Advisory Opinions - Due Processes vs. Defamation

Episode Date: October 31, 2023

The Connecticut Supreme Court weighed in on a suit stemming from a sexual assault hearing at Yale University that raised tensions between due process protections for accused students and victim blaming. Sarah and David analyze the political background of related cases. Plus: -States vs. Meta -David breaks down the law of armed conflict and the Gaza invasion -“Well-regulated” and its force and effect on the second amendment -It's oral argument season at SCOTUS Show Notes: -Khan v. Yale University 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 Sarah Isger, that's David French, and have we got a fun little episode for you. First, we'll talk about defamation law versus due process when it comes to university hearings. Then we'll talk briefly about that civil lawsuit that a bunch of states have brought against the social media companies involving their addictive properties when it comes to young people. Lastly, David has done some reporting for us on the law of armed conflict as

Israel sort of in that next wave of its invasion of Gaza, potentially. And look, we've got some more mailbag questions to answer. And the Supreme Court, David, back in session this week. Next episode, we'll have some fun oral arguments to talk about. One, trademark that disparages someone. Trump too small is getting argued this week. Oh, good times. I know, it's hard not to giggle. too small is getting argued this week. Oh, good times. I know, it's hard not to giggle.

But also, the two cases about whether government officials can block people from their social media accounts that are personal social media accounts, but they're posting about their jobs and official business. I think that'll be a really fun oral argument. One of the funner ones of the term, potentially. So that'll be next episode. David, let's just start with this Second Circuit case. It's kind of, it's interesting factually, but it's also really interesting legally to me. Yes. And thank you to David Ladd.

He did a nice write-up of this in Original Jurisdiction. So I'll give the factual part first, and then I'll do the legal history of the case. Both of which, again, like I said, I found really interesting. So factually, you've heard this story or versions of this story before. In short, a student at Yale Law School was accused of rape after a Halloween party in 2015. He was suspended from Yale and criminally prosecuted. In the criminal prosecution, the trial, I mean, two-week trial, jury deliberated only for three hours before acquitting him. But at that point, Yale then had their hearing. And in 2018, they expelled him from Yale Law School, I believe, actually. he sues her for defamation his case is dismissed at the district court because of quote absolute immunity someone who is testifying has absolute immunity you can't sue someone for defamation if

they're on the witness stand basically and the second circuit said well huh this actually would be controlled by connecticut law so they certified a bunch of questions to the Connecticut Supreme Court. That, by the way, I found really fun as well, that certification thing that we'll talk about a little more when we get into this. Connecticut Supreme Court says, thanks for the questions, dear Second Circuit. We will answer some of them for you. In doing so, they said that because the Yale hearing, a disciplinary hearing did not have a bunch of the markers of due process, the ability to cross-examine witness, the ability to have counsel present, um, a transcript that you could use to appeal the decision, for instance, that all of those things meant that she was not protected by absolute immunity because it was not a hearing in any true sense. She wasn't sworn in. So the Second Circuit, then taking those

answers from the Connecticut Supreme Court, says no absolute immunity sends the case back down for defamation to move forward. So in some ways, we're actually nowhere. We're back where we were when he first filed the defamation suit. Um, this time it won't be dismissed on those grounds. The second circuit also found that he had sufficiently pled malice. So David, this leaves people who have potentially been sexually assaulted on college campuses, um, with some interesting choices, or really the colleges with some interesting choices, because either you have to beef up your hearing process that it does have those markers of due process that would mean that someone testifying or giving their statement

would not be subject to a defamation case. But of course, a bunch of the universities haven't wanted to do that under the Obama administration's guidelines. But of course, a bunch of the universities haven't wanted to do that under the Obama administration's guidelines. They were strongly encouraged not to do that, for instance, not to allow women to be cross-examined during those disciplinary hearings. So either you can swear them in, allow counsel present, make appeals, you know, transcripts, allow for cross-examination, in which case you're not subject to cross-examination, but lots of people think that will discourage people from coming forward. Or you can continue with your current process that you have, which may encourage more women to come forward, but then they can be subject to defamation lawsuits from the accused. What an unbelievable mess, Sarah. And I think it was pretty obvious to anyone who really,

you know, who's long followed constitutional law, long understood due process requirements, that this push that really got energy during the Obama administration to sort of say, we're going to mandate, so this is Title IX, was mandating that schools have sexual assault procedures and procedures for adjudicating sexual assault. So you have to have a procedure. The government is telling you, you've got to adjudicate these kinds of claims. And then also discouraging traditional due process protections based on what was quite frankly at the time, even at the time, pretty apparent, some kind of junk social science that was making the conclusion that the overwhelming massive majority of claims about sexual assaults or sexual misconduct were true and that only

a very, very, very small fraction were not true, which was, again, we could go into some of those studies, but they were junky, terrible studies. And then sort of mandating all this adjudication, putting pressure, thumb on the scales against due process. And now we've come such full circle that it's placing women who come forward with complaints at a degree of legal risk they never would have faced. It's a giant mess, Sarah. So here you have, and just the way these things work, I sincerely doubt that it's going to work its way through the student population that, hey, if you accuse someone of sexual assault, you might face a defamation lawsuit.

If you go through the university mandated process, that is mind blowing. Although I think the ruling is correct because it's just absolutely correct. If you're talking about quasi-judicial immunity, you got to have at least a quasi-judicial process. And this one had no oath requirement, no cross-examination, no ability to call witnesses, no meaningful assistance of counsel, no adequate record for appeal. You can't call anything that contains or lacks those features judicial

in any way, shape, or form. So what a giant mess, Sarah. And the other thing that's a big mess about this is that when people were raising their hands in 2013, 2014, 2015, saying this is a giant due process problem, you were gang tackled. Oh, yeah.

You were for sexual assault suddenly. Oh, absolutely. It wasn't an argument on the merits at that time. It was victim blaming. It was, you don't understand, you know, trauma-informed processes, et cetera, et cetera. It was, who do you think you are to question this? As if we have figured out exactly how to deal with sexual assault. We've figured it all out after all these years of working, all of these misguided years with due process,

we've figured it all out. And no, no, it was a rotten idea from the beginning. And man, Sarah, No, it was a rotten idea from the beginning. And man, Sarah, when you track the amount of litigation that has been spawned by this wave, this lack of due process, it's really staggering. So there's three interesting law buckets here, if you will. The least interesting one is the federal law bucket, where, as I said, they dismissed on this absolute immunity grounds. And maybe people

listening didn't actually know that sort of a fun thing, that if you're a witness, you have absolute immunity in any sort of judicial proceeding. The prosecutors do, the judge does, but so do the witnesses. So that's neat. The second bucket that I think is worth mentioning is that executive branch guidance letter bucket, because we talk a lot about the administrative state and we talk a lot about Congress. So we're talking about statutes coming from Congress and regulations coming from the administrative state that go through notice and comment or executive orders that come from the president that maybe don't go through notice and comment. This is more of a guidance letter situation where you get something from the Department of Education that's like, here's how we understand the law. So in the Obama years,

they were discouraging a lot of those due process markers. The Trump years then sent out a new guidance saying they must have some of these due process markers including cross-examination for instance and now we're on the verge of the Biden administration's new guidance and yes we are three years in thank you for noticing um they haven't done it they haven't done it they've sat on it they said it's coming it's coming it's coming it hasn't come yet this is a fascinating pickle they're now in because of this second circuit case that is exactly the one we're describing, right? If you tell these schools that they cannot have these due process markers, you better tell the schools they need to inform these accusers

that they could be sued and spend years tied up with legal fees and litigation. Bankrupted at an early age. Right? So the event happened in 2015. The hearing happened in 2018. It is 2023. And this is now just going to start back at the district court level. So I find that interesting what the Biden administration will do from here, because they're now going to get whacked from either side. If they say there have to be due process markers, it's not going to be much different than 2015, David, in terms of where I think the left will go with that. But if they don't include those due process markers, I think you're going to have a lot of people saying you're actually being really unfair to these women by pretending that they can go through this without any problems.

All right. So then the third bucket legally that's interesting to me is this certification bucket, because we haven't talked about federal courts certifying questions to state Supreme Courts. We're not going to spend a ton of time on that today, but I think it's worth a few minutes to talk about how that works. So basically, if the federal courts have a question of state law, they literally can send a letter to the state Supreme Court. I'll read you here from the decision. On initial review, this court determined that both Kahn's challenges depend on whether Doe was correctly afforded absolute judicial immunity for her 2018 statements at the Yale hearing. The answer to that question turns on Connecticut law, which we found not to speak clearly on the matter. Accordingly, we certified

pertinent questions to the Connecticut Supreme Court. And then in a footnote, they list those questions. And I'll just give you a few examples. Under Connecticut law, can a proceeding before a non-government entity ever be deemed quasi-judicial for the purposes of affording absolute immunity to proceeding participants? The Connecticut Supreme Court declined to answer that question. Didn't have to. It didn't have to, that's right. If the answer to the first question is yes, what requirements must be satisfied for a non-government proceeding to be recognized as quasi-judicial? Specifically, A, must an entity apply controlling law and not simply its own rules to facts at issue in the proceeding? How, if at all, do the power factors enumerated in a decision we're talking

about around that due process stuff apply to the identification of a non-government entity as quasi-judicial? So that goes on. And so then, again, back to the opinion, accepting certification, the Connecticut Supreme Court has now responded to our queries. In a carefully reasoned and thorough opinion, the Connecticut Supreme Court unanimously ruled that the Yale hearing at issue is not a quasi judicial proceeding because it lacked a significant number of procedural safeguards. Oath requirement, cross-examination, ability to call witnesses, meaningful assistant of counsel, and adequate record for appeal. That in judicial proceedings ensure reliability and promote fundamental fairness. Thus, the court held that absolute quasi-judicial immunity does not shield Doe in this action. So for those

listening and wondering, how is that not an advisory opinion? It is. It is. But these are state courts. Yeah. Well, and also, I have actually been involved in a case, Sarah, where we got the district court to certify a question for the municipal bond issue they had received to build a new gym. And we had a conventional constitutional argument. But then in our research, we discovered there might have been a novel twist of Tennessee state law that would have deprived the plaintiffs of standing. twist of Tennessee state law that would have deprived the plaintiffs of standing. And we got that certified to the Supreme Court of Tennessee thinking we could just cut this whole thing off at the knees. And the Tennessee Supreme Court disagreed with us. And so it was like a six, eight month detour in the case, which thankfully we won on the conventional constitutional argument. But yeah, it's an interesting procedure.

And yeah, these state Supreme Courts are often kind of happy to clear it all up. But yeah, it is a fascinating procedure. Not so many people know that it even exists. Also worth noting, as this now goes back down to the district court, so the Connecticut Supreme Court said there was no absolute immunity. The Second Circuit says there's no absolute immunity because the Connecticut Supreme Court says there's no absolute immunity. However, the Connecticut Supreme Court also said that unlike absolute immunity, which provides a blanket protection for a speaker's false statement, a qualified privilege protects only those allegedly defamatory statements that are not made maliciously. In general, a qualified privilege is appropriate

when the legitimate public or private interest underlying the publication of the statements at issue outweighs the important reputational interests of the individual about whom the statements are made. So David, this is not the qualified immunity that we have been talking about on this podcast, but it is literally qualified immunity. Yes.

Now, interestingly, because the accused claimed that in fact she did make these accusations maliciously, there was that she targeted him for his political beliefs, basically. And we at that initial stage, the dismissal stage, you have to believe basically everything reasonable, in this case, in the accused pleadings. Because he pled maliciousness, the qualified immunity bar doesn't apply either. Because as you may remember from what I just read, a qualified privilege protects only those allegedly defamatory statements that are not made maliciously. So this case actually is going to move forward regardless. It doesn't mean he'll win. By any stretch of the imagination, it doesn't mean he'll win.

But it gets to that pain part where now this is really going to be a lot of litigation moving forward. Yeah, it really is. And it was so avoidable. It was so avoidable. Have basic due process protections. You are not disrespecting women by having basic due process protections. And ironically enough, you ended up leaving this woman exposed to potentially massive liability in your effort to protect her. in your effort to protect her. Look, we keep getting into these culture war situations in the last 10, 15 years where we're just saying, well, the Constitution feels inconvenient. It feels like really an impediment to what we need to get done in the culture war and the interests we need to protect. And so far, everyone who's really throwing the Constitution aside is not only, A, losing ultimately in court as they're doing this, but B, creating all kinds of negative boomerang effects based around their desire to, you know, that are actually quite counterproductive to their ultimate goals and aims. And so, guys, you know, I'm going to, I'm wanting to write a piece. I, you know, I've written and

said a lot about the laws of war. And I'm wanting to do a piece called the laws of culture war, which is the freaking constitution. And this is, this is a prime example. Well, David Latt, I think, summed up my feelings exactly on this in his original jurisdiction newsletter. It seems to me that if someone is going to level a serious charge, like sexual assault against a fellow student, a charge that can have grave consequences for a student's career and life, it's reasonable to require the accuser to submit to cross-examination at some point, at least if they want immunity from defamation claims. It sounds harsh, but the accusation's pretty harsh. And so that's why we have due

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Now, can I take a slight detour here to deal with a controversy that's erupting in non-academic contexts? major religious institutions that are taking steps to sort of have better processes for dealing with sexual misconduct and sexual assault claims, that they're saying in essence that, let's say you're a religious employer, that you shouldn't be able to fire anybody unless you have a full sort of trial, kind of a quasi-judicial proceeding. No, no. This is very different from when the federal government is requiring you to engage in discipline. That is, the government is requiring you to have a process that could result in sanctions, sanctions that are urged by the government. That's the classic

due process protections protect you from government or government mandated proceedings and postures. If you're a private company or if you're a religious institution and you have received information and complaints that somebody has been engaging in inappropriate conduct, say, or inappropriate contact with members of the youth group or people at church. You know, one of the, if you have the resources, one of the better ways of dealing with that, if you have the resources, is to commission an outside investigation, have an outside investigator come in and take a look at the claims. But it's not the same situation as a government-mandated disciplinary process. That is where it starts to pull in the Constitution. Now, you may decide as an employer that you want to have some sort of quasi-judicial proceeding

as a private employer on dispensing your own private disciplinary, you know, dispensing your private discipline. But that is in no way required by law. All right. Next up, David, big lawsuit filed since our last episode. In short, a zillion states have sued Meta. All of the states. So a bipartisan group of 33 state attorneys general launched a lawsuit last week against Meta, Facebook, and Instagram, making the argument that similar to tobacco companies and opioid manufacturers, they knew their product was addictive and harmful for younger users and misled the public about the dangers. It's 233 pages.

Eight additional states and the District of Columbia filed a similar lawsuit last week as well. Lots of legal stuff wrapped into here, including consumer fraud statutes. What do you think, David? I'm very skeptical of this case, Sarah. I think the comparison, if we can drill down on the comparison with tobacco, I think that that will help illuminate my skepticism. So we don't have really any question about scientific question about the actual physical effects of inhaling smoke, the actual physically addictive characteristics of nicotine. scrolling Snapchat or whatever has a comparable addictive quality is at best an open question, at absolute best. And the actual science, the science would say, no, it does not have the same,

even if you want to use the term addictive, it's not addictive in the same way. It's not, it doesn't create a physical dependency in the way that nicotine would create, say, a physical dependency. And there's an enormous amount of controversy over whether we're even using the word addiction properly here. Is this a habit? Is this a compulsion? Is a compulsion equal to an addiction? I mean, what are we talking about here? When you say addiction, if a teen watches five, six, seven hours of television a day, which teens used to do a heck of a lot before they scrolled Instagram for several hours a day,

is that an addiction? Are you addicted to Call of Duty? I mean, some parents would say. Or wives. Wives, right? Parents, wives. Was I addicted to World of Warcraft before life got so busy I couldn't keep raiding? There's a lot of things that people do for many hours a week or a day or whatever that they just enjoy that are not an addiction.

And the fact that they might really enjoy it, or this might be the way that they connect with friends, or this might be the foundation of their social circle, does not equal nicotine. So I think they've got a real problem on that comparison. Now, all of the details of consumer fraud, whether say Instagram said one thing and did another thing, that's a different deal. Yeah, worth just walking through. So the first one that you're talking about is on these consumer protection laws. And we're talking broadly here because there's a lot of states. It's a very long complaint. The first one is the use of the platform is harmful, unfair under consumer protection laws to younger users. That's the one you have to prove causality. That is certainly their most uphill fight here. Huge.

I've talked endlessly on this podcast about how I think states could potentially meet their strict scrutiny balancing test burden by arguing that these are addictive to young people and that's why they're able to have age restrictions for young people in their state to use TikTok, for instance. We've also talked about the national security argument for banning TikTok.

That feels like it's gotten much stronger in the last two weeks, but we'll set that aside for a moment. Hard to prove the causality on a consumer fraud statute because there's going to be a whole lot of case law on just how tight that causality has to be. Answer, really, really tight for good reason. The second is the deception,

which you were getting to, David. Easier to prove, certainly. You just have to, like, not all deceptive statements are consumer fraud. Yeah. There's puffery. Puffery is protected. Yeah. Best coffee in America. Yeah. Yeah. But then there's the Child Online Privacy Protection Act stuff, basically collecting data on younger users without parental consent, marketing its platform to children under the age of 13, yada, yada.

So there's a bunch of stuff mixed in here. I think we'll have to wait a little while to sort of tease out some of these as it moves forward. Yeah, I agree. I think the main event, though, is this claim that this is addictive and harmful. Absolutely. If you're talking about child privacy, well, then, you know, they can just sort of tweak the way in which they advertise or the way in which they collect data without it changing anything fundamental in the real world. The

reach goal here is to change something fundamental in the real world. The reach goal here is to change something fundamental in the real world by saying that this product is inherently dangerous or inherently problematic in some material ways when interacting with young minds. And that's where I'm just really not convinced by the evidence. And everyone I've heard talk about this. They do talk about how much time kids spend on these platforms. But again, you can go through platform after platform through year after year.

And kids, in the absence of parental supervision, will spend a lot of times binging things. They'll spend a lot of times gaming. I mean, they just do that. And so it requires parental intervention. So yeah, I'm very dubious, Sarah. I'd be interested to hear if listeners can come forward with some study that puts gaming in the nicotine category. I've not seen, or in social media, sorry, in the nicotine category. I've just not seen that.

Also, just on the national security front, for those who are curious what I was talking about, new studies shows that over 50% of Gen Z get their news primarily from TikTok. Also, it is becoming clear that TikTok, remember a Chinese state-owned slash run, basically, company, has every incentive to use that power and the algorithm that they have to promote discord, chaos, maybe even violence in the United States, et cetera. So they have

maximized the reach of a bunch of anti-Israeli bot farms on the algorithm. And who is paying for some of this? Don't worry. It's just Hamas supporting organizations paying to then boost the anti-Israeli bot farms that China is basically then allowing the algorithm to maximize its reach to American young people. If that's not a national security threat, David, I mean, my God, and here we are. It would be like we're in the middle of the Cold War with the Soviet Union, and the most popular channel is Pravda. Yep. Right? I mean, what are we even doing here?

Saturday morning cartoons brought to you by Lenin. Right. I mean, now, if an American company wanted to create Pravda US, right, and market themselves, they'd have the right to do that. But this is not an American company. This is a controlled, operated, under the authority of People's Republic of China social media network that is vacuuming, A, vacuuming in an enormous amount of private data about American citizens. You know, in the old days, they had to actually hack American government computers to get private data of Americans.

Now they just serve up a social media company and get all of our private data and then spit into our public domain, you know, Chinese engineered algorithmic propaganda. So, yeah. All right. Well, so I guess my overall, you know, Chinese engineered algorithmic propaganda. So, yeah. All right. Well, so I guess my overall,

I do think social media is addictive. I don't know that they'll be able to prove the legal causality. I wish at this moment that they were spending more time on TikTok than on Instagram. It's not that young people aren't addicted to both. Frankly, they are. But I think TikTok has the potential for much more pernicious effect on the future of our country.

This is the generation that we're going to have to have running our country. We're going to hand the keys to. And 50 percent of them are getting all of their news, majority of their news from China. Chinese Communist Party algorithms. I mean, the Soviets could have never conceived of that level of success back in the day. It's a real weakness in open, capitalist, democratic societies. And the Chinese know that. Yeah. Exploiting it. And we don't have to be idiots. Right. We can be open, but we don't have to be idiots.

Hard to say, David. Hard to say whether we have to be idiots. Well, have to be. We're inclined to be. We don't have to be. Okay. We do have a couple of good listener questions that I want to get to. But, you know, there's been a lot we had at the start of the Gaza War, the latest Gaza War. We had a couple of episodes where we talked about the laws of armed conflict at a pretty high level. I responded to some listener questions about it, but it was all pretty high level. And I imported some of my more concrete on the ground experience from my time in Iraq and what I'd known from talking to some Israeli JAG officer, Amos Kiara, who now is a professor of law at the University of Utah, he was the main JAG officer reviewing strikes in Gaza. So the guy knows of what he speaks. And so I thought it would be interesting to provide some general information as the invasion is unfolding, perhaps already started. as the invasion is unfolding, perhaps already started, but as the invasion is unfolding, because a lot of people have wondered,

how is it that Israel actually approves strikes? What are the processes? Because as we know, often your outcomes can be only as good as your processes. And you may say, well, we want to comply with the laws of war. We only want to strike military targets. But you've got to have a process for that. And so, Sarah, what I did is I called him and he walked through the process. And the process is interesting.

So he said substantively something that I've said many times, which is Israel has a very broad reading of the laws of war. In other words, reads them as very broadly applicable. And so it has a very narrow, it places rules of engagement in very narrow confines. In other words, a broad reading of the laws of war means a narrow room for maneuver of the actual military forces. They are tightly restricted. He said, but you have to look at things, two different kinds of operations, one that he called counterterror.

That was the phrase that he used. What we would have called in Iraq pre-planned. In other words, we are deliberately plotting and planning to attack this target. And he talked about the process of review. And the process of review required an intelligence committee to come forward. And the intelligence committee comes forward with its evidence in support of the strike. And this has got to be, this is vetted, this intelligence is vetted and evaluated by the JAG officer, looked at from several angles, including not just the quality of the intelligence that's provided, but also what efforts are being taken to minimize civilian casualties, etc. And this is very much like the United States. We wouldn't necessarily have an intelligence committee specifically, but we would have intelligence recommendations that were evaluated by a lawyer.

And then the lawyer would consult with the commander. And that's what happens in the IDF as well. And it's ultimately up the commander. And he said that a lot of what you're seeing underway, a lot of the bombing raids that you're seeing now are these pre-planned strikes. In other words, there's a large number of targets that the IDF has identified, because remember, it's placed Gaza under surveillance for a really long time. So it's got a lot of targets that it identifies, a lot of new targets that emerge. So there's this process

of intelligence committee, JAG review, and then command decision. Very similar to the American process. And then I asked him about, well, what happens when the actual ground assault is underway? And he used a distinction. He called one counter counterterrorism strikes. And this, he said, more was just more like, quote, unquote, war. The term we use in the U.S. military is TIC troops in contact. In other words, when troops are actually under fire, the decision making devolves to the on-scene commander. And in that circumstance, the law of war compliance is really truly based on the discipline of the soldiers who are immediately responding. What is their training? Because obviously you're not calling a JAG officer when you're under fire and saying, sir, we're receiving incoming from an apartment building. Can we return fire? And if so, with which weapons?

Like that, that's not a thing. Here you have to completely, you have to rely on training. And the training is disciplined, focused fire, appropriate weapons to deal with the threat and not greater. And that's a lot to put on young men under fire, young men and young women under fire. But that's what their training does for them. And I contrasted this with the way we responded when under fire in Iraq versus the way the Iraqi army, which was much less well-trained would respond. And we would respond with very focused fire straight

at the target. It could be very destructive, but it was very straight at the target. The Iraqi army, when it was under fire, would respond with what we called at the time the death blossom. In other words, they would just start firing in almost every direction indiscriminately, even before they could discern where the incoming rounds were coming from. They would just open up. That's what a poorly disciplined military does. And that causes lots of civilian casualties. A disciplined military engages the target and only the target. And so he was saying once the invasion gets started, then you just see an enormous reliance on the training of the soldiers who are on the ground because they're responding to incoming fire directly. They don't

need that JAG officer in the loop. But a lot of what we are seeing, this is something I hear words like indiscriminate used in connection with the Gaza airstrikes. Number one, if you have any military knowledge at all, you can watch the strikes happen and know they're not indiscriminate. You can see them happen and you realize they're precisely targeted. Doesn't mean that they're precisely targeted at the correct target

or that the target should have been chosen, but they're still precisely targeted. But the thing that was really standing out to me was the emphasis that many of these strikes, most of these strikes that you're seeing are pre-planned strikes that have had undertaken as part of them a legal review. And then the other thing, I asked him this because this was my experience. And actually, there's two-thirds of a whole law review laying around somewhere, Sarah, where I had a law review that I was going to write for the JAG school about the difference between IDF and American rules of engagement in

urban combat. This was years ago. And my case was that the IDF is much stricter in its rules than the U.S. military. And I asked him this and he said, without question, the IDF is historically more strict in its application of rules of engagement than the U.S. military. And I just don't even think that's a debatable point. Now, I do think that the IDF is loosening some of those rules of engagement currently,

but I still think they're within, I still think they're in all likelihood as strict or stricter than our, you know, they're even stricter than our rules of engagement in comparable circumstances. So that's the results of my conversation. I found myself wildly agreeing

with Hillary Clinton this weekend, which was an odd place to be in in some respects. But Hillary Clinton was making the point that anyone calling for a ceasefire has no clue what they're talking about. Because, I mean, first of all, there's the like broader point that like so terrorists attack you

and then you don't get to respond because that would be mean. Doesn't really make a lot of sense regardless, but Hillary Clinton's point was even if Israel, you know, Hamas released the hostages, let's say, and then Israel agreed to a ceasefire, all Hamas would do is plan for their next attack. Yes. That's it. So like Hamas agreeing to a ceasefire is worthless. There is no ceasefire from Hamas. So all you're doing is telling Israel to continue allowing terrorist attacks, continue allowing hostage taken, continue allowing torture, all of the horrible things that we won't continue talking about. But I mean, you got to be impressed with Clinton, Biden, like they are speaking truth to their own base. Yeah. You know, everyone was waiting for it.

You know, I've heard a lot of people on the right say, where is Joe Biden's sister soldier moment? Right. Where he sort of where Bill Clinton famously took on sister soldier who had, I guess, sung or said something awful about police. This is a Sister Soulja moment, like on the world stage. Yeah, it shouldn't be, but it is. It shouldn't be, but it is. And there's indication it's hurting Biden for the moment. I mean, his own approval rating with Democrats is down 11 points right now. I wrote this weekend, though, that, and this is something, gosh,

if you'd gone to me, Romney-era me, who, quite frankly, Sarah, after the vice presidential debate with Paul Ryan, I could not stand Joe Biden. After watching that debate with Paul Ryan, that fast forward 11 years, I would be defending Joe Biden from critics on the far right and the far left. I just, I would not,

that would not have computed. But as I said in a piece that I wrote, progressives calling for a ceasefire in Gaza threatened to hand Hamas the greatest victory of its existence. If Hamas can wound Israel so deeply and yet live to fight again, it will have accomplished what ISIS could not, commit acts of the most brutal terror, and then survive as an

intact organization against a military that possesses the power to crush it outright. And Dennis Ross, who's the former U.S. envoy to the Middle East, diplomatic envoy, said any outcome that leaves Hamas in control in Gaza, quote, will doom not just Gaza, but also much of the rest of the Middle East. And I think this is just plainly true because if you let Hamas stay on its feet, even battered, even bruised, even bloody, because remember, they don't care about the lives of any of those terrorists who crossed the border.

They could all die. And it doesn't matter to Hamas leadership. All that matters to Hamas leadership is- Yeah. Hamas leadership, the billionaires who are living in Qatar. Oh, yeah, exactly. They're not even there. And there's plenty of fuel. There's plenty of food, everything. It's just being used for Hamas. Right. To attack Israel. It's just not being given to their people. Yeah, exactly. And how the anger of the world is primarily at Israel for the plight of civilians in Gaza is another example of the double standards applied to Israel. So terrorists attack when they had no right to attack. They embed in civilians when they have no right to embed in civilians. Israel responds as it has a right to do under international law, and people are angry at Israel. This is one of these classic examples. If you want to define anti-Semitism, anti-Semitism is treating the world's only Jewish state differently and worse than every other state in the world.

All right. We have a couple mailbag questions all about the same topic, David, and I'm going to read you the topic. OK. Because I think you'll be able to guess the question. Yeah. A well-regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed. Now, do you want to guess the question? bear arms shall not be infringed. Now, do you want to guess the question? Is the question something along the lines of why do we not talk about the well-regulated militia aspect of the Second Amendment when we spend so much time on the text of the other part that the right of the people to

keep and bear arms shall not be infringed? Ding, ding, ding. And look, there's actually a pretty good answer to this, which is we've talked about Heller. Heller was decided in 2008 at this point. And so now we're sort of, the courts are building on Heller. So when we talk about that, we don't start from the very beginning anymore. We sort of assume Heller isn't getting overturned. I'll just read the paragraph from Justice Scalia's majority opinion in Heller. And then David, I want all of your takes on it. Yeah. Logic demands that there be a link between the stated purpose and the command. The second amendment would be nonsensical if it read a well-regulated militia being necessary to the security of a free state. The right of

the people to petition for redress of grievances shall not be infringed, that requirement of logical connection may cause a prefatory clause to resolve an ambiguity in the operative clause. For example, the separation of church and state being an important objective, the teachings of canons shall have no place in our jurisprudence. The preface makes clear that the operative clause refers not to canons of interpretation, but to clergymen. But apart from that clarifying function, a prefatory clause does not limit or expand the scope of the operative clause. It is nothing unusual in acts for the enacting part to go beyond the preamble. The remedy often extends beyond the particular act or mischief which first suggested the necessity of the law. Therefore, and this is now how the rest of the opinion really goes,

we will begin with our textual analysis of the operative clause, and we will return to the prefatory clause to ensure that our reading of the operative clause is consistent with the announced purpose. So basically the way Heller goes is they start with the right of the people to keep and bear arms shall not be infringed. They do a

textual analysis of that. And then Justice Scalia goes back and says, given that textual analysis, what does a well-regulated militia being necessary to the security of a free state tell us about any ambiguity in those terms, expanding or limiting, whatever else? So that's how the Heller opinion went down. David, thoughts, feelings? Yeah. I think that, I mean, Scalia, as always, is very clear in his explanations. And, you know, let's just sort of talk about the alternative reading of that, that a lot of folks urge to claim that there is no individual right. So their essential argument would be that the really important part of the entire

amendment is the opening, is that precatory, that the, oh gosh, what's the... Prefatory clause. Prefatory clause, right. A well-regulated militia being necessary to the security of a free state. Right. So a well-regulated militia is a state entity. And so you could have, I could imagine an amendment that said well-regulated militia being necessary to a free state. Then an operative clause that says, so every state shall maintain a militia. And then an operative clause that says, so every state shall maintain a militia. That would be one way to make that directly linked to the militia clause.

But that's not what it says. necessary to the security, then one way in which that purpose is fulfilled is by preserving the ability of the people to keep and bear arms. That is a way, a way, not the way, because there's other ways you could constitutionalize the well-regulated militia, but a way that that goal is accomplished is by preserving the right of the people to keep and bear arms. Now, somebody might say, well, wait a minute. Then if the state says, I don't want to have a well-regulated militia, we don't want to have a militia at all, does that remove any of the right or the justification for the people to keep and bear arms? But once you have the clause creating the right, you can't read that clause out. That is one reason for the right, but the right still exists. And so that's why a lot of the discussion of this kind of skips beyond because the operative clause does not then necessarily relate exclusively to the prefatory

clause, but it does flow from the prefatory clause. So, but I, you know, I also think that when you're talking about the whole concept of quote, well-regulated, this is where, when you're talking about Scalia and Heller, and this is a point that we've hit several times, a point that we hit in Heller is Scalia says in Heller specifically, look, we're not obliterating all restrictions and all regulations on the ability of people to keep and bear arms. in fact explicitly saying that, you know, for example, that the key language about felons and the mentally ill, et cetera, or lawful guns and a lawful use, you know, in ordinary use for a lawful purpose, that harkens back to regulation. That harkens back to it would not necessarily be well regulated if you could have violent criminals possessing firearms or the

violently mentally disabled or mentally ill possessing firearms. So it's not that the well-regulated statement has no force or effect. It's just that it cannot nullify the literal words of the operative clause. All right. I think that's a pretty good explanation. I tried. I tried uh we have some oral arguments to go listen to david let's get busy yes let's do it let's do my favorite part of the season so next episode it'll be lots of oral arguments and um and you know we'll keep monitoring that mailbag too Don't worry.