers who were trying to meddle into an area that's given to the states by the Constitution. Yeah. And there was another interesting part that where he's talked about, okay, the legislature has a lot of role, has a big role in governing and defining the rules of a federal election. Although of course the state legislatures have an enormous role in the defining the rules of each election for state electors.

defining the rules of each election for state electors. But then he goes and says, the executive branch has almost no role here. Like there's, what's the executive branch role? Now there is an executive branch role for law enforcement purposes. So if you're talking about investigating federal crimes, for example, but that's a silo.

There's a particular way in which that's done. I just, I thought that was fascinating. And there's this other element, David, that I think is really interesting that I'm seeing emerge in the federal judiciary more broadly from Supreme Court on down. Every judge out there is getting more fluent in originalism and textualism, whether they're nominated by a Democratic president or Republican president, because they know the terms of the debate now. And what's fascinating to me is how, A, how fluently a lot of these more progressive judges

are able to speak originalism and textualism, and B, to continue to hit an advisory opinions theme, how arguable these cases are. In other words, where originalism, it's not like, as we've talked about it before, like digging for gold or finding that medical diagnosis where you're going to reach the absolutely objectively pure answer. Originalism much more just sort of sets the terms of the debate more than decides the outcome of the case. One other observation I would make about this case is it's interesting. It also, as several analysts have pointed out,

goes to the merits in a way of Trump's defense in the sense that if there is no viable defense for what he was doing as a matter of federal law and his prerogatives as president, then how is he going to defend in this case on the merits? So even though this was a procedural and preliminary inquiry, it does perhaps foreshadow what will have to happen when you get to the merits of it in his substantive defense. You know, it really does, in my view, I think that's a great point. It really does, in my view, demonstrate the extent to which that intent element is going to just loom so large. In other words, his defense is going to basically be, have to be, I wasn't lying because I thought I won. But, you know, a lot of people who are defending Trump say, I won. But, you know, a lot of people who are defending Trump say, well, that's his Trump card,

so to speak. But no, I mean, if I'm a defendant, I want something other than just this one big factual dispute that lands in the lap of the jury. And which means, you know, when when you're when you're a criminal defendant in your case is revolving around a fact dispute for the jury. And that's the at the end of the day, it's going to be resolved by a fact dispute for the jury. That's a terrifying thing, David. That's a very scary thing. And that's when a lot of people plead these things out because there's that jury. There's been a big education in the criminal justice system more broadly, but one of the factors of the criminal justice know, there's been a big education in the criminal justice system more broadly, but one of the factors of the criminal justice system is there's kind of a jury penalty, right? That if you roll the dice with the jury and you lose, that's when you look at the real

jail time. And you saw that with some of the proud boys who rolled the dice with the jury and got smacked with from 22 years to 17 years. And they're saying, well, if I'd pled out, I wouldn't have had anything like that. And correct, correct. That's the way our system is working for good and lots of ill, by the way. But that's what Trump is facing. In my view, he's got a fact question here and he should be nervous about that. It's going to be interesting as that sinks in, not just with Trump, but the other defendants as well. Because I don't think there's any scenario where Trump pleads. No.

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and boys are like snakes and worms and puppy dog tails or whatever. And then it talks about the little girl that when she's good, she's very, very good. And when she's bad, she's horrid. That's how I think of the Fifth Circuit in online speech. When it's good, it's very, very good. When it's bad, she's horrid. That's how I think of the Fifth Circuit in online speech. When it's good, it's very, very good. When it's bad, it's horrid. So we've actually talked about the Fifth Circuit being bad in one case, which is, this is the case involving Texas's social

media moderation law. The Supreme Court kind of rebuked it and the Fifth Circuit didn't care and upheld, at least so far, the Fifth Circuit, the guts of the Fifth Circuit social media moderation law. And that's going to be ultimately likely decided by the Supreme Court. But that's where they're not so good. The state interfering with the private businesses' speech moderation policies, no bueno in my view. But here, in this case, very different. And this case was really interesting because the lower court decision got a ton of attention because this was the lower court decision in a case involving social media moderation and the government's attempt to persuade or coerce, this is Missouri v. Biden, persuade or coerce social media companies

to take down content. So in this case, there's plaintiffs, three doctors, a news website, a healthcare activist in two states, had posts and stories removed or downgraded by their platforms. I'm reading from the opinion here. Their content touched on a host of divisive topics like the COVID-19 lab leak theory, pandemic lockdowns, vaccine side effects, election fraud, Hunter Biden laptop story. It's like the greatest hits of sort of, you know, of right-wing complaints against social media moderation. It says the plaintiffs maintained that although the platform stifled the speech, the government officials were the ones pulling the strings.

They, quote, coerced, threatened, and pressured the social media platforms to censor them through private communications and legal threats. So they sued the officials for First Amendment violations and asked the district court to enjoin the officials' conduct. Now, this is the case where the district

court, Sarah and I talked about this, issued, David, would you say one of the broader injunctions? Yes, extremely broad. Judge Doughty issued a very broad and I think somewhat confusing injunction. And again, you and Sarah talked about this, I think, back in July when it came down. Yeah. It was so broad that it was an open question whether, like, let's say you're a janitor and you worked at the DOJ and someone in social media had put up, like, revenge porn that would violate social media

moderation guidelines that if you complained about it that you might be violating the injunction. Like, it was broad. It was vague. Now, defenders of the injunction will say, no, no, no, no, there was fine print that would allow. But it was confusing. It was very broad. And Sarah and I talked about the case as one in which it was a very interesting mix of genuinely troubling attempts to coax social media companies to take action and sort of just normal stuff. It was an everything. It was thrown against the wall. And the district court sort of took it all in and said, all of it's bad.

I'm enjoining all of it. The Fifth Circuit didn't do that. The Fifth Circuit basically said, some of it's bad and we're going to enjoin some of it. And the analysis was really interesting, David. Okay, this is going to be a deep pull for long-time advisory opinions listeners,

but I'm going to bring up a case called National Rifle Association versus BULO. So this is a 2022 case. We've talked about it on this podcast as sort of providing one of the most recent circuit court opinions, providing a framework for what is coercion.

And this is the case where a New York state official, and I'm reading from the opinion again, quote, urged insurers and banks via strongly worded letters to drop the NRA as a client. In those letters,

the official alluded to reputational harms that the companies would suffer if they continued to support a group that has allegedly caused or encouraged, quote, devastation and tragedies across the country. Also, the official personally told a few of the companies in a closed-door meeting that she was, quote, less interested in pursuing the insurer's regulatory infractions so long as they ceased working with the NRA.

But the Second Circuit found that both the letters and the statement did not amount to coercion, but instead permissible government speech. And David, I've long said I don't like that case. I thought what happened to the NRA crossed into coercion. It was not permissible government speech. Second Circuit disagreed with me. But I've never heard your thoughts on the case. No, I do share your concern. And I would speculate that if this same Fifth Circuit panel got the facts of the Vulo case, even though they claim that their ruling is consistent with Vulo based on the four factors,

I think that they would have come out the other way. I think that they would have found some crossing of the lines in the Vulo case. And one thing that the panel does here, this was a per curiam opinion, by the way, so we don't know who authored it, judges Clement, Elrod, and Willett. One thing that the panel does here is they talk about two things. One, there's something called coercion, which I think you know what that is. And second, also impermissible from a First Amendment perspective can be strongly encouraging an actor, a private actor, to do something with the threat of some kind of enforcement action. of some kind of enforcement action. And I think you could argue in the Vulo case,

the language you just read, when Maria Vulo tells them, okay, we're not really interested in going after you as we have the power to do, as long as you stop working with the NRA, you could argue that that is the strongly encouraging that crosses the line. Yeah, no, exactly. That's how I felt about the case when I saw it was, how do you, and then even in the, here are the four factors. One, the speaker's word choice and tone. Two, whether the speech was perceived as a threat. So in other words, did you have that subjective perception? The existence of regulatory authority, and perhaps most importantly, whether the speech refers to adverse consequences.

authority, and perhaps most importantly, whether the speech refers to adverse consequences. And this is what was interesting. In the Vulo case, the speech didn't so much refer to adverse consequences as benefits of doing what they said, which was, you know, maybe we're not going to take as close a look at you. What surprised me was the Fifth Circuit basically said, yeah, that's our framework. Those four things, that's the framework, which I do not read that framework as particularly speech protective. I do not see that framework as particularly protective against government coercion. But then it went through, applied those four factors and found that multiple, multiple lines of communication with the social media companies from the Biden administration crossed that line, met that four factor test. And David, when I went through the opinion,

I agreed. I agreed. I think what was interesting about some of the communication from the Biden administration was how much it was delivered in a command, and I'm not going to say tone, but because it was tone and content. of command authority. And that's what was so striking about it, which was different from some of the earlier Twitter files disclosures, for example, that came out of some of the Matt Taibbi stuff, where the kind of the format of the request would be, here's some content to take down or not according to your policies.

That was not the kind of command coercion communication that really got examined here in this case, where it appears that there were Biden officials who used the, or at least tried to create the perception of command authority in their communication. It was hard for me to find fault with the ruling. Yes, I think it's a well-done ruling. And what I appreciate is the Fifth Circuit panel really goes through the different officials and the different communications and parses it, I think, as you mentioned, with a finer level of granularity than Judge Doty did. would say things like, this needs to come down ASAP, or what is the point of having this process if things stay up for so long, or something like that. Basically, how you would talk if you're an employer to your underling, or how some imperious person might talk to their household help or

something. It was very much like, what's going on here? Come on. As opposed to, hey, here's this thing. Here's your terms and conditions. I think this thing violates your terms and conditions. But hey, you're the judge of your own terms and conditions. That will be one thing. But to say this needs to come down ASAP, that's a whole other thing. process that is generally available to the public. So, for example, I can report a tweet. I can report a post on threads. I can report all of that just as me, just a dude, you know, in Tennessee. And so a lot of the ways that people defended the government action here overall was to say, oh, wait a minute, they were just availing themselves of reporting opportunities that are generally available. And okay, to the extent that they were, even though the FBI may have been much more diligent, say, than your average member of the public, but if they're availing themselves of a public reporting process without using a, quote, command authority, I get that.

I get that. And there is such a thing as government speech. There is a government bully pulpit. It does exist. But you're right, David. That switch over with the Biden administration to why is this up? This needs to go down ASAP.

That's a different thing. And I don't think it's a defense to say, well, this very sophisticated company knew that it had legal defenses to any takedown demand. Because part of the coercion is the idea that, well, if you don't do what we say, you might go through a legal process. And the fact that you can defend yourself in that legal process doesn't mean it's not coercive, but there was a clear, clear implication that it was a take down dot, dot, dot, or else that pervaded through much of this communication. Exactly. Exactly. And I think the record also showed that in some cases there were special procedures or

special back channels that the government had, which you or I or random citizens would not. One thing I would point out about this is, depending on how you want to view it, I think conservatives celebrated it as a win because the panel did find that the Biden administration violated the First Amendment. But if you were on the other side of the aisle and you wanted to say this was kind of a win, I think you would point out two things. One, Judge Doty's order had 10 prohibitions, and the panel knocked out nine of them in modifying this preliminary injunction. And it basically left standing the one that says you can't coerce or strongly encourage

in violation of the First Amendment. All the other prohibitions would have barred pretty innocuous kinds of communications, like the example you gave involving the janitor. So one, they significantly, sharply, I would say, narrowed the scope of the injunction. And then two, they cut back also significantly on the number of parties or government actors it covers. So here, they find that the First Amendment was violated by, and therefore this injunction will apply to, the White House, the Surgeon General, the CDC, and the FBI. But as to a whole bunch of other entities, including the State Department, and I think part of DHS and all of this, they reversed it as to all of the other officials. So if you're trying to defend the administration,

I think you can argue, look, this injunction was overbroad. They cut out 90 percent of it if you just go by the elimination of nine out of 10 prohibition. And they also cut out a lot of the defendants. Yeah, I'm so glad you raised that because in the aftermath of the original district court injunction, there are a lot of people saying, see, all of everything that we were talking about was unconstitutional. You know, all of our complaints are vindicated. And I was thinking, were they though? Because't think that anyone on the polarized wings comes out of here with their narrative intact. Let me just put it that way. Because if you're on the far right and you have this long beef against social media, that essentially what had happened is for years and years, the social media companies were in active cooperation, violating the First Amendment rights of more right-leaning citizens. cooperation, violating the First Amendment rights of more right-leaning citizens. This doesn't bolster that view. But if you're on the left or if you're a defender of the Biden administration, say, yeah, the right's crazy.

All of what we did was totally fine. It was just government speech. We never crossed any lines. They're paranoid. Nope, you did cross lines. Now, it's not the whole Twitter file suite of lines, but you did absolutely cross lines. And what it struck me, David, is it seemed like you had really some people, I don't know if you would call them what level in the administration, but certainly not highest levels. But it really struck me as you had some bureaucrats within the

Biden administration really feeling their oats, so to speak. I mean, really pushing the envelope in some pretty blatant ways. Now, again, not the full way, you know, not the full injunction that the lower court granted, but absolutely in ways that were beyond, certainly beyond what we saw in a lot of those initial Twitter files dumps that this was pushing the social media companies in a way that hadn't really been explained fully, I don't think, in the media because the initial media explanations were so focused on the initial Twitter files dumps. Yep, yep, exactly.

One thing I would point out is they did stay their ruling, an administrative stay for 10 days to allow for the administration to appeal to the Supreme Court. It's not clear whether they will or not. I don't believe the government said whether they would or not,

but we could possibly have a SCOTUS shadow docket type ruling if they do. And to see whether this injunction is allowed to go into place or not. I mean, we could have this term actually ultimately end up to be the tech term that we thought last term was going to be. Because we do have the net choice appeals regarding the social media rulings. Solicitor General is weighed in. So we're waiting to hear how the Supreme Court is going to dispose of those cases. Then we've got this. And so we might have two sort of different sides of the same coin.

One where the state's teeing up its ability to formally restrict moderation versus the state teeing up its ability to informally moderate. It's going to be interesting. I find it difficult to believe that the Supreme Court won't take any of these cases because we do have the 11th and 5th circuit split on social media moderation. I don't know. Put on your forecasting hat, David. Where are you seeing this going? Oh, they have to take the 5th and 11th circuit. This is such an issue of incredible importance, and it's super interesting, and there's a split. Of course, they have to take it. I would also, to any SCOTUS clerks or justices listening to this podcast, put in a pitch for

something like this case too, this Missouri v. Biden case. I think this is also an important issue, the extent to which the government can coerce or cajole or convince social media companies or other private actors to clamp down on speech. This is an important issue, especially for the digital age. And what I think is good about this case is it has a pretty robust record, even though it's just in the preliminary injunction phase, because you have all of these communications from these different agencies, and the Supreme Court could do what the Fifth Circuit did and go through the different communications and the different agencies and actors and parse it all. So I think this would actually be a very interesting case. And I think

you could argue that there is a tension, even if not a formal split, between a case like this one and the Second Circuit case involving Vulo. And there's also a Ninth Circuit case as well. So I think this would be super interesting.

Oh, I think it's very interesting. I want them to take one of these cases because one thing that I would love to see is if they're going to adopt the Vulo test. Does that become

the law of the land? Does that become the test? What is the test going to be? Because it really was interesting to me when the Twitter moderation issue arose and the Facebook moderation issue arose, that the coercion case law did not strike me as terribly coherent. It did not. You had a Supreme Court case decades old that really established what seems to be sort of the clear case, you know, when there's going to be threatened law enforcement involvement and that kind of, you know, the threats of arrest. And we'd seen that

in some lower court cases, but really wasn't helpful for the edge cases at all. And it just didn't strike me as very as coherent. And the bigger government gets and the more it interacts with different aspects of American life, that line between coercion and persuasion is going to be it's going to need to be drawn and need to be drawn a lot more sharply than it is right now. Yep, absolutely. All right. Shall we move on to our little quick announcement before we get to a discussion about how great this podcast is?

Very quick announcement. Very interesting outcome. Many of you guys will remember a friend of the pod, Chris Bogart, who is at Burford Capital. He's been a guest a couple of times and talked about litigation financing. Well, they want a big, big, big case. And I'll just read from the opening of the Wall Street Journal story about it. A federal judge in New York on Friday ordered cash-strapped Argentina, the nation of Argentina, to pay about $16 billion

over the government's decision to seize majority control of the energy company YPF in 2012. It says, following a trial, U.S. District Judge Loretta Preska ruled in March that two YPF in 2012. It says, following a trial, U.S. District Judge Loretta Preska ruled in March that two YPF shareholders were owed compensation for the unlawful expropriation. On Friday, the court set the parameters for calculating the damages and interest Argentina owed to the litigation financier Burford Capital, which had taken on a lawsuit on behalf of the investors. which had taken on a lawsuit on behalf of the investors, shares of Burford Capital jumped 15% and 23% on the New York and London stock exchanges, respectively. And interestingly,

the court in a footnote to the decision basically said, so this Argentina tried to make an issue of Burford Capital's involvement in the case. And the court, in a sharply written footnote, basically said, nope, that's not the issue here. The issue here is not who is the litigation financier. The issue is, what did you do, Argentina? What did you do? That is the issue. Absolutely fascinating. do. That is the issue. Absolutely fascinating. I have, you know how yesterday or last week,

David, I said, I only had a GED rather than a PhD in Wisconsin Supreme Court shenanigans. I don't even have a GED on collecting large judgments from sovereign nations. So I can't opine as to, and I need to look into this as this case progresses, but how do you, what is the process? How realistic is it that you're going to collect $16 billion? But my goodness, David, what a result. Yes, absolutely. Big congratulations to Chris and Burford. I had

them on my original jurisdiction podcast also. And we did talk about this issue of collectability because Argentina is the deadbeat debtor of the international community. And so people might say, well, the $16 billion isn't just funny money. If they weren't going to pay you the original debt, how are they going to pay this? But I would point out something. Now, Chris acknowledged that, look, they're going to drag this out. They already said they're going to appeal to the Second Circuit. It's going to be a while. But once you have those final judgments, historically, at least, Argentina has coughed up. There was a situation in 2016 where there were some other funds who were holdout creditors. And they turned down offers to settle for 30 cents on the dollar in 2005 and 2010. And they litigated and litigated and litigated. They got their big final judgments.

And in 2016, when Argentina had exhausted all its legal avenues. They paid the holdout creditors, agreed to pay and did pay the holdout creditors 75 cents on the dollar. So look, Burford is not going to get its $16 billion and it's certainly not going to get it right away. But after Argentina loses in all of the other venues, which I think it will, they will cough up some portion of the money. They will negotiate something below the face value. But I think it'll still be a home run for Burford because

they did not invest very much in this case. And so even if they get a fraction of the $16 billion, it will still be a home run for them. The thing I would mention about collection is this is also a whole interesting area. When litigation funders consider cases, as Chris was telling me when I was interviewing him, one of the things they have to consider is collectability. Because A, the case could be meritorious or not. B, the damages could be large enough or not. And C, the damages have to be collectible. So with sovereigns, that can be tricky. But to the extent that they have assets in the United States, you can try and basically go after those assets.

Maybe they have some bank accounts. Maybe, you know, there are all kinds of funny fact patterns involving seizing boats and things like that. So I think things could happen like that. But at least based on what happened a couple of years ago, Argentina probably isn't going to make them do all of that. It will probably settle for something below the $16 billion face value.

And that, ladies and gentlemen, is why we have co-hosts. Because I didn't even have a GED and David comes in strong with a much fuller explanation of this issue. I had not known that Argentina does have that history of kind of coughing up. Eventually had not known that Argentina does have that history of kind of coughing up. Eventually. And you have to really, you know, they'll go to the Supreme Court. You have to basically beat them down in every forum and then they still won't pay you 100 cents on

the dollar. Well, and it also then that process that that, you know, going to the mat and in litigation demonstrates in many ways sort of that the value of the litigation financing arrangement because it's the very people, it's the very litigants who can wear you out that often end up, you know, prevailing simply because they drain you of resources. And what litigation financing does is says, wait a minute, you've got a good case, resources and what litigation financing does is says, wait a minute, you've got a good case and we're going to make sure that this thing will be actually prosecuted, that this case will actually be litigated all the way through. I think it's fascinating, absolutely fascinating business model. And we've had, as I said, we've had Chris on a couple of times. I'm sure we'll have him back

once you reach certain friend of the pod status, there's just like an open invitation. But fascinating, 16 billion with a B. All right, so David, on to our guest. So David, let's turn to our guest vanessa atero and vanessa we're really glad to have you and before we sort of dive into the conversation i want to talk about how um you caught our eye and basically when somebody says something or puts out data about us that we really like. We're just human beings. We're drawn to it. And I saw and Sarah saw one of your charts that you guys do that was the media bias chart. And we'll talk more about this, but media bias chart. And I was for podcasts and I was looking for

advisory opinions. And oh, my goodness, it was exactly where we wanted it to be on your chart. And so to describe a little bit about the chart, what the chart does is it has an up and down access that is reliability with an emphasis on, at the very highest level, you're talking about high effort fact reporting. the very high, at the very highest level, you're talking about high effort fact reporting. And then you have also a mix of fact reporting and analysis or simple fact reporting. That's where we are in. That's the quadrant that we're in. And then it goes all the way down to contains inaccurate, fabricated info, contains misleading info. Thankfully, we're far from there. And it has an extreme left skew and an extreme right skew. So if you look at the chart, and we'll put the chart in the show notes, you see where most of your or all of your big media outlets from podcast, audio, TV, video, website, articles, where they fit.

And we fit smack in the middle between balance with the middle or balanced bias and right at mix of fact reporting and analysis or simple fact reporting. And Sarah and I, even though we live in different cities, gave each other a virtual high five over this. So we didn't actually invite you on to talk about how great this podcast is. But what we brought you on is I'm just fascinated by the chart and by the process. And so if you could sort of give us some backstory about the chart, the process, why you started all of this, I'd love to hear it. Great. Well, thanks so much for having me on. And

I'm glad it caught your eye. And I'm glad to be on this podcast because in part of where it's rated on our media bias chart. So this started and my company is called Ad Fontes Media. I'm the founder and CEO. But it started out of a passion project back in 2016. Another reason I'm a fan is because I'm a lawyer. background. I was practicing as a patent lawyer in 2016 when I wanted to bring people together in a slightly more effective way than just arguing with people one on one on social media. But we all know how that goes. People read sources and listen to sources, watch them that are all over the political spectrum. And they tend not to be able to convince other folks just by throwing them articles from my own analysis, my own initial taxonomy and methodology for placing new sources that I was familiar with and some that I wasn't previously on a visual, you know, two-dimensional infographic. And it went viral much to my surprise. I mean, as you can imagine, a lot of people on the internet have opinions about how

biased and reliable their information sources are. So fast forward, this is seven years on now. It's not just me. I have a company and a large team of analysts. We have over 60 analysts currently. And what's unique about our process is it's all about analyzing the very content of news and informational content across websites, podcasts, TV, and video. And our analysts are from across the political spectrum. They themselves are left, right, and center. And each piece of content that we rate that you see on our chart, if you go to our site, our interactive media bias chart will actually show you the individual episodes and the individual articles that we've rated. And it sort of looks

like this in a Zoom room in the paws of three people, one left, one right, one center, and they come to consensus on the overall rating of each piece of content. I'm curious, what is the company's revenue model? It's such a worthwhile project. So I'm curious about how you're able to fund it. Great question. I asked myself at the beginning, wow, this would be, you know, people seem to really want this data and this methodology and to add more news sources because there are so many out there. And I thought, you know, what if we could rate all the news? All the news is a lot of news. So I wanted to create a model that would be sustainable and not just have this cute little project because there is really a need for news ratings. And I started it as a public benefit corporation.

So it's for profit and we have a stated public mission. And our revenue model is primarily to the advertising industry. So selling our data to brands and the various agencies and tech platforms within that ecosystem to help guide them towards the reputable journalism and away from the content that sort of mucks up the entire internet, society, et cetera. But would some advertisers maybe be interested in finding who are the

conservative or liberal or progressive outlets if they're trying to reach those audiences? who are the conservative or liberal or progressive outlets if they're trying to reach those audiences? Yes, certainly. But, you know, there, well, you can, you can do evil with a lot of, with anything, right? So that was something that we asked ourselves, you know, really early on and like, how, how do we guard against that? So one is in our terms and conditions that you cannot use our data to actively target the most extreme voices or the misleading, inaccurate information. We actually sort of stay away from the terms misinformation and disinformation for a reason, you know, certain reasons, like they've gotten very politically co-opted. It's, there's, there's nothing wrong with necessarily trying to There's nothing wrong with necessarily trying to target a left-leaning, right-leaning center audience, right? But it's so often folks think of that as such a binary, right? People are either conservative or liberal or Democrats or Republicans or centrists.

And the nuance gets lost, right? the nuance gets lost, right? So when you think about elections and like swing voters, you know, there are folks that are center, center left, center right, maybe a little bit stronger left and right. And there are publications that are, you know, that really resonate with those folks or arguments that really resonate with those folks. So, you know, it makes a difference to distinguish between things that, you know, are left-leaning or right-leaning, So, you know, it makes a difference to distinguish between things that, you know, are left-leaning or right-leaning, but, you know, highly reliable and things that, you know, devolve into, you know, vilification and dehumanization and ad hominem attacks, etc. So, I can imagine. So, I remember the first time I saw your chart is it was shared in Dispatch Slack.

I remember the first time I saw your chart is it was shared in Dispatch Slack. No way. It was even before then. So it was before then. And so I remember seeing the chart and it created an enormous amount of conversation internally about where each person was or, you know, each entity was marked and a lot of agreement, actually not that much disagreement, but intense interest amongst my fellow journalists as to where different outlets were. And so one of the questions I had is, do you get lobbied? In other words, do outlets come to you and say, we really don't like where you put our podcast or we really don't like where you put our podcast or we really don't like where you put our website

in this chart? And if so, how do you account for that? Or are they kind of leaving you alone? Oh, we definitely hear from folks and it really depends on exactly where they are on the chart, as you can imagine. So even from the very beginning, as you can imagine, folks that are really far out to the left and right and very low, you know, they sort of know what they're doing, right? They're not interested in like improving their rating with Ad Fontes media. They're like, who are you? And then they can just sort of use it as fodder. So like make their own chart. Infowars actually did that with the first one. It was pretty hilarious.

Infowars is the Alex Jones outlet for those who don't know. Yeah. And so, you know, with the extreme voices, that's one thing. But then you've got folks that are rated high, you know, how you found us, right? Folks are very interested. Like, oh, great.

Like, this is what we've been trying to do. You know, thanks. And can we use this in our ad sales? Or could you audit us? We've had publications look for audits because they get complaints of bias and they're trying to hit the middle of the road and they just want a sanity check. As you can imagine, you all probably know this, when you're trying to be fair and in the middle, minimally biased as possible, you still get attacks from left and right. You still get lots of criticism. Sometimes.

Sure. Yeah. Pretty harsh. Right. So we provide those sanity checks for outlets that reach out like that. that. And what we do, you know, for folks that are sort of in the middle, hey, you know, we thought our podcast wouldn't be quite this far left, or maybe it should be higher than this other one on the other side. It's about the same. You know, often it's just an inquiry, like they're interested in knowing exactly why. So we have our analysts take notes on each piece of content, especially if it's rated really low. So we have citations for it.

So, and I, you know, as I'm, I'm thinking through this, so you market to advertisers. There is a question I always get from, from people just in my life. And that is, okay, David, I read you. They'll sell, they'll say that because I'm standing in front of them. Or I listen to you. Maybe they do or maybe they don't. But who else? Who else is reliable? Who else is just going to kind of give it to me straight? And my answer is typically been to sort of focus on people, not outlets. Like, okay, here's a reporter that I found really reliable. Here's a podcaster that I think is really, really interesting. But it strikes me that pointing people to this chart, that there's sort of a consumer facing use for this chart. In other words, to sort of say, okay, here, we've had people left, right and center rate these various news outlets. And have you have you pushed it out in any way in sort of that consumer-facing way as opposed to advertisers? Yeah, definitely.

That's really how it got started. I mean, I created this chart not thinking that, I created it to share it with my friends to talk about politics. I mean, I didn't really think that there would be some sort of like advertiser data, you know, ad tech thing, which I know a lot more about that

than I ever thought I would. But it started with consumers and educators. People would share this with their friends because it was sort of this rare thing, especially in 2016, 2017, where the level of vitriol around that particular election on social media and like how Facebook shared news back then, you had really caused a lot of divisions among family members and friends. Like people just unfriended folks so quickly. And this was a way where like, even if people disagreed about the relative placements of news outlets, they'd say, oh, CNN or Fox needs to be higher, lower, left, of news outlets, they'd say, oh, CNN or Fox needs to be higher, lower, left, left or righter.

They still have this common framework that they could use to talk to their political opposites, as long as they're not too far gone. And folks would say, okay, well, I'll tell one on myself. I know the sources I've been listening to are maybe a bit more biased than I should be listening to. So let me try to move up the chart a bit. And so it really got this popular traction among consumers. And today, our website, most people that visit it are consumers and educators. consumers and educators. It's an interactive version where you can just search any of like 3,000 news sources, news and information sources that we've got on there. And so when people get forwarded some crazy rumble video, they can, they're not quite sure about it, they can go look it up. And it's, that's, that's a service. We do have some consumer education. We do have a big part of our business also is media literacy education in schools because

we saw this as getting used by teachers to combat the accusations of bias by teachers themselves, right? Like, here's a reference, a third-party reference. Also, don't take their word for it. You analyze the news sources on your own. Learn to analyze and see how reliable a bias something is yourself. So I'm curious, Vanessa, as a voracious consumer of news who's been doing this for years now, do you think the problem of polarization is getting better or worse?

Great question, David. better or worse? Great question, David. Great question. That's a tough one. And it's, the causes of polarization are overdetermined in the first place, right? And we focus on media sources as how biased and unreliable they are and the role they play in polarization. And I think it's certainly an accelerant, right? Like you look at all the websites, look at all the podcasts, look at all the TV shows, the YouTube channels, right? They exist in their own formats, but then they get shared on social media and they get amplified.

But then they get shared on social media and they get amplified. And, you know, sometimes you need a link to a really terrible, misleading, polarizing website to share with your friends to talk about it and to personalities so they can amplify it. And then they can have elected officials on their shows talking about said information. And then it just gets into our, weaved into everything about our interpersonal conversations, our politics and our media. And I think each piece of that is an accelerant. I don't think it's gotten better since 2016. It's just gotten different, right? Like Facebook doesn't have a newsfeed anymore. But, you know, the ways in which this polarization vortex keeps itself alive, it's just in a lot of places and the media sources themselves, individual media sources themselves are just a big part of that. So I'm curious, when you have your team, and it's, I think it's fascinating, you have this left, right and center sort of analysis. How fractious is the analysis sometimes? Or does the team actually come to a degree of consensus relatively easily? But it strikes me that you've kind of pulled off something unique if you've got like a left, right and center analysis,

and it does regularly reach consensus. But how difficult is that process? You know, it works a lot more often than it doesn't. And it's really surprising, given the volume of content that we rate. I mean, this sounds crazy, but only about less than 1% of the content that we rate every week has to go to a second pod. That's how we elevate it, right? And it's a function of a couple of things. One, yes, this is a unique space where you have, you know, Left Right Center folks coming together literally all day, every day in shifts in Zoom, talking to each other about news and politics today and about the

most contentious issues about race and abortion and guns and Trump, right? Every day and getting along, being respectful of each other. And it's the sort of thing that would give you hope for America, just to hang out with our analysts. But it's a function of the fact that they're not trying to convince each other of the ultimate rightness or wrongness of the underlying position, right? They're talking about it through a layer of abstraction, which is the piece of content. It's the article. How biased is this article, right? This article is talking about abortion. How left or right is the position being advocated in this particular article? How reliable, how dense with facts is this particular article? And those are the criteria that they're looking at. I mean, they're looking at it for purposes of analysis.

And that's hard when they first start and when we're first training analysts, especially when it comes to TV and podcast content. So imagine, you know, you're on the left or you're on the right, and then you have to sit through an hour of like the most offensive opposite side content and just just sit there right it makes people feel nauseous and but it's when they look at it from the point of view of like you're breaking down the component pieces and trying to score it right like try to put it in a part of the chart. You know, the definitions of each category are really specific, right? So a left and a right and center person can look at a CNN opinion article that is left-leaning

and they will all say this is left-leaning opinion and they're just hardly any points apart at all, right? So we do have some where the political issues, you know, they evoke emotion and folks want to talk about the underlying arguments there, but it's remarkably rare for how often we're doing this. That is fascinating. Yeah. I, you know, when you were talking, I was sort of reminded of my wife a couple of years ago, thought about writing a novel based on the experience of Facebook moderators because she had read some

really long and actually talked to some Facebook moderators who, this is a little different from your situation, but they're exposed to hour after hour of content that they would never seek out themselves and sometimes is really horrible. And they, you know, there's predictable mental health issues that result from that. So I know it's not the same thing as being a moderator in the sense that you're seeing stuff that should be literally pulled from the Internet. But does it have an impact on your on your folks to sit there and just marinate in this stuff and stew in this stuff all day? Yes, it certainly does. And fortunately, we don't have it as bad as the social media moderators.

I mean, they I think the mental health issues that really stem from seeing some of the really like violent content. And that's, I don't know what the solution is for that. That is such a hard thing to have to do. But with politics and even saying like very extreme left and right, at first it has that effect, right? But long-term, we see it wear off because it's like an inoculation. It's a fascinating thing. If you've ever seen somebody walk into a hotel lobby or airport or a relative's house

and Fox News or MSNBC is on, whichever one you don't like, they're like, turn it off. I can't even. It's literally a coping mechanism to shut that stuff off because it challenges your worldview. It challenges your very identity and who you are. This is why it's really hard to reach people who have their politics so closely tied with their identity. So even in the face of facts, nothing matters. And for our analysts, while they might have that initial reaction, what develops over

time is this understanding of like, oh, this is why other people think how they think. This is why the country is like it is. It was really eye opening for me. You know, when I first, you know, the first chart that had the cable news shows on it, I had to sit and watch all of the cable news shows on all of the channels. Like I thought I knew what was on the other channels. I did not. Right. And it was, it was alarming to me that I would watch something and be like, Oh, somebody out there, many people, thousands, tens of thousands,

maybe millions of people who watch this and think, yes, I agree. And that's so dry. So I think it helps with Thanksgiving conversations, right? Like your relative says something that's totally alarming and shocking to you. But like, if you've heard it before, it's not really alarming and shocking and you understand why people think how they think. Well, David, do you have any more questions before I have my final question? No, no, go for it, David. Okay. So I have to circle back to this podcast. And I just got to ask,

what is it that you like about this podcast? It's the thing that we like about all reliable information. So you named those top categories. Like there are a number of characteristics of news and informational content that make it highly reliable, that live in a highly reliable space. Obviously, original fact reporting, the work that journalists do, it's at that very apex. But your fact-dense analysis and even simple fact reporting is all really important. So what you do in this podcast,

I may characterize it myself, is although it's called advisory opinions, it's not really full of opinions. It's really dense with facts, right? So when you start out discussing a case, you lay out what the facts of the case are, the posture of the case. And then even when you talk about the law at issue, you're stating what the law is, and that's a new fact that you're bringing to your listeners. And then you'll make some predictions about how the case you think is likely to turn out, and predictions fall under analysis. And there's definitely a gradient of a spectrum of analysis to opinion. Folks often put it in a binary like, oh, it's facts, news reporting versus opinion.

But the gradient from analysis down to opinion really has to do with how closely tied to the facts the conclusion is or the prediction is. And you all have very closely to making predictions that are really closely tied to the facts as a function of being attorneys, right? What we do in terms of content analysis has a lot of new principles rooted in legal writing and legal analysis. So our analysts are looking for, well, how dense with facts is it? And advisory opinions is really dense with facts. Yes. Yes, indeed. All right. Well, this has been fascinating. I have been a devotee of

your chart for a long time and I had not seen, but I had not seen the podcast chart. And then when I saw the podcast chart, like it just, you know, of course, uh, you immediately look for your logo. Right. And there it was. And so I, I appreciate you. Hey, I appreciate you and your team taking time to evaluate what we do. And we'll be looking at our continued presence on the chart. No pressure. We're not going to lobby you. We want this to be a totally unbiased process. Of course. But really do appreciate what you do. And I want to let you know, it makes a difference. People do know, I mean, you know this, but people are noting this and talking about this. And it's just, it's fun for us to kind of get a peek behind the curtain, see how the process works.

So thank you so much for joining us. My pleasure. Thank you so much for having me on. Well, this has been another eclectic version of Advisory Opinions, the David and David Show. And just to let you know, we have about a couple of more weeks of David and David before Sarah is going to make her triumphant return in person at Georgetown University Law School with a live podcast. So she's going to

come in, not just any old return from maternity leave, but a triumphant live in-person return. So we're really looking forward to that. And thank you, as always, for listening.