Advisory Opinions - First Amendment Bonanza

Episode Date: July 20, 2021

It’s a First Amendment-themed pod today. First, David and Sarah discuss the city of Anaheim’s decision to cancel an America First rally with Matt Gaetz and Marjorie Taylor Greene, and how it’s a textbook example of a free speech violation. They then dive into a ruling from a very divided 9th Circuit about a high school coach who was fired for praying publicly with students after football games. Next, they chat about an 8th Circuit case involving University of Iowa and its selective enforcement of free association policies for Christian groups. Finally, David and Sarah talk about the recent Texas district court ruling striking down DACA. Show Notes: -Anaheim cancels America First rally -9th Circuit prayer case -8th Circuit University of Iowa case -DACA ruling from district court Learn more about your ad choices. Visit megaphone.fm/adchoices

Welcome to the Advisory Opinions Podcast. This is David French and Sarah Isger. And we've got a pretty darn good podcast today. Some mainly First Amendment podcast and a case out of the Ninth Circuit involving a high school football coach that is a, is there a better word to describe the Ninth Circuit's various competing opinions than lit, Sarah? I mean, you're younger than me. Is there a better, more up-to-date kind of vernacular? I think lit is my generation and I am not savvy enough to know the lit equivalent for the younger generation.

Okay, well, lit's going to have to do because this opinion is something else. It's got a lot going on. We've got a lot going on, but we're going to start with Matt Gaetz and a name we have not mentioned much on this podcast, intentionally Marjorie Taylor Greene. We're going to start with a First Amendment issue in the city of Anaheim involving their America First rallies. Then we're going to move on to this wild case in the Ninth Circuit. We're going to talk about an Eighth Circuit qualified immunity case. Sounds interesting, maybe? Yes, it is. And then we're

going to wind up with DACA. Not going to spend a lot of time on DACA because there's not a huge amount to talk about. But let's start with the city of Anaheim, Sarah, Matt Gaetz, Marjorie Taylor Greene, and a kind of, it seems to me that some city officials need some education in the First Amendment. So, David, if you and I were teaching a First Amendment course on government action, this would actually not be our final exam. I want to read you two statements. I want to read you the statement before and the statement after and see if you can issue spot the problem. You don't know on this pod we talk about like

where someone's like, hey, do you want to do crime? Yeah, let's do crime. This is the equivalent in the First Amendment context. This is, hey, do you want to violate the First Amendment? Yeah, yeah. Let's put out a statement definitely saying we're going to violate the First Amendment. All right. Here Let's put out a statement definitely saying we're going to violate the First Amendment. All right. Here's the first statement. We learned of the planned relocation of this event, the America First Rally, to a private venue in our city late Friday.

It is not a decision by or supported by the city of Anaheim. As a city, we respect free speech. And that's how you know there's going to be a problem. We respect free speech, and that's how you know there's going to be a problem, but also have a duty to call out speech that does not reflect our city and its values. We are looking into this matter this morning. Okay, actually, so far so good. You are welcome to support free speech and call out speech that you don't like. That paragraph all by itself is exactly what you want to do when someone's coming to town that you as a city government don't like. Think Skokie, Illinois, right?

You are welcome as the city of Skokie to say we support free speech, but boy, do we hate Nazis. That's cool. In fact, you probably should say that. You probably should. Yeah, yeah. That's that's smart comms work there. But it's that it's that last sentence, David. We are looking into this matter this morning. So fast forward, but a little bit later. A planned America First rally at a private venue in our city is canceled. The city of Anaheim shared public safety concerns with the operator.

Oh, really? And those concerns are shared by the operator. As a city, we respect free speech. But also have a duty to call out speech that does not reflect our city and its values. All right, let's break this down in a couple different ways. One, from a comms perspective, that's really repetitive with what you already said. It's not particularly well written. I just want to go back to the city shared its concerns with the operator, and those concerns are shared by the operator.

I think we could have reworked that. Also, just as a general matter, again, like we've all been around long enough, like I'm not a racist, but like anytime you're saying a definitive statement and then, but you undermine everything you just said before that as any really, frankly, person in a relationship knows. But let's be real, men, men know, like, don't don't say the nice thing and then say, but so we respect free speech. But is how, you know, they don't respect free speech. All right.

So now legally, David, well, why don't you give us the top level First Amendment? Because I've got like a second or third level like, ooh. Yeah. Okay. So there's a couple of issues here. One is, and I'll give the caveat, I'll give a caveat in a minute, but what this is broadcasting are a couple of things. One is a heckler's veto. In other words, a heckler's veto is a concept where a government entity allows third parties, by failing to maintain order allows third parties to shut down your speech through actual violence or threats of violence. So, you know, if a government is saying, nice little rally you've got there, too bad we can't protect it, then you're signaling there might be a heckler's veto

issue. There is an obligation of the state to protect public order and to fail to protect public order, to signal that you cannot protect public order, is a way in which the state actually can unconstitutionally suppress speech. So that's one. Number two is, what if it's a heckler's veto salad sprinkled on top with some viewpoint discriminatory croutons that are admitted to in the statement. They really, really don't like this speech. Okay, that's totally fine for them to say that they don't like the speech. But the fact that they didn't like the speech means that they have chosen to lean on a private entity to try to coerce or force a private entity to cancel the event, then you've gone a bridge too far. Now, is there any hope that the city of Anaheim here didn't do something

unconstitutional? We don't know about all of what communications they may have had with the private entity. We don't know the extent to which they did or did not lean. But if I'm the lawyer for the city of Anaheim, I'm not liking this statement at all because I'm walking into a courtroom. And as you said, Sarah, we talk a lot about these things where we say, hey, look, I'm criming now. This is sort of like saying, hey, judge, it looks like we're violating civil liberties here, but we're not fully admitting it. We're just mostly admitting it. And that's what the city statement is. That's the top line.

So here's what was sort of like, haha, hilarious to me. Remember when we talked about Donald Trump's lawsuit against Facebook? He filed several of them, but we've been sort of using a shorthand of Facebook. And their theory is government coercion, whereby you turn a private actor into a state actor by basically doing the government forcing a private actor to do what the government couldn't do legally does not transform it into then legal action just because you're like puppeting a private entity. And I was like, oh, hey, yeah, that's what this is. It's actually remarkable. And the thing about it is, how many times does this lesson have to be learned?

Don't make free speech martyrs out of bad people. Don't make free speech martyrs out of bad people. You know what you do? You give them a burst, a burst of additional publicity that they don't merit, a burst of additional publicity and not publicity that is the negative kind that is, hey, Marjorie Taylor Greene is a ridiculous conspiracy theorist, but Marjorie Taylor Greene just had her First Amendment rights violated, and now Marjorie Taylor Greene is going to be defending the First Amendment. I mean, this is so basic.

And really, really, guys, don't make advisory opinions defend these people. Seriously. It is personally offensive to me, city of Anaheim, that you're making us defend Pat Gates and Marjorie Taylor Greene's First Amendment rights. This is a personal affront. It is, yeah, you know, but this lesson keeps being learned and relearned and relearned and relearned. And then I just love, you know, I tweeted out something about this last night saying, you know, this is basically like a First Amendment issue spotter exam in a very easy course. And the responses that said, well, nope, sorry, hate speech not protected.

Sarah, lots more people need to be listening to this podcast. Well, that brings us very much to then the Ninth Circuit. Wow. Okay. All right. This case, this case is something else, y'all. It's been around for a while, a pretty good while, actually. And it involves a high school football coach, okay? And the basic, well, it's a somewhat complicated factual pattern, but this is a case with a high school football coach named Joseph Kennedy in the Bremerton School District. And this, he's a high school football coach at a public school, a public high school. So, in other words, the Constitution is in play here on the school's actions against the coach because it is a public school. And so, the basic facts

here, complicated to make them as simple as we can, is that for a long time the coach had prayed after games at the 50-yard line. He had sometimes engaged in short inspirational speeches after games at the 50-yard line in which he injected religious elements into the speeches. Coaches would gather around. Players would gather around. The school began to be concerned about this, that he was engaging in sort of religious exhortations and religious messages as a public school football coach after games with the kids around him. And they started to warn him against doing this.

The coach was unhappy with these warnings. And so he just began to openly defy them. As the situation escalated, it became public. And the coach was very publicly emphatic that he was not going to be told not to pray. And so, as the situation escalated, as these things often do, it became a public, what's the phrase, cause celeb? Is that how you say it? It became a public controversy. And as so often happens, then all of a sudden, it's a flashpoint. Not only is it a flashpoint in the sense of it's a public controversy, also school officials and those who are trying to restrict the coaches' activities start to get

school officials and those who are trying to restrict the coaches' activities start to get threats. And can I just do a quick divergence here, Sarah? Of course. Few things, few things in life make me more angry than when a Christian is involved in a legal dispute and other Christians start threatening, start threatening the Americans on the other side of this dispute. That infuriates me. It infuriates me more than having to defend Marjorie Taylor Greene's First Amendment rights, and that infuriates me a lot. But anyway, so threats start to come. He defiantly prays on the 50-yard line, and a big swarm of players and the public come onto the field and pray with him. Okay, so he loses his job.

He loses his job, and he files suit. And the case goes, he tries to get a preliminary injunction to get him his job back and to allow him to pray at the 50-yard line. And his request is very simple. His request is not to lead players in prayer or lead them in a religiously-themed speech or to deliver a religiously-themed inspirational speech after the game. His request is to simply pray by himself on the field after the game. Now, he apparently for a while offered to pray by himself on the field after everyone had left, but then retracted that offer. He says he wants to pray by himself on the field after a game. That is his formal legal request, to get his job back and to pray

by himself. So he loses the request for the preliminary injunction. It goes up to the Supreme Court. The Supreme Court denies cert. Now, he only lost an injunction request. He did not lose the case. But the Supreme Court denies cert. And four justices, Alito, Thomas, Gorsuch, and Kavanaugh. I'm blanking. But three justices. No, no, no, no, no, no. Back up, back up. It's all, it's all four. You just forgot Kavanaugh. Oh, okay. Alito, Thomas, Gorsuch, Kavanaugh. Okay. Four justices basically say the Ninth Circuit's opinion below, there needs to be a lot more factual development because the Ninth Circuit seems to be screwing up the Garcetti analysis. So Garcetti v. Sabalis is a case that talks about the limits of public employee speech when they're engaging and speaking in their official capacity as part of their job. And these four justices were saying that the Ninth Circuit seems to be over-reading the reach of Garcetti. In other words, that it is not the case that a person

is speaking in their official job capacity when they say anything while they're on the clock. And so they really want to go back and dive into the facts of the case. So this case goes back to the Ninth Circuit. Ninth Circuit dives into the facts. The trial judge dives into the facts. Ninth Circuit hears on an appeal. Coach Kennedy loses. And one of the judges, Suisponte, on his own, asks for the Ninth Circuit to rehear this en banc. on his own, asks for the Ninth Circuit to rehear this en banc. So the Ninth Circuit rejects the request to rehear it en banc, and they write 92 pages. Now, I'm just going to

read this real quick, and then Sarah, hand it over to you to start the analysis. Okay, so there's an order. There's a concurrence by Judge Mylon Smith, a concurrence by Judge Kristen, a statement by Judge O'Scanlan, statement by Judges O'Scanlan and B, statement by Judge O'Scanlan, statement by Judge B, dissent by Judge Okuda, dissent by Judge Nelson, dissent by Judge Collins. This thing is something else. But the bottom line is that the coach has still lost. He has lost. The court held that the school had a powerful interest in prohibiting an establishment clause violation by preventing him from praying in the 50-yard line after the game. And to make a long story short,

one of the reasons why they held that there would be a likely establishment clause violation if he prayed was that his prayers were not him by himself, but they were very public. There was evidence that an atheist student had participated in the prayer because he didn't want to lose playing time. He had the fear that he would lose playing time. That while the request of the coach might be to pray by himself at the 50-yard line, the actual reality of the situation was he was praying very publicly, and he was praying audibly, and he was leading students in prayer at the 50-yard line after games. And this was public, employee-led prayer in a K-12 circumstance, unconstitutional according to a host of school prayer cases.

Is that a good enough summary? Yeah, yeah. Just as a Ninth Circuit clerk by marriage, just shout out to Judge Beah. Oh, I said B, didn't I? Yeah, yeah. So I just want to make sure. I'm sorry, Judge Bea. B-E-A.

Yeah, yeah. All right. I know that. I know, Sarah. I'm sorry. I know. Here's where to start, I think. Four is the magic number at the Supreme Court.

There were four votes agreeing that they didn't want to take this case on interlocutory appeal. They wanted the facts, you know, spelled out more, as you said. But what they said was, but if the facts are like this, then the Ninth Circuit has a real problem. And by the way, let me start with, they said the school gave two reasons why they didn't like this, why he was fired. First, that the petitioner, in preying on the field after the game, neglected his responsibility to supervise what his players were doing at that time. And the four justices are like, look, if that's the issue, if he's supposed to be doing something as a teacher at that point, then yeah, you fire him. But if he's allowed to go make, you know,

call home, make dinner reservations, get his stuff, you know, packed in his bag, then that's not it. And that's why they wanted the factual stuff from the trial. All right. Well, that's not it. He was allowed to go do whatever he wanted after the game. There was no negligence of duty. So the second reason they gave, and this is I'm still reading the Supreme Court version, that petitioner's conduct would lead a reasonable observer to think that the district was endorsing

religion because he had prayed while, quote, on the field, under the game lights, in BHS logoed attire in front of an audience of event attendees. And their point is, if that's what the facts show, then the Ninth Circuit has this all wrong. Garcetti doesn't apply. And, you know, the Santa Fe public school case, supply. And, you know, the Santa Fe public school case, which is really close to where I went to school, was a prayer at the football game itself. So this is the only thing that makes this different is it's a prayer when the whistle blows. And what the four justices are saying is, yeah, yeah, the teacher is allowed to pray as he's leaving the football game. And that can be on the 50 yard line, whatever. So certainly the four justices thought they were kicking this back to the Ninth Circuit for a really easy field goal, let's say, because the district court was inevitably

going to find that it was not a negligence of duty issue, that he was praying after the game, and that they're saying Garcetti doesn't apply if that's the case. The end. But what you find at the trial is that it's messier than what the four justices thought it would be. And when we look forward to whether they're going to take this case, it would be really easy to say, look, there's four votes to grant cert. David, I don't think they're going to grant cert on this. Yes, they have four votes if it had been a really easy factual case to clean up Garcetti and to cabin Santa Fe. But at least the facts, I mean, honestly, when you read the Ninth Circuit, I mean, the 27 statements where every judge is like, so anyway, let me tell you something. It's like they're talking about different cases, honestly. The one opinion that slayed me, and you and I were quoting it back and forth in Slack,

is the one where there's a side-by-side of the quotes from the dissent at the panel by Jojo Scanlon, and it goes, sorry, this is funny. I've never seen something like this. No, never. It's a chart, and it the on the unmoored claim and that's on the left and it has quotes. And then on the right, what the record actually shows it's bad. Um, but also really, really helpful if you're interested in this case, because it just pulls out everything from the record and goes line by line.

because it just pulls out everything from the record and goes line by line. I'm not going to do that here except to say that, David, as you and I have talked about my high school experience, this is like exactly it. And I was like, I think it's really easy to say, yeah, yeah, this is a great, this is a perfect case to distinguish Garcetti, that sort of on-duty versus off-duty, even when you're still on the clock, technically, First Amendment rights. And, you know, the idea, for instance, in the dissent here, in the Ninth Circuit, where they said, you know, according to the majority, when a teacher shows up from the moment they show up to the moment they leave, they have no first amendment rights or any rights ever

because they are on the clock the whole time. Um, okay, well, huh? That's interesting. But again, in practice, what this means is exactly what these facts are, which are not sympathetic to the coach. What it shows is a guy who wanted this fight. They wouldn't give him the fight. Then he kept trying to get the fight. And then when he didn't get the fight, he made it a big publicity deal. And the result was exactly what undermines his case, which is this idea that basically all the

community was then supporting him. And therefore all of his students on the football team were de facto forced to join him at the middle of the field after the game, because it's not that they went to the parking lot, the whistle blows, they move to the middle of the field and they have this giant prayer. And again, my experience, this was orchestra instead of football. I get it. I get it. You can laugh at home. I know you are. I can hear you. Nobody's laughing, Sarah. Nobody's laughing. But the difference is between an opt out and an opt in system. This is the epitome of an opt out. You're still on the field. You're still in your uniform. No time has passed. There's an enormous amount of public pressure.

And by the way, your coach is still on work hours. He is still your coach. This isn't like you ran into him at Arby's on a Saturday night. An opt-in system would be after everyone's changed, the game is definitely over, parents have, you know, everyone's sort of leaving, that then, you know, by the coach's car or something, some players can join him if they want and have a prayer as they're walking to their parents' car. That's an opt-in system. That's an opt in system. What I mean, this is so clearly to me something different, an opt out system, which I think is a big problem. And that's what Santa Fe was based on. And but it is worth mentioning. Remember how this case came up. This is a First Amendment case brought by the teacher, not an establishment case like Santa Fe brought by a student who's complaining. So you do have the school district a little bit squeezed in the middle where what the Ninth Circuit has said here is that they had no choice but to fire him because they were

violating the establishment clause. But then you have this ceiling of his First Amendment rights. And I think this is a great case for the tour intention. I would like the Supreme Court to take it. But with such an unsympathetic plaintiff, the coach, I think they may take a pass. You know, it's really I mean, this case is really interesting. And let me let me try to break it down a little more. So what the four justices of the court were essentially saying is it is not the rule from Garcetti that the moment you start being on the clock, all of your speech belong to us, to the state. Yes. That is not the case. So, a teacher can pray over their meal, for example, without that being, you know, state prayer. Or, and maybe in different fact settings of this case, if the coach truly was, like, after

the final whistle and he kind of wanders off by himself and he offers a silent prayer, I think that's sort of the facts that they were thinking of. But what became very clear to me, honestly, Sarah, and this is not a hot take, I don't think I'm reading between the lines here. I don't think some of the judges in the Ninth Circuit like Coach Kennedy at all. No. I think that they— Read that last paragraph. That last paragraph is a doozy, and I don't like it actually, but it goes to your point that this got kind of personal.

Yeah, this is inappropriate, okay? This is inappropriate, but in the last paragraph of the primary statement affirming the denial of en banc, it reads this. I personally, this is the judge talking, find it more than a little ironic that Kennedy's everybody watch me pray staged public prayers that spawned this multi-litigation effort, multi-year litigation effort, so clearly flout the instructions found in the Sermon on the Mount on the appropriate way to pray. What? Regardless of what you think of the coach, that's over the line, Sarah. That's over the line.

We don't need the judge's personal opinion about how to pray, but what absolutely comes through every pore of this opinion is what the majority is wanting to communicate is this case is not what the Supreme Court thought it was. They are trying to communicate that as loudly and clearly as possible and that what they're trying to say is this is a case, despite his formal legal request to pray by himself at the 50-yard line silently, in reality, he's wanting to pray out loud, publicly surrounded by his team and the public. And what O'Scanlan is trying to do in his statement is say, whoa, whoa, whoa, no, let's just focus on the facts that are relevant to his specific request, which is to pray by himself silently.

And so here's the interesting question, Sarah, because I think if he's praying by himself silently on the 50-yard line, he wins. I think he wins. I think if he goes and he prays by himself silently on the 50 yard line after how the four justices of the Supreme Court framed this, I think he wins the case. Now, let's posit facts where he is truly intending to pray by himself on the 50 yard line. He is truly intending to pray by himself on the 50-yard line. He gets supporters who catch wind of it. And against his will, they join him. Against his will, they join him.

Does that mean it's a different case? Because I don't think those are the facts here. I think the facts are he really wanted a whole big pile of people to join him in the middle of the field. And I think that's what cost him this case. It was a huge public cause. And it's very clear that that set off these judges. It's very clear that that did. I'm very interested in your thoughts.

So. All right. I'm very interested in your thoughts so alright so I think your point about Garcetti that praying before lunch I think that's the perfect example that the justices want to make clear of course you can pray before you eat your food that's not

what Garcetti was about and you want to talk about that floor and ceiling between establishment clause and first amendment like that's in the heartland of a public employee's First Amendment right that does not come anywhere close to an Establishment Clause violation. I think that preying silently on the 50-yard line

factually could be within that as well. I think, though, that there's a way to technically do everything you're saying, David, and it's still not be that. And that is something like it becomes a big show where, you know, you're silently praying while crossing yourself. I don't know, like genuflecting or something. Here's the problem for me. It's on the 50 yard line. The point of that is to have people see it. It was always the point of it. have people see it. It was always the point of it. It is certainly not, you know, mandated by his religion in any way that he pray on the 50 yard line. This isn't like right outside the player's locker room or on his coach's bench or something. Why does he want to pray at the 50 yard line? Because he wants people to see it and he wants people to join him. That is where, to me, you start inching down towards the floor, towards the establishment clause problem.

And you're right. There's nothing magical about the 50-yard line. He could, in theory, prey on the 50-yard line at midnight that night and it not have that effect whatsoever. But the effect matters. You can't just say like, it's no big deal. Well, no, it's not like the 50 yard line isn't what's making it magical, but he is imputing purpose into the 50 yard line. And I just very much feel like that kid who has to show up there or the kid who refused to and was punished. I think I mentioned about my history teacher who, if you went to Tuesday night fellowship at his house the night before, you didn't have to do your homework that was due on Wednesday.

And so I would get it. I would then refuse to do my homework and obviously refuse to go to Tuesday night fellowship and get a zero on my homework every Wednesday. And then I would throw it on the floor and a protest. And in fairness, he didn't do anything about that, which doesn't actually make it okay. But, um, like this is the type of community that we're, that we're actually talking about the op, you know, where we pray at the orchestra concert after you're already in your seat, but before the concert has started. And if you don't want to pray, you're welcome to leave your seat with your instrument. What? Or you don't have to go to Tuesday night fellowship,

but like, we know that the students who do were up late and they don't have time to do their homework. So like, they don't have to, um, you know, that was on his free time. That wasn't even during school hours. Uh, so I just, did you ever consider becoming a litigant? Um, so I actually did complain about the orchestra situation and, uh, the, uh, it was changed during my time. Thanks to a letter from the Anti-Defamation League, actually, though I am not the one who reached out to them. I was in support of it. Um, no, I did not consider that for the history teacher because I, again, first of all, it

wouldn't have occurred to me, but also I don't think I'm not in favor of suing over every slight. Like I'm a big kid. I'm fine. I was not being bullied into going to Tuesday night fellowship. So it was not establishing anything for me. Right. Right. So this is interesting. So let me, let me just lay my cards on the table. I dislike Garcetti. I dislike Garcetti. Okay. I think it's overly restrictive of speech, of public employee speech.

So I have, I walk into this with a distaste for Garcetti. So I do think there should be more room given. And I do think that a lot of circuits are extending Garcetti too far. And I think that was some of the text, not just subtext, but pretty clear text of the four justices. So let me ask you this, Sarah. Okay, so you would agree that if he was on the 50-yard line after everyone had gone home. No problem. After the game, he said— I'm not even sure that's a Garcetti problem, by the way. Because at some point, he's off the clock.

Right. Exactly. The only Garcetti argument would be if the general public didn't have access to that field. Sure. Right. But that's an easy case. So that's an easy case. Yeah. All right.

So I think, my view is, he should be able to pray by himself on the 50-yard line silently after the game. That's my view. I think Garcetti should not be read to include that speech. Now, what if the facts were this? He says, guys, I'm praying on the 50-yard line. It's got to be by myself. Nobody join me. Does that make it better from your standpoint? Because I think the worst fact that he has, in addition to the mob scene at the height of the controversy, which there is a picture, this is all very unusual, y'all. There's a picture of

the actual prayer scene in the court's opinion. So this is all very unusual. So there's a mob scene. I mean, there's literally television cameras, which are, you know, taking account of which students are there. Yeah. Yeah. So it's a big pile of students and everybody, and there's a picture of it. Okay, so, you know, so that, so obviously that, that's one of the facts that the Ninth Circuit really keyed in on. But the other one obviously was this atheist student who said that he prayed because he didn't want to lose playing time. That's a bad fact. That is a bad fact. And so if you say, if you say, no, nobody join me, nobody join me, does that put it into, does that take it out of Garcetti, take it out of establishment clause concern for you, Sarah?

As long as it's genuine, it matters if his intentions are wink, wink, nobody join me, and then all the students do join, because that's what goes to the, would a reasonable person watching this think that the school itself was establishing this as its religion? And that to me is the whole question, and that's why it's the opt out versus

opt in situation. So I think that you're exactly right, though. I don't think the court will take this because the facts are messy. And this guy screwed up his case so badly by wanting to be a martyr. Well, congrats. You lost your job. and if they do take the case, then I think it will actually be very narrow in finding that Garcetti is limited in the way that you and I have talked about and remanding it back to apply new Garcetti to these facts, at which point he will lose again. Yeah, I tell you, I, because, you know, I am full, as I said, I'm fully of the belief that playing by yourself on the 50-yard line, the actual specific request in the injunction, I think is appropriate. I think that's appropriate. But there's this interesting thing, and then, and we can move on. But there's this interesting thing, and we can

move on, but there's this interesting aspect of some of these First Amendment cases where there are two things happening at once. One, there is one track that is the litigation track. That is where you're walking into court and you're making legal arguments, and it is, you know, this, court and you're making legal arguments and it is, you know, this, you know, in the federal, the majesty of the federal and hushed awe of the federal courtroom, there's the litigation track. And then you have the public relations track. And in the public relations track, often things can spiral out of control, including, by the way, your own client. Now, I don't know if those are the circumstances here. I have no idea. I do not have an insight into this. So if you're listening to this and you've been involved in the case, I don't know that this is the case, but I know it

has been the case in public interest litigation many times, many times. And so one of the things that you often end up doing when you're an attorney in public interest litigation is, especially in First Amendment litigation, some of the folks who are willing to file lawsuits to vindicate their First Amendment rights and to press the envelope to vindicate their First Amendment rights and to press the envelope to vindicate their First Amendment rights, you know, they've got a mind of their own, Sarah. They've got a mind of their own. It's one of the reasons why they're in hot water. God love them. We need these people to maintain the perimeter of the First Amendment. But sometimes they can tick off a judge. But sometimes they can tick off a judge. Sometimes they can tick off a judge. And they do. And this is a litigation challenge when you're a litigator that they often don't talk to you much about when you're coming up in litigation is client management of very strong-headed clients. It is a real challenge. I mean, heck, I could do a whole podcast on it, Sarah, and I wouldn't exhaust it. I could do a whole podcast.

But reading through this record, it was obvious to me. It was obvious to me that he lost because a majority of the court did not like the way he behaved. Well, everything he did after he filed his lawsuit ran directly orthogonal to his arguments in the lawsuit. We have another big, big one to talk about, and that is a chink in the qualified immunity armor for these non-police officer, non, you know, oh, my God, you have to decide in the blink of an eye. It's a school and they're violating someone's, wait for it, First Amendment rights.

Yes. Oh, now this case. I like this case, Sarah. Like this case, Sarah, it's too bad that y'all aren't privy to our Zoom feed because as soon as Sarah said, chipping away at qualified immunity, I raised both arms in the touchdown gesture. This is a fantastic case. InterVarsity Christian Fellowship USA versus University of Iowa. And by fantastic case, I mean awful case with a fantastic outcome.

Awful in the sense that the University of Iowa, the facts here are really grim for the university. What it did is it had a human rights policy that prohibited its student organizations from discriminating on the basis of multiple categories, all of the typical categories, and that prohibiting the student organizations from limiting access. But they didn't apply it to everybody. So, for example, they would allow an all-women's a cappella group. They allowed for fraternities to be all-male. They allowed for some religious groups to require their leaders to, for example, quote, refrain from major sins or be Muslim or Shia. And the university never thought those groups violated

the human rights policy. But along comes a couple of groups, business leaders in Christ. Business leaders in Christ denied a leadership role to a student who refused to affirm the group's beliefs regarding same-sex relationships, and the university took action against business leaders in Christ. Well, during the litigation, when it turned out that the university was not applying its policy in an even-handed manner, what the university did was then decide to sort of exclude more groups from campus, but while still not applying the policy in an even-handed manner. So, they expanded their dragnet for a number of other Christian groups while still providing preferences for other organizations. So, for example,

the student who left the organization because the student who was denied access to leadership and business leaders in Christ started his own organization that required people to affirm the morality of same-sex relationships. And that group was allowed to exist. So this was classic viewpoint discrimination, classic viewpoint discrimination. And not only did InterVarsity win, which was one of the student groups kicked out on this sort of second wave of removals, it stripped qualified immunity. They pierced qualified immunity. And so there's going to be individual liability in the case, which is, I can tell you, I can

tell you, it is not the normal course of action in universities' free speech litigation, in spite of the fact that the record is full of cases across the country from coast to coast, defeating university policies and defeating university actions on First Amendment grounds, but consistently qualified immunity attaches. But not here. Not here, Sarah. Yeah, this was a bizarre case in that it's rare to find, I mean, a defendant who just keeps making their case worse and worse and worse and worse and worse to the point that they don't even appeal on the issue of whether they violated these students' rights. That was not part of the

appeal at all. It was only whether they get qualified immunity. I mean, that's how bad it is. You know, I thought a couple of things were interesting. One, that of the student groups, you know, who they like try to then kick out and then give them exemptions from the very policy that they, I mean, that's the one thing you can't do. You can't give exemptions. One was just the exact opposite of this student group. Do you remember the name of it? But basically it's Christians for gay marriage. And in order to be a leader in that, you have to agree with gay marriage or something to that effect. I mean, it was literally the exact same student group with the opposite political belief. And they were like, yeah, yeah, exemption for them. They had an exemption for

a Chinese student group that you needed to be Chinese, which violates the race part of it. They had one for a black student group. I mean, on and on and on it went of giving all these other exemptions that were the exact same legally as the one that this student group was asking for. The difference was they didn't like this student group, and so they wanted them not to be a recognized student group. The end. That's pretty bad. I think that, yeah, I don't see how that's not clearly established. Now, their argument on the defense side for why they get qualified immunity, why it was not clearly established, is the all comers lawsuits where a school that says that all student groups must accept all comers, they can't distinguish at all

for any reason. And it's applied to every student group. That is constitutional. It does not violate someone's First Amendment rights. For instance, if they want to then have leadership sign some pledge and the school says, no, you have to accept all comers because all student groups do because that's the community we're fostering here. It's sort of that neutrally applicable thing, David. The school didn't even claim that this was an all comers policy because it wasn't an all comers policy. It's on its face. So the club you're thinking about is called Love Works. Yes. Love Works, Sarah.

So I love the way it's phrased in the court's opinion. It says, the university's review led to InterVarsity's deregistration along with other religious groups. Because they're saying that the university's review prioritized religious organizations. And it says, the university's fervor dissipated, however, once they were finished with religious RSOs. Sororities and fraternities got exemptions from the human rights policy. Other groups were permitted to base membership on sex, race, veteran status, and even some religious beliefs. Take Love Works, for example. It was formed by the student who was denied a leadership role in Business Leaders in Christ. Love Works requires its

members and leaders to sign a gay-affirming statement of Christian faith. And then it says, we are hard-pressed to find a clearer example of viewpoint discrimination. I mean, truly. So, to back up, the student in question was part of the organization, the, what is it called, David? Business Leaders in Christ. Business Leaders in Christ. He wanted a leadership position. He went, told them that he was gay. They said, would you refrain from homosexual sexual activity during the time that you're a leader? He said no. They then went and asked all the students to say that no sexual activity outside of marriage would be permitted from their leaders. He refused to sign that. And he then is the one who went to the school and asked them to be not recognized as a student group, that they were discriminating,

et cetera, et cetera. I actually have to say, David, this did not feel like a setup case to me. The student, I think, genuinely was a part of the student group and things sort of spiraled slowly, perhaps, but nevertheless. But then the student totally understandably starts his own student group for Christians who are gay affirming. And the school, these stupid, and this isn't a high school or a junior high, David, where I expect them maybe to not, both not know the law, maybe, but also not have the legal team

to tell them what the law is. This is the University of Iowa. What? I know. And the University of Iowa said, yes, you have to sign a statement of Christian faith that is gay affirming for that student group. But no, you cannot sign a statement of Christian faith that is not gay affirming for

the other student group. And nobody saw a problem with that. I don't think that this will go to the Supreme Court because it's too easy and the right, the correct side won. So University of Iowa does not get qualified immunity. They will be paying these people a lot of money as a result. And it is a great precedent to have out there because it is so far at the extreme. Now you can just move down into the closer call cases. Yeah, yeah, exactly. But it's an important case because I can tell you, Sarah, I got involved in multiple cases with very clear viewpoint discrimination in my legal career. Speech code cases where the unconstitutionality of the speech code was blatantly obvious. But qualified immunity, qualified immunity, we could get injunctive relief, you know,

so we could get relief for the client. We could, you know, we could get attorney's fees, but any kind of individual liability, nope, nope, nope. And so to see this qualified immunity wall crumbling, so we've seen it crumbling a little bit in the Supreme Court and sort of the police and official misconduct arena. And we're now seeing it crumble a little bit in the circuit courts outside of police misconduct. All of this is welcome because it's getting us back to the actual language of the civil rights statute itself, which says that you shall, shall be compensated if your civil rights are violated. So this is welcome.

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Use code ADVISORY at checkout to save. Terms and conditions apply. All right, we're going to do DACA, DACA, DACA. So this is the Dreamers, right? And if you remember back, the Supreme Court in a divided 4-4, but, you know, everyone, blah. That was for the Dreamers' parents.

Wait a minute. Hold on. Hold on. What is the legal doctrine you're trying to express when you say it was 4-4, but everyone, eh? It struck down DAPA. It did. I mean, it actually did because it upheld the lower court, which had struck down DAPA. So even though you don't have a majority of the Supreme Court striking down DAPA, you have the result of DAPA being struck down. And for a variety of reasons, DACA escaped the guillotine that day. And then the Trump administration tries to rescind DACA. That was a flailing, a flailing bag of flaming Cheetos, David. That were in the dumpster that was on fire. in the dumpster that was on fire. So John Roberts, with a majority of the court, holds that the letter by which the Trump administration tried to rescind DACA failed to do it right, thereby putting DACA back in place, thereby restarting all of this litigation that had

been winding its way through the courts since DAPA. All right. So we finally got our first district court on DACA part 27 and it's zero surprise. It's judge Hayden. He strikes down DACA as not, uh, not legal under, you know, that the agency did not have the power to do this. DHS being the agency, Department of Homeland Security. And it's a Chevron case, which makes this a few ways interesting as it winds its way up. First of all, the Fifth Circuit is going to absolutely uphold this. The Supreme Court isn't going to want to take it, but you've got Chevron and they might. And it's a big, I mean, it's DACA. I mean, it's super weighty.

Now, the one thing he did, the judge did not invalidate. Is it now 600,000 Dreamers? Yeah. So he did not render them eligible for deportation. dreamers. Yeah. So he did not, he did not render them eligible for deportation. What he said is no future DACA applications will be accepted. Yeah. So that's the result. And he said that from an equitable standpoint, he said the reliance interest is just too great. It's not that those were somehow legal, but the new ones wouldn't be. It's that, you know, this case has basically taken so long. It's been such a freaking mess

that, yeah, those people have now taken so many steps relying on that, that it would be absolutely he's right, by the way, totally unreasonable to say, oh, all those things you've done to publicly say, like, don't deport dreamers. We need to have legislation for dreamers. I'm a dreamer that now you can't take away that protection because they've done all these things they would not have done raising their hands and saying, I'm here illegally and making themselves targets for deportation. So I'm very glad about that part of it. But the administrative law part of it is really interesting. I'll just read the end of the opinion. DACA cannot withstand analysis under Chevron's first step. Chevron is whether the agency, like how you read an agency rule.

We'll get, I'll go into Chevron in a second here. Because Congress has directly addressed the precise issue at hand. It has not delegated the authority to adopt DACA to the Department of Homeland Security. Congress's clear articulation of laws for removal, lawful presence, and work authorization illustrates a manifest intent to reserve for itself the authority to determine the framework of the nation's immigration system. Against that backdrop, DHS may not lawfully do this thing that is wildly in excess of its statutory authority. Therefore, it violates the APA. Therefore, we're done. So a few things. One, Congress at the time may have had the clear intent to set the immigration policy for the

United States, but they would sure like to not have to do it now if the last 10 years is any indication. Yep. So that's funny. Second, Chevron. Let's just do a quick Chevron refresher. Chevron has three steps, but one of them's called Step Zero, which is annoying for everyone. Step Zero, does the agency have authority to issue binding legal rules? If no, Chevron does not apply. Step one, is the statute ambiguous? If not, the court simply decides the interpretation of the statute itself. Step two, is the agency's interpretation reasonable, even if the court itself would

have chosen something different? So in this case, what he's saying is the agency is trying to claim that this is prosecutorial discretion. They can't deport everyone. They have to choose who to go after. And all DACA does is say, hey, we're just prioritizing people who were not brought here illegally as children. And so under step one, is it ambiguous? That's not at all what DACA does. DACA gives work permits, work authorizations. I mean, it does all sorts of things beyond just saying that's not our priority to deport. And that's where the problem has always been. That is legislating. That's not interpreting legislation. That's not promulgating a rule about legislation. No, no, no. So what the judge here said is you fail step one. And even if you

didn't fail step one, you definitely fail step two, because that's not a reasonable interpretation. I think he's right. I think he's right. And I think he's right on the remedy as well. I mean, if you're fashioning an equitable remedy, there's a lot of discretion that the judge has to do that. Now, the interesting thing about it is the fact that he did not invalidate the DACA work that, you know, the DACA permits means that he did not create a political emergency. And by not creating a political emergency, on the one hand, I think that's exactly right for the dreamers. I think that's the right outcome for the

Dreamers because they put their hands up, as you said, and say, hey, I'm here illegally and relied on this. They have relied on this for years. So he did exactly what he should have done for the Dreamers. But it also has the effect of meaning that Congress gets to keep on punting. Congress gets to keep on punting. And I think, frankly, in a weird way, both sides are kind of happy with this situation because it's awful. Yeah, because what they got to do if you're the party in power, they kind of like this situation because the party in power writes the whatever law they want through executive agency action. And the party out of power gets to scamper

to cable news and complain about it and then flip the roles when the presidential, when the White House flips. And it's all so dysfunctional. It's all so ridiculous. And, you know, I think it's in the arena of immigration that I think that congressional dysfunction may be most obviously acute and perhaps even from a policy standpoint most harmful in the sheer millions of people who are impacted by it. The inability to craft, the inability to craft immigration compromise legislation or agree to immigration compromise legislation that would honestly, Sarah, be broadly popular. Indeed. And so timing wise, we just got this decision. It'll go to the Fifth Circuit. That'll

get, take a couple months to get calendared, get all the briefing scheduling done, you know, a month or two on the back end to get the opinion. Then it'll get cert petitioned to the Supreme Court by whichever side loses. We are definitely talking about an OT22 Supreme Court case at this point, if they accept it. So we've got a ways to go. You and I will talk about it again in, you know, a year. Yeah, exactly. All right.

Hey, David, before we leave, by the way, I've got one charming thing to add to our discussion. Okay. So Professor Oren Kerr of Cal Berkeley is a great person you should follow on Twitter, at Oren Kerr on Twitter. He just brightened my day today, and I want to give him a shout out. So in 1952, the Supreme Court had a case on whether people have a constitutional right not to have the radio on while riding in a rail car or bus. The Supreme Court, by the way, found that, no, you do not have a

constitutional right to have the radio turned off. But that's not what was most delightful about this. What is most delightful about this is Justice Frankfurter recusing himself and giving a statement on his recusal, which we so rarely, rarely get. And it's delightful. I'll just read a part of it. The judicial process demands that a judge move within the framework of relevant legal rules and the covenanted modes of thought for ascertaining them. He must think dispassionately and submerge private feelings on every aspect of a case. There's a good deal of shallow talk that the judicial robe does not change the man within it. It does.

The fact is that on the whole, judges do lay aside private views in discharging their judicial functions. This is achieved through training, professional habits, self-discipline, and that fortunate alchemy by which men are loyal to the obligation with which they are entrusted. Dot, dot, dot.

But it is also true that reason cannot control the subconscious influence of feelings of which it is unaware. When there is ground for believing that such unconscious feelings may operate in the ultimate judgment or may not unfairly lead others to believe they are operating,

judges recuse themselves. They do not sit in judgment. They do this for a variety of reasons. This case for me presents such a situation. My feelings are so strongly engaged as a victim of the practice in controversy that I had better not participate in judicial judgment upon it. I am explicit as to the reason for my non-participation in this case because I have for some time been of the view that it is desirable to state why one takes himself out of the case. As Professor Kerr summarized, Justice Frankfurter recused because he really

effing hated the radio playing on streetcars. It was so eloquent. It was so eloquent. I just have this image of a grizzled Supreme Court justice on a streetcar. Turn down that music. Turn it off. Don't you know who I am? I mean, it's the old man yelling at the cloud. It's so perfect.

It's so fantastic. It's so fantastic. That's outstanding. I love it. All right. That is it. That's it. Unless you have any more delightful nuggets. No, that's it. Thank you, Professor Kerr, for making my day that much brighter.

Yeah, that's fantastic. Well, thank you guys for listening. Please go back to Apple Podcasts. As I said all the time, please rate us. Please leave a review. Five stars only, please. Check us out at thedispatch.com. And we will be back again on Thursday. Thank you.