Advisory Opinions - First Amendment Lamborghini

Episode Date: January 14, 2021

This week, the Supreme Court heard oral arguments for Uzuegbunam v. Preczewski, a free speech case that will determine whether former Georgia Gwinnett College student Chike Uzuegbunam is entitled to nominal damages from an unconstitutional government policy when that policy has since been changed. “Arguably there is no more important constitutional law case that has come up before the court in the last several years from a philosophical standpoint,” Sarah says on today’s podcast. After our hosts discuss the legal mechanics of nominal damages and attorneys’ fees, they dive into Parler’s latest legal filings and the Constitution’s speech and debate clause. Show Notes: -Take our podcast survey -Uzuegbunam v. Preczewski case and oral arguments. -“A Eulogy for a Friend, a Lament for our Nation” by David French in The Dispatch. -New York State Rifle & Pistol Association Inc. v. Corlett. -“Are We the Baddies?” sketch. Learn more about your ad choices. Visit megaphone.fm/adchoices

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Get started for $1 down and then only $15 a month. Offer ends April 12th. $49 annual fee applies. See Home Club for details. You ready? I was born ready. Welcome to the Advisory Opinions Podcast. This is David French with Sarah Isger. And you know what we're going to do, Sarah? What are we going to do? We are not going to start this podcast by talking about impeachment, social media, insurrections, or anything like that. That's exciting for me.

I know. It's kind. That's exciting for me. I know. It's kind of a welcome relief for me. But we are going to talk about some of that stuff later. We're going to talk in particular about social media and the Amazon Parlay lawsuit, which I think is absolutely fascinating. We're going to talk about some of the controversies roiling Congress right now that I have a hard time caring about. The speech and debate clause is so exciting, David. Uh, I still have a hard time caring about.

David woke up today and he couldn't find any of his cares about the speech and debate clause. I couldn't, I couldn't. I reached down deep and they just weren't there. Um, but we're going to talk about something that, look, as soon as I say this phrase, there are going to be listeners, legal nerd listeners, who are going to leap out of their chairs in excitement. And that phrase is nominal damages. Woo-hoo! And the crowd goes wild. I know, I know. I can't contain myself. The damages may be small, but the crowd is large.

I'm actually a little bit triggered by this phrase for reasons that I'll explain. But so here's what we're going to do. We're going to talk about a very interesting Supreme Court oral argument that occurred earlier this week that was completely lost in the news cycle. that was completely lost in the news cycle. And can we just take a minute and pour one out for the advocates of this case? Because you spend your career as a lawyer, and unless you're Solicitor General, or unless you're in that very, very short, small, tiny rotation of people who get to argue regularly, arguing a case before the Supreme Court of the United States, especially a constitutional case, is a massive, massive career highlight. It's tremendous. Even if you've done it before and you might do it again at some point in the future, but you never really know,

can you imagine having this phenomenal career highlight happen in the context of an ongoing impeachment proceeding that has just followed a violent takeover of the Capitol and trying to get media attention? Okay, but in fairness, David, in the slowest of the slowest news cycles of the District of Columbia, nominal damages was not going to lead, you know, playbook or Axios. So sorry. But I'm here for you, Kristen. Kristen Wagner, the attorney who

argued the case for the plaintiffs. What about Hosh? I know Kristen. I don't know Hosh. I know Hosh and Kristen, I guess. Well, of course you know everybody. I just had to throw that in there for you. I know. I know. So anyway, I'm just going to start. I'm going to lay my cards out on the table. I'm biased in this case.

There's a shock. Okay, I'm biased. And I'm going to tell you why I'm biased. All right, let me set the stage. There was an oral argument in the Supreme court earlier this week in a case called, and I'm just, this is going to be bad.

I'm just going to warn you. It's going to be bad. The case is who's web. Okay. I even heard it pronounced. I listened to the pronunciation before. Like seven minutes ago. Seven minutes ago. I can't.

Uzwebunam? No, that is not even close to what you said seven minutes ago. Okay. The student's name is Chike. That's his first name. Chike Uzwebunam. Okay. I'm sorry. I'm sorry, Chike.

I listened intentionally to this pronunciation right before and my mouth like won't make it happen but anyway so we're going to call Chike Chike Chike has a case involved he Chike is a as a former student uh at Georgia Gwinnett College it's a it's a public college in an Atlanta suburb. And essentially what happened is Cheekay was stopped from distributing religious literature. A campus police officer told him he was only allowed to distribute literature if he'd reserved these specific designated areas, popularly known sort of as speech zones on college campuses. But then when Chee Kay booked one of those zones later to share literature, another officer told him he was violating the college's ban on disorder, quote unquote, disorderly conduct because his speech was disturbing. So what happens? He

files suit. You think, oh, he wins this case because can't you hand out religious literature at a college, especially in the speech zone of a college on a scheduled basis? And, well, no, you don't win. Why? Because Chike's lawsuit was thrown out after the college changed its policy and another student, and Chike and another student graduated. policy, and another student, and Chike and another student graduated. So in other words, he's not a student anymore, so he doesn't have any present free speech interest in the case. To kind of preserve the case, Chike had asked for nominal damages. Okay, for you guys who don't know what nominal damages are, it's like, I hesitate to use the term symbolic damages, but it's like uh it's a i i hesitate these terms symbolic damages but it's kind of symbolic damages this is that's exactly what it is yeah they it's usually one dollar and it's not about

the dollar um it's it's literally just to have anything on paper that would keep the case going and it's called nominal because it might as well be a penny, 10 cents, $10. It can be any amount. Right. Right. And I have received, Sarah, I'm the proud recipient. Well, my clients have been the proud recipients of nominal damages. Have you framed the dollar? In fact, the check, the check for a dollar, for reasons that I'll explain here in a minute.

So anyway, the issue was essentially if there is a nominal damages, and I'll read the question presented by the case. And the question presented was whether a government's post-filing change of an unconstitutional policy, in other words, you file to challenge a policy that violates the Constitution, they change the policy after you file, moots a nominal damages claim that vindicate the government's past completed violation of a plaintiff's constitutional right. In other words, if a government changes this policy after you file, does it moot your nominal damages claim to, in other words, allow the court to throw out that nominal damages claim? That's the issue. That's the issue. So, Sarah, actually, I had been intending to talk about this forever, and it just kept slipping

my mind in all of the news cycles. But Sarah, you brought it back to my attention and said, we got to talk about this. So why is it that you brought it back up to my attention? Because I've got lots of reasons why I was interested in this. Arguably, there is no more important constitutional law case that has come up before the court in the last several years from a philosophical standpoint. And when you talk about 1983 civil rights cases, you know, we have talked about free speech cases or free exercise cases in that context. This sits above all of that. And the reason is, you know, this was a free speech case, but it applies equally to that New York gun case from last term, where the justices basically, you know, kicked the case after accepting it. This was the case about when and how you could transport your weapon from

New York City to other gun ranges or gun clubs. New York basically lost the case at the appellate level, realized they were in for it at the Supreme Court, and changed the law after years of litigation just to avoid losing at the Supreme Court and paying out attorney's fees. And so then the Supreme Court mooted out the case. And so then the Supreme Court mooted out the case. If they had asked for nominal damages, maybe that case would have continued. But this is the case that will decide whether any of those cases can continue. So basically, right now, if nominal damages do not let you continue with your case, all that a government actor has to do is wait until they're just about to lose, change the policy, and save themselves a boatload of money in attorney's fees.

But if nominal damages continue the case, then we've got another question, which is, so you're going to lose anyway. Do you get attorney's fees? Is that considered the vindicated party if you win on nominal damages? And even if this case comes out that nominal damages can keep your case alive, it is not clear how the attorney's fee issue will come out. So basically the Supreme Court has one easy answer, which is nope. Nominal damages are part and parcel of the standing question, not separable from it. Therefore you can ask for nominal damages are part and parcel of the standing question, not separable from it. Therefore, you can ask for nominal damages, but it does not keep your case alive. You just get a check for a dollar that you get to frame on your wall. If nominal damages does keep the case alive, then the Supreme Court has a lot of other questions that they're going to have to answer

around this. But it is a big, big, big deal on any constitutional jurisprudence because so much of the time, you don't have actual damages. The example, by the way, that Justice Breyer keeps using in the argument, which is, I mean, I was laughing last night. You could read the entire argument and maybe you and I, like if I took out all the names, you and I would be like, oh, is that Gorsuch or is that Kavanaugh? I think that's Gorsuch, except for one. And that is, without his name, you would never confuse Justice Breyer for any other justice. I can't read his questions without hearing his voice in my head. So he keeps using the example of Blackacre, that is what all property is called in law school, and trespass. So if, for instance, I trespass every day on Blackacre and have a picnic there, I have violated your property rights, David, as the owner of Blackacre,

but what is your damage? I had a picnic, I cleaned up my trash, and I left. but what is your damage? I had a picnic. I cleaned up my trash and I left. And so in trespass cases, we still say that there are damages, but not in constitutional law cases, not in your free speech case. Like, okay, so you didn't get to talk. Well, that's a bummer. So we'll get into what the various options are and the Supreme Court arguments, but there is no question that this case sits above basically all the other cases we've ever talked about on con law, because this is the case that will decide whether so many of these cases that the government basically weasels out of get to continue. government basically weasels out of get to continue. Right, right. And so I'm going to tell you stories. It's story time. Are you ready for story time? I've got my cookies and milk and

I am ready. So let's make this really super, super concrete. A school has a policy that says acts of intolerance will not be tolerated. Okay. Get it, get it. Yeah. Pursuant to that policy, it requires a student to take down a poster that they've posted on their dorm room door that is a picture of Osama bin Laden in the crosshairs.

This is after 9-11 with a B-52 over his head. How does that violate the acts of intolerance policy even though it's a visual representation of actual american foreign policy at the time which was to try to get bin laden by b-52 or otherwise because it was deemed to be subjectively by the administration offensive to muslim students um if I'm a Muslim student, I'm offended that you think I'd be offended by going after Osama bin Laden. But that's a whole nother thing. Right. I'm not really offended as an American if you have a poster of Timothy McVeigh with crosshairs on him. It may be in sort of poor taste for other reasons, but I'm not offended. Right.

But anyway, so what do you have? You have an unconstitutionally vague policy. This acts of intolerance will not be tolerated. You have a concrete action in violating the rights of a student under this unconstitutional policy. They've taken action under this policy. And so I file a lawsuit as the lawyer. I win, right? Yay, yay.

This is easy. This is simple. I win. Unconstitutional policy, violation of First Amendment rights, a concrete action taken against him. It's easy. It's over.

It's done. Hmm. So I'm the defense attorney for the school, and here's what I do. I say, well, Mr. President of the school, that policy is unconstitutional. Okay, what should we do? Change it. All right. So you change the policy. What does that mean? a big mistake. But anyway, I'm going to change the policy so we don't have an injunction against a future violation. All right. Well, then you say, well, wait a minute. The student was damaged, but he still has the poster. They didn't destroy his property. So he doesn't have a monetary claim for my $10 poster, if he made it himself for the Elmer's glue or whatever. I mean, I don't know,

the markers. So you don't have a monetary damages claim. And then you say, well, he still lost his First Amendment rights. And you say, well, what's that worth? What is the financial value of that momentary loss of your First Amendment rights that was illegal. And that's where the nominal damages come in. The law said, well, that might give you some nominal damages. And then that's why this case matters, because in these circumstances, if the school changes the policy and all you're left with is this nominal damages claim, and the court then says that the nominal damages claim isn't important enough to keep the case alive. You're done. You're done.

And I face this kind of thing constantly, constantly. And we never really got to the nominal damages issue because we typically litigated on the doctrine called capable of repetition but evading review. And that was essentially if it was super easy, super easy for the school to change its policy in an afternoon when we sue over an unconstitutional policy and the case is dismissed, then they can change the policy back very quickly. It's not like a legislative body passing a law like happened in New York in the gun case. So we were able to say, typically, successfully say to courts, not always, but typically, hey, look, I mean, they changed this in the afternoon. We still get an injunction against this policy, against them changing it back. But I did have a case. You can look it up.

You can look it up. It is called Temple versus Dijon. And it's a Third Circuit case. And it was decided in August 4th, 2008. And it was decided when I was in Iraq, actually. But it was a case where we received a $1 nominal damages award after we got the Temple University speech code struck down. And we frame that. Why, Sarah? Because we also got a quarter million dollars in attorney's fees. That $1 was pretty expensive for them. Yes. Yes. So that's why this really matters. This is something I've

faced again and again. We have not been able to quantify what a violation of your right to free speech is worth. If you're told to stop speaking, what's the financial value of that? And this is something, there's a term under the law that's called liquidated damages. So liquidated have a concept like that for the First Amendment. There's not sort of a liquidated damages of the First Amendment. So we have these symbolic damages. And the reason why I think it's vitally important for the court to rule for Chique in this case is what ends up happening is the combination. If we treat nominal damages as not significant enough to continue litigation and we allow a school to just sweep away, to change its policies and say, move along, nothing to see here, you don't really have, it's very difficult to have a truly judicially enforceable First Amendment right.

One with any sort of lasting bite to it. Because of procedural maneuvering, the school's able to just evade continually sort of bob and weave and bob and weave. So anyway, that's my rant. That wasn't really a rant. No, that doesn't count as a rant. No, that's my rant. That wasn't really a rant. It's just sort of my- No, that doesn't count as a rant. No, that doesn't count. I want to back up a second to sort of first principles in Article III jurisprudence. Yeah, good.

We have talked on this pod in the context of the Trump campaign cases, for instance, about standing and how some of those cases they didn't have standing. And so the courts kicked it out because the person bringing the lawsuit wasn't the person of interest, you know, et cetera. This is also about standing, but it's a different type of standing. So in order to have article three standing, you have to have a live case or controversy. What they don't want to do is have advisory opinions. You go to court just for a court to say, you're right, Sarah, and David's wrong, about, you know, just like an argument

that we're having about something in the future that may or may not happen. I just want to know, you know, me, Sarah, that if David at some point in the future wants to come over to my house without permission, he can't and I can shoot him from 100 feet away. Right? The court's like, wait, did David try to come over to your house? I'm like, no, no. Has he said he's going to come over to your house? No. I would like a court to tell me that

if that were to happen and he brings a unicorn with him, that I can also shoot the unicorn. And the court's like, no, that's an advisory opinion. And we don't do that. You have to have a concrete injury. Uh, and it has to be a live case or controversy. Well, so this is the problem with these cases. There is no longer a live case or controversy because the school has changed its policy. So for instance, you know, someone violates your contract. Okay, well, that harm's already done, but then you have damages, real damages to make you whole again. Well, the court's like, okay, but in this case, you don't have any damages. So there's literally

nothing else for us to tell you except you were right and they were wrong. And that's an advisory opinion. That's where the trespass example becomes really relevant because why is that different? That seems more like the first amendment cases than it does the contract cases. You're not really making someone whole for this past harm that they suffered because they didn't really suffer an injury. They barely knew I was picnicking on black acre. Um, but for the picture that they took, you know, uh, however, there are different types of damages. So there's compensatory damages. That's what we're talking about with the contract damages that make you whole. You had a loss and now you want that hole to be filled up to where you were beforehand. Compensatory damages. There are punitive damages. That's where we've made you

whole, but also we want to shame someone. And so we give punitive damages to punish them. That's why they're punitive. Statutory damages. That's where it doesn't really matter what harm you suffered. Congress has said that everyone sort of by definition gets this amount of damages, that there is a sort of minimum damage that you suffered by virtue of the violation. And then there's trouble damages, which is also, again, sort of a form to me of punitive damages. It's meant to be punishing. which is also, again, sort of a form to me of punitive damages. It's meant to be punishing. And then there's these nominal damages. And so the anti-nominal damages folks are saying that nominal damages that don't deal with future harm, right? The school is never going to do it again.

And you do have to stipulate that, like understanding David's point about capable of repetition, but evading review. Assume that's not on the table here. The school really isn't going to do it again. So we're not dealing with future harm. We're not trying to prevent the school from doing something. And the damages aren't based on quantifiable evidence of past harm, right? The student admits there's no real evidence of past harm, right? The student admits there's no real particular dollar amount to his harm. Then it's just an advisory opinion. The problem is that punitive damages, statutory damages, treble damages also don't fit into those categories, but they still feel different than nominal damages. Nominal damages is the closest thing, certainly, to an advisory opinion that you're going to get. I think that this case is really hard. I understand why David, like, his hackles are up and he wants his dollar because it is so frustrating to litigate these cases only to have sort of the weasel out option that the government, the state actor will always have. that the government, the state actor will always have. But the nominal damage thing presents its own problem. If everyone can just say, well, I want a dollar, therefore my case continues forever,

you run into a little bit of the problem of me saying that I want the court to tell me that David can't bring his unicorn over. So shall I dive into the argument of it, David? Well, let's amplify the attorney's fee part of this just for a minute. Yes. Because here's where in constitutional litigation, free speech litigation, the real money at stake almost always is the attorney's fees. stake almost always is the attorney's fees. And I'll give you a sense of perspective on that. I had a case involving a professor, my friend Mike Adams, who I wrote about him, tragically took his life in 2020, took his own life. But we fought a case for seven years, a hard, hard, hard case involving unlawful retaliation against him where he was denied a promotion for almost seven years unlawfully. And now we had no problem with damages, proving damages. We had compensatory damages. There was a gap between the pay he would have gotten had he received the promotion and the lower compensation that he had

as a result of being denied the promotion. We won. The jury said unanimously and maybe at most 90 minutes of deliberation that we won. And so we got the compensation, which was less than $100,000. The gap in compensation was less than $100,000. But our attorney's fees were almost $700,000. In the Dijon case, again, this case, we got the $1, we got a check for $1, but we spent about a quarter of a million dollars litigating it. So we got the quarter of a million dollars somewhere around there. I could go on and on and on. I mean, case after case, student fee cases where we might get a student group on campus,

$1,500, $2,000 in student fees, but it took us $300,000 of time to litigate the case. And so that's hovering in the background of all of this because the reality is truly honestly, and kind of everybody knows it and it's acknowledged within the argument. The reality is that it's not a nominal damages award that's at stake. It's an attorney's fee award that's at stake. And the attorney's fee award under the law only applies to what's called a prevailing party. And so what's frustrating for so many constitutional litigators is you can file a lawsuit, receive relief for your client. the mootness doctrine and nominal damages, you're not deemed a prevailing party. And then therefore, you're out if you're a pro bono attorney. All of those resources, you've poured into that case. So that's hovering in the back. We're not even really hovering. It's foreground. It's foreground. Okay, Sarah, sorry. Go. So that's true. And I am very sympathetic to it. The flip side of that, though, is that it also I mean, let me phrase everything you just said in a different way. So the actual injured person didn't really suffer anything, but a bunch of lawyers need to get rich. And that's the problem with all of these cases.

We got to eat. A bunch of lawyers need to feed their families. We got to eat. A bunch of lawyers need to feed their families. that they can just rack up hourly billables and dollar amounts. It encourages more litigation, less settlement, more claims being brought, longer ones, and petty ones. Not frivolous, but petty. Well, they violated my rights, but in a silly, silly way. You know, let me... I'm going to annoy you here, but does it really matter whether the student could keep up his Bin Laden poster? I know it does on the one hand. And on the other hand, do we need years of litigation and a quarter million dollars of money changing hands to think about that Bin Laden poster? I know the answer is yes, David. I know that. All right. But my point is that it's an odd byproduct where the actual damages are the time attorneys spent on it and not anything for the client.

And just to be clear, I don't want, because I threw around some big numbers there in cases I was involved in, I don't want, because I threw around some big numbers there in cases I was involved in. I don't want any listeners to believe that I have a First Amendment Lamborghini in my garage. All of those dollars went back into the nonprofits that I worked for. They did not go into my pocket. Yes, because you are terribly scrupulous in all of that, but that's not necessarily the case around the country. And we know there are plenty of non-frivolous but petty lawsuits that go on every single day. And they have been encouraged by all sorts of fee-shifting scenarios where there's incentives to continue litigating, and often those incentives are with the attorneys. So with that said, the argument this week was pretty exciting as these things go. It was not the most comprehensible argument, I will say.

Like, you know, sometimes I'm like, oh, guys, go read this argument. Maybe not here. Maybe not. But I'm going to walk you through a little of it. little of it. So first of all, there's two different plaintiffs here. There's Chike, who we've told you about. That's the kid who was told that he couldn't, uh, you know, it was actually, I mean, it was pretty egregious, you know, after I just get off my like pettiness high horse. So he tries to do it on day one. The cop comes and tells him like, no, there's a free speech zone. You have to apply for a permanent yada yada. And then he does apply for the permit, goes to the free speech zone, does it again. And the cop tells him that they consider what he's doing now disturbing the campus. And so we can't do that either. Okay. So he's the one plaintiff. Check. That's pretty traditional. But there is another plaintiff here named Bradford. Bradford is just another student at the school who said that he would have done some proselytizing, but his speech was chilled by what happened to Chique.

And that if you allow Bradford to have standing as the like, well, I woulda, coulda, mighta, that then that also would open up standing doctrine quite a bit. So at the end result opinion, you're going to have some conversation about whether both of these people have standing. No question that Chique does. A real question over whether Bradford does. That will also have a lot of bearing on future, especially First Amendment cases, if you can just get into court by saying that, like, well, I saw it happen to someone else, and so therefore I didn't do something, because then it's whatever's in the

mind of that plaintiff. But let's move that aside. So then Breyer, well, Roberts is concerned about sort of the conflation of merits and standing into one flat question. I think that whoever writes the opinion will have to separate out the two. The problem is that this isn't the only area of law where you have to kind of accept the merits, you know, that there was a violation in order to find standing. And so that's always going to be messy. I thought that the question and answer between both Roberts and Kristen and Roberts and Hosh, who represented the Department of Justice, Hashim Mupan is his name,

but he goes by Hosh. So I thought that both of those were pretty messy exchanges. Hosh gave a good answer, but it did not seem to satisfy Roberts. So Roberts is definitely on the fence on this one, I think. You have Breyer.

Breyer's point was that on the trespassing cases, there's just not that many of them. There's like sort of a finite amount of land. There's a finite amount of trespassing. And so like, yep, that's why we allow these sort of made up damages and trespassing cases. But what you're talking about are potential violations of,

you know, I think he says like 400 million laws and that it could just explode into the courts. And LaCosche's answer to that is like, yeah, it's not already though. Like this isn't, nominal damages isn't going to really change the number of cases that start in court. It's going to change the number of cases that continue in the courts. I thought that was a very good answer to that.

Oh, and I think it's completely correct. We were never deterred from filing a single case by this doctrine right because no one's no one's coming after that dollar in the first place like even if they're like yes nominal damages are great you're like oh sweet i get a dollar i will file that case now uh but it will you, you know, the hundred cases that are filed on free speech, you know, I don't know, David, you know better than I, what are 60 of them getting mooted out? No.

By the end, by the very end? Well, okay, I mean, let me put it this way. I would say... Or settled or dismissed, you know, like... I would say of every 10 cases that we had that was litigated through, five or six ended up being litigated on mootness grounds. Yeah. Because we had achieved results through voluntary cessation,

but we're seeking final judgment. And y'all were at the high end of this. You weren't taking cases that were little chintzy cases. You're taking the big ones and you're still getting 50 or 60% with this problem. Yeah. That's just a back of the envelope guess. Yeah. And can I interject one thing about me riding a unicorn across your front yard, Hypo, the advisory opinion? The idea that I would do anything except welcome you in the unicorn is laughable, but... Well, I mean, the unicorn alone would be worth the welcoming. Oh, I would knock you off the unicorn, but I would take the unicorn.

So the difference between sort of your, I want a opinion telling David that he cannot ride the unicorn across my yard, is that in these cases, I rode the unicorn across your yard. The violation occurred. And that's what I'm litigating over is the existence of an actual violation. over is the existence of an actual violation. And my assertion is, and this is where this gets kind of squirrely, which is I'm not saying, I'm not, my assertion is applicable law means that, dictates that this was a violation. I'm not saying, hey, by the way, could you define this as a violation? It's more like, can you apply the law to recognize this violation? And so, yeah, that's one of the limitations here, I think, on this sort of a litigation will explode. Well, there's got to be the violation. There's got to be the violation. It happens. And that's

the predicate for the case. All right. Let me bounce through the rest of these questions here. And that's the predicate for the case. All right, let me bounce through the rest of these questions here. Yeah. Kagan really wanted to discuss, I love it, by the way. She said, I think that these cases that you have fall into three groups. But you know how I'm going to read that, David. That's three buckets.

Yes, of course. So she says the first are, and she's talking about the history here because Hosh comes in hot with a bunch of like justice story and 19th century, you know, property law and all sorts of stuff. And she says, look, you know your history. You have the better argument based on that history.

But let me tell you why the history is not relevant anymore. Because here are the three buckets. One, the cases that you're talking about would now be declaratory judgment actions. So that is by the way, a weird out in the whole, like I need someone to tell me that David can't ride a unicorn onto my lawn, but I basically need to have like concrete evidence that David is imminently going to ride a unicorn onto my lawn. He has the unicorn, he's at the edge of my property, and he keeps yelling at me, I'm gonna ride this unicorn onto your lawn. So then that's a little carve out there where you can sue over a future harm.

So she's saying that's one group. Yes, they used to allow basically nominal damages for things that we now call declaratory judgments. Second group, cases in which there's injury that's just hard to monetize. That's more like the Black Acre trespassing example. And she says, but now we monetize those claims all the time, which is true. You can get an expert to say that it cost him $20,000 in emotional distress when he had to go to his pastor and explain why he wasn't able to convert three people that day. And then the third group, she says, bucket, are cases in which the plaintiff really wants vindication. It's a statement that I'm right, that the defendant is wrong. And as to those cases, modern Article III jurisprudence says that,

you know, you don't, that's not a case or controversy. And I think that was a really smart way to split up what we're talking about here. And I kind of agree with her. It's why the sort of common law history where yes, nominal damages existed just isn't that relevant anymore. That doesn't mean that you might not have Kagan on some piece of this, but oof, she, I thought she did a nice job on that. Okay. Next up we had, uh, by the way, we're going to go Gorsuch, Kavanaugh, Barrett in order because I thought all three raised really important points. Okay. So now we've got Justice Gorsuch. He takes Justice Kagan's three buckets and kind of eviscerates them. So basically says that, no, these cases weren't proto-declaratory judgment cases. They actually

were different, and the history does matter on that bucket. And on the second bucket, the kind that have become compensatory because we have super smart people who will break apart all of the hurt and pain that you have and put a dollar amount on it, Justice Gorsuch says this. pain that you have and put a dollar amount on it. Justice Gorsuch says this. Is the essence of your response, this is to Hash Mupan, who is representing the Solicitor General's office, is the essence of your response that yes, maybe we do, and we have great lawyers and economists who can do that today, but one need not do that for Article III purposes because historically, that was not done. And Hosh says, that's right. Common law courts and Congress ratified that through Section 1983. We're entitled to decide that you at least get a dollar. Now, if you have

clever lawyers and you can do the sort of thing that Justice Kagan identified, then you can get more. You can get quantified. You can get compensatory damages for quantifiable, specific evidence of harm. And Justice Gorsuch says, but perhaps one shouldn't be penalized for lacking a clever lawyer. That is a really important argument when it comes to nominal damages. Talk about incentives. Do we really need to make it so that you must hire a more expensive lawyer, then hire several expert witnesses to prove up your compensatory damages claim? Isn't that just making this all more expensive to litigate out your rights, worse than the incentive problem with the nominal damages world in the first place? Kavanaugh comes in and says something that David French will appreciate. in the first place.

Kavanaugh comes in and says something that David French will appreciate. So that leaves me with a strong suspicion that attorney's fees is what's driving all of this on both sides. Because, correct me if I'm wrong,

if you sue for injunctive relief, the defendant changes the policy as happened here, you get no attorney's fees, correct? Hush. Yes, that's correct. Kavanaugh. Okay, but if you have nominal damages, you can get attorney's fees, correct? Hush. Yes, that's correct. Kavanaugh. Okay, but if you have nominal damages,

you can get attorney's fees, correct? Hush. Right. Kavanaugh. Right. So what seems to be driving this- That's called saying the quiet part out loud. That's right.

Okay, so then Kavanaugh wants to break apart. How are we going to do this on attorney's fees? Because if before you change the policy, you get no attorney's fees. Now, if you ask for a dollar, you get a quarter million dollars all of a sudden, surely it's not going to be that black and white. And Hosh has to acknowledge that like, yeah, this could get a little messy. So for instance, uh, what if on top of changing the policy, they deposit a dollar into your bank account, David, then is it moot? Then do you get attorney's fees? And I think the answer that Hosh has is actually pretty good, which is look, when it comes to looking at attorney's fees, they're not automatic. It's not like David turns in a bill for a quarter million dollars and the judge is like, well, them's the attorney's fees. We got to pay it. Not at all. Very rarely

do attorney's fees get paid out in full. The actual bill that the attorney submits to the court, there's a reasonableness standard. There's a, you know, there's all sorts of stuff. And so what Hosh is basically acknowledging here is that, yeah, perhaps the fact that the damages were only nominal, uh, matter. For instance, if David files the lawsuit without going and talking to the school at all, and the school's like, oh my goodness, we had no idea this policy back from the 1800s was even still on the books. They changed the policy instantly after the lawsuit is filed. And David, who's kind of a jerk, says he wants his dollar and continues to litigate all through the appellate courts for years and years and years, and then says, ha, I spent $2 million litigating this case. And the school's like, I changed the policy the day after you filed the

lawsuit. A court can just say like, yes, David, you're the party who was vindicated, but those are not reasonable attorney's fees. On the flip side, you have the version of the New York case where in fact the state actor litigates the case for years and years and years and years. And then right before the court's about to rule against them, they change. And then David comes in and says, I need $2 million of attorney's fees. And the other side says, yeah, but he only had a dollar in nominal damages. Then the court can say, yes, and you're the one who chose to litigate this state actor for years and years when you should have known you were on the wrong side of history. And Hosh is basically saying, this isn't that hard. Courts can make this decision.

They can decide the attorney's fee issue. Whether we allow nominal damages or not, is not going to suddenly be just a black and white flip of a switch of like, oh, now everyone's paying out buku attorney's dollars. And Sarah, can I interject to say that the latter scenario is far more likely than the former for a very simple reason. Most of these, 90% of these cases on First Amendment grounds are brought on pro bono basis. And so are you going to, for vexatious reasons, front hundreds of thousands of dollars of legal time in the hopes of recouping it all at the end? That's dumb. Like that's just dumb. That's just dumb. No, in fact, I feel like I know far more lawyers who

think twice about taking one of these cases because they are actually concerned that they'll just change the policy right away and instead are like, let's just try to write a letter and see if they'll just change the policy. Threaten litigation, but don't even bother filing because I don't want to spend all this time and resources because then they are going to change the policy and then I'm not going to

get any attorney's fees. Yeah, we didn't always do demand letters when I was doing this, but 90% of the time we did a demand letter. And if we got the win, we'd issue a press release and move on to the next thing. So then you have Justice Barrett with the other really obvious. So you started the really philosophical with Justice Roberts, like, but are we really collapsing the standing inquiry with the merits inquiry? All the way through to do you need an expert witness to? Yeah, but isn't this really about attorney's fees? And then we're down to Justice Barrett, who's like, OK, but let's talk about the specific case that this is about. The New York rifle case.

Right. So she says last term in New York State Rifle and Pistol Association, we held the case. The Second Amendment challenged moot because the city of New York changes policy. Was that then really just kind of a technicality? If the Pistol Association had sought nominal damages, would that case have had to come out the other way under your theory? nominal damages, would that case have had to come out the other way under your theory? Hush. Yes. I think if they had always had a live nominal damages claim in a case like that, once you're already at the appellate court, the court would have been a live claim, and they wouldn't have been able to just say, oh, we'll pay the dollar. Um, that is in some sense, the, the, the big question, David, and what happens is that a lot of the times the New York case in particular was baffling that they didn't ask for nominal damages.

Everyone was like, what, why did you let this get mooted out? And that this could, the New York case could have been the nominal damages case. Yeah. So, Sarah, have you seen Rambo First Blood Part 2? I think it will come as a surprise

to none of our listeners that I have not. Really? Seriously? You haven't seen the Rambo series? Okay. In fairness,

it's a little before my time. But also, in fairness, it wasn't that good. Oh, man. Okay. In fairness, it's a little before my time, but also in fairness, it wasn't that good. Oh, man. Okay. Oh, man. All right. Well, okay. I don't know what to do with the rest of this podcast, but table that. Let's table that. I'm going to seek a declaratory judgment from a court of proper jurisdiction first blood is 1982 rambo first blood part two which might be the worst name ever is 1985 rambo 3 is 1988 then there's a rambo 2008 and a rambo last blood 2019 i also just not a sylvester Stallone fan. I don't think that that's like,

that's not the action movie I go in for. I'm much more James Bond, Mission Impossible, like cleverness wins the day versus brute force. Yeah. Declaratory judgment, nominal damages. I'm going to seek a declaration that Rambo is actually good. But anyway, Rambo First Blood Part 2, after Rambo rescues Vietnam, the American prisoners of war that had been left behind the waist, muscles bulging, M60 machine gun, and just goes and just shoots up all the computers in revenge for the betrayal from the base.

the base. That is exactly what I would do in my law office if an attorney I supervised sent me a constitutional complaint that did not contain a damages claim. I would strip to the waist. I'd tie a bandana around my head. Oh, God. I would get an M60 machine gun and I would blow up their laptop. That's exactly what I would do. Yeah. So I think what David's saying is some people found that to be odd, maybe questionable practice by the lawyers in that case. And they played the ultimate price, which is that their case got mooted out. They didn't get attorney's fees. Their rights never really got sort of vindicated in a traditional sense of the Supreme Court saying that states cannot have laws on the books

that infringe on Second Amendment rights that way. It was like a pretty catastrophic loss all the way around. And most people thought like, okay, they'll just take a different Second Amendment case. But as we talked about, they then didn't. Did not. So in that sense, David, a really small oversight made a big, Amendment case. But as we talked about, they then didn't. Did not. So in that sense, David, a really small oversight made a big, big difference. And constitutional law-wise, that will have a large rippling impact for a long time.

Yeah. Oh, I remember one time I came home. So I came home from Iraq. And so I had handed over control of the ADF Center for Academic Freedom when I deployed and I came back and inherited a number of cases that had been filed in my absence and I will never forget walking into the Fourth Circuit Court of Appeals trying to argue against mootness after a school voluntarily changed its policy and I had no damages claim. Okay. Anyway. All right. I told y'all trigger warning for me on this particular episode, but. Some things are meant to be shared like sunsets over the Pacific, picnics in Central Park, or Aeroplan points. Up to eight family

members can share Aeroplan points together. With the TD Aeroplan Visa Infinite card, earn up to 50,000 Aeroplan points. Aeroplan family sharing is a feature of the Aeroplan program. Conditions apply. Offer ends June 3rd, 2024. Visit tdaeroplan.com for details. Referends June 3rd, 2024. Visit tdairplan.com for details. Speaking of social media, David, the landscape does feel like it has changed over the last week. Yes.

Yes. More dramatically, almost. I would say like, so you have Twitter, you know, coming into the world circa 2009 in like a big way, Facebook in 2004. I don't think that we've had such a large shift in the social media atmospherics really since social media came on the scene. And I talked about this a little bit before, but I felt like initially their pitch, it was a marketing pitch, was, hey, we're the new town square. We've got a soapbox set up just for you, and you can say anything you want on that

soapbox. This is the new free speech zone. But it never was. It was always a Walmart you were walking into, and they always had every bit of the right of a private corporation to kick people out of their Walmart. It was never the public square. They just like painted the walls to look like they were trees and the ground to look like grass. And they did put a soapbox in, but you were always inside the Walmart. And what happened this week was that they said, okay, we know that for the last 15 years, we've been marketing ourselves as the public square soapbox. Okay. We were always a Walmart, our bad. This has gotten out of control. We now are kicking out all of these lunatics that we don't like because we

are a private corporation and we can do that. Some people thought they you know, you, some people thought they were entering a public park. They're walking into a gated community. It's another way of saying it. That's a better way of saying it. Um, and you know, one of the, it was a very interesting,

it was very interesting because when, when Twitter took down the president, there was an awful lot of people who expressed a huge amount of rage at Twitter. And then they began to get enraged when their follower counts began to drop by thousands in some cases. I think my follower count dropped by maybe 2,000. So they're enraged, you know, 10,000, 20,000, 30,000, 40,000. And they're purging conservatives.

Well, as time went by, it became apparent, number one, let's just be honest, and this is something that I believe I said in the Dispatch podcast, this sort of tertiary Dispatch podcast, well behind advisory opinions and the remnant. But the president had long enjoyed sort of a presidential privilege on the platform. that the president had long enjoyed sort of a presidential privilege on the platform. He had said things and done things on the platform that would have gotten people banned if they were not president of the United States. And so in many ways, what Twitter did is it removed Trump's presidential privilege

and kind of retroactively just banned him for all of the things. And also because of the live insurrection that was happening. Well, primarily because of the live insurrection that was happening. Well, primarily because of the live insurrection that was happening. Oh, that little thing. Yeah, I mean, I guess that happened.

That thing. So then people began to get really up, that the crackdown on conservatives is happening. Now, of course, they're all tweeting about the crackdown on conservatives on Twitter. So it wasn't that effective of a crackdown if the whole conservative movement is tweeting about it, but they're talking about these follower accounts.

Well, it turns out that what was Twitter doing? It turns out it was purging a lot of Q accounts, which is something that Facebook did a long time ago without that much controversy. So a lot of this kind of died down for a minute because here you had a president who was actually inciting an insurrection in the Capitol ago without that much controversy. So a lot of this kind of died down for a minute because here you had a president who was actually inciting an insurrection in the Capitol and a purge of Q accounts. And you turn to people who aren't super very online and they say,

Twitter is crushing us. Who'd they exclude? Well, all these Q people who believe that like pedophiles are eating kids. Oh, oh, okay. So when you say it out loud, it's like, well, of course you wouldn't want those people on a platform. And then, you know, they, they, Amazon web services drops the hammer on parlay or parlor, however you want to say it. And everyone's an, oh, now look, now look. You can't even start your own conservative app, or you're going to get crushed there too. Well, you've noticed a lot of that talk has died down.

Why has that talk died down? Well, part of it's because the new cycle moves on, and part of it is because the evidence has emerged as to what the heck was happening on Parlay, Parler, and it was bad, Sarah. And so Amazon files a responsive pleading. So Parler sues Amazon. And I read this in the Dispatch podcast, but it's very much worth reading again.

This was the opening, part of the opening paragraph of Amazon's response to Parler's case. This case is not about suppressing speech or stifling viewpoints. It is not about a conspiracy to restrain trade. Instead, this case is about Parler's... I'm going to choose one of these pronunciations. It's Parler. It's clearly Parler. Okay, Parler. It's clearly Parler. Okay, Parler. Instead, this case is about Parler's demonstrated unwillingness and inability

to remove from the servers of Amazon Web Service, so these are the servers that Amazon owns, content that threatens the public's safety. How? Such as by inciting and planning the rape, torture, and assassination of named public officials and private citizens. How widespread was this? Now, Amazon included examples of this that were grotesque, just grotesque threats.

Yes, although let me bump in on that point, which is, so they include, what, 20 examples or something? And they are grotesque. I can find those 20 examples on Snapchat, on Twitter, on Facebook. Those are, you know, finding 20 people saying the most outrageous and egregious and disgusting things possible. I can find 20 examples of that on any platform in the country right now. Right. But certainly Reddit.

I mean, and Amazon. I don't see these companies ending their agreement with those. But the problem is, so there's some distinctions here. So distinctions include, some of those are not actually on Amazon, right? Well, that's true.

In fact, Amazon pointed that out, that they said, hey, Parler has come after us for a double standard about Twitter. We don't host Twitter. So that might be a little bit of a... So that's why these lawsuits, the facts matter in lawsuits, right? And so if you're going to complain that AWS has a double standard, and then you point out another service that AWS does not host, guess who does not have the double standard? AWS. And, you know, whereas Twitter and Facebook attempt, or at least purport to attempt to exercise due diligence to take down explicit threats of violence, Parley, they just kind of didn't really believe that they did. Because they said, hey, we went to you weeks and weeks ago and said, you've got a problem here. This is before the insurrection. And Parley demonstrated not just an unwillingness,

but an inability to do anything about it. And to just give you a sense, you know, look, the Amazon folks posted a few examples here, which that's all they could do. They couldn't, you know, what are they going to do? Submit an exhibit with 26,000 backlogged threats of violence? But there was this really interesting post about Parley submit an exhibit with 26,000 backlogged threats of violence. But there was this really interesting post about Parley over a... Okay, wait. Timeout. Timeout.

I mean, not real timeout, fake timeout. How do you even get the possibility that it's pronounced Parley? Parley, the pirate version, is P-A-R-L-E-Y. But this is P-A-R-L-E-Y. But this is P-A-R-L-E-R. What am I missing here on your pronunciation? Parler is to speak in French. You think that they did this in French? Yes, oui.

Wow. Why would they name it that? Because it's a parlor room, you know, where you go in and chit chat with people isn't that a p-a-r-l-o-r oh then what's parlor um parlor at the parlor app i believe is a different there is a it's a there's a different parlor app yeah p-a-r-l-o-r huh okay well then i suppose both are uh you know parlez vous francais yeah parlez vous francais yeah continue continue see i wasn't crazy i still think it's parlor i just think they misspelled the room in the house. It's quite possible. But anyway, there was this really interesting data website that essentially trawled through Parler's posts.

And by the way, Parler is a very not secure website, by the way, if you've got your data on there. And what they found was just this unbelievable engagement around Civil War, Trump, Civil War 2021, a new Civil War, TikTok Civil War, American Civil War, Civil War II. I mean, these were like the dominant themes on Parler. And they just pulled out like, here's one popular post. And it had been viewed 181,000 times, reposted over 1,000 times, upvoted over 1,000

times, 319 comments attached to it, of which 10% explicitly call for the murder of George Soros. Cool. That's good. Yeah, so this was a large-scale problem. Now, does that mean that Amazon had to terminate with Parler?

Under the law, no. Does it mean that Amazon... So my position is this, Sarah, and I'll end this very long filibuster. If I'm an American citizen, free, exercising my own rights under the First

Amendment, and I'm working at Amazon Web Services, and I'm running Amazon Web Services, and I can say to myself, you know what? I don't want our investments, our talents, our code, our everything that we have poured into making this place a successful place to be used to host a website that is trying to start a civil war. And I think Amazon's completely within its rights to make that call.

And I think, honestly, it was the right call. It was the right call. So that's where I am on it. Here's where I think the argument will come down to in court. I think that Amazon has every opportunity to win this case if they can show one thing. So Parler's president or CEO says that President Trump had secured the Parler name Person X as of October of last year and that he had plans, especially once Twitter, he'd been taken off Twitter to move to Parler under Person X and that the CEO had told Amazon web services this, and that Amazon web services

took parlor off its servers only after finding out that president Trump was going to be on parlor as person X. Um, and that therefore it has nothing to do with a violation of their terms of service. It is about silencing president Trump To your point, David, they don't host Twitter. Let's see what else they do host because I think what Parler's best argument will be is that they were actually treated differently and that Amazon does not enforce their user agreement remotely equally.

Right. And that this was a pretext to silence Donald Trump who was going to move to Parler under Person X. I'm guessing with the army of attorneys that Amazon has, that Parler will have a very hard time meeting that burden. But I think that is the legal question. Well, and you know, it's going to turn on the user agreement. I mean, and you and I both know these user agreements are drafted in such a way that a refrigerator warranty

gives you a festival of rights compared to what you have in confronting a large tech company, if you want to use. And so, you know, for example, the user agreement says that they may suspend or terminate an account immediately if AWS determines that the end user's use of the service

poses a security risk to the service offerings or any third party. Yes, but the difference is, David, they have to show that they actually enforce that because otherwise they can't claim that, okay, Parler was in violation of our user agreement, therefore we kicked them off. If Parler can show that, in fact, there are other services that are using the Amazon servers that do the exact same thing, let's take Reddit, for example, if Amazon Web Services hosts Reddit, then the argument is they are not kicking Parler

off for a violation of their user services agreement. That is pretextual. But Parler has the burden there. Yes, yeah. And you're going to have to fight through a thicket of language, likely, that says that AWS is acting in its sole discretion. I would be shocked if we weren't talking about

an awful lot of discretion given to AWS and no discretion given to Parler. But, you know, we'll see. But one of the things that I do think is very interesting about this, the breach of contract question to me is far less interesting than, although I will be very interested how the case ultimately turns out, but the breach of contract question is far less interesting to me than the larger sort of power policy question.

And here's the thing that I think is fascinating about this. Okay, there's been a lot of talk about how Facebook and Twitter censor too much, okay? They censor too much. They're going to censor speech that that we like that's valuable okay that the gated community is too strict that's essentially the conservative argument sarah so what's happened is there have been two pretty decently sized services that have started to counter Facebook and Twitter, and that's Gab and Parler. What do you think the culture of Gab and Parler is like? Is it this festival of suppressed, virtuous conservatives

who just have been treated so unfairly by big tech? No. They're open sewers, Sarah no they're open sewers sarah like they're they're open sewers they're almost like living proof of the market wisdom of the twitter facebook moderation because aside from an awful lot of deeply ideological cranks and some just outright deranged people, there's just not that many people who want to expose themselves to those places. And that's one of the things I think you've got to deal with if you're going to talk about we need less censorship on these social media platforms. Is we now have had sort of these controlled experiments on what it's like when you create a social media platform with less censorship. And I have to rethink some of the things that I've argued about censorship on social media, because this controlled experiment has just yielded awfulness on these other platforms, just awfulness.

And so are we then turning to the, this is often like a conservative and often like a conservative Christian public and saying less censorship on social media is going to yield something better for us? Yikes, yikes. So I'm rethinking a lot of these things. I've long considered that what's absolutely true is that these private platforms have their own rights to create their own policies. And I have argued in the past that they should default more towards free speech. And when I see what some of these other sites are like that have taken that approach, I'm like, ooh, ooh, wow. So we've gotten a lot of questions around this.

I want to back up and talk a little bit about First Amendment law and public forums. So when we talk about your ability to speak in the public square, the First Amendment has sort of broken up into, you guessed it, some buckets. The first is the traditional public forum. That's your sidewalk. That's your public park, places where there's literally a soapbox. The government is very restricted in what it can do to you there. It can put time, place, manner restrictions. You can't be on a bullhorn at 2 a.m. on the sidewalk just because it's a public sidewalk. But in terms of what you're saying or who you are, absolutely no restrictions whatsoever. So there's then

limited public forums. In this case, think about a school. So the school lets the Boy Scouts use the school after classes are done for the day. They cannot limit what the Boy Scouts say, but they can limit the types of groups that they allow to come speak there, as long as it's content neutral. They can have the Boy Scouts come, but not the Democratic or Republican parties. But they can't have the Democratic Party and not the Republican Party. That make sense? Democratic Party and not the Republican Party. That makes sense. So we've gotten these questions because obviously, by the way, public school, that's government actor. The public sidewalk, that's a government actor. These platforms are not government actors. So we get these questions

are like, OK, yeah, but what if we treat them like utilities? We basically nationalize the social media platforms because they at this point have grown in such a way that makes them more like utilities. There is no real competition. Nobody else can get into the market. And so if you want to be heard, you have to be able to be on one of these social media platforms. you have to be able to be on one of these social media platforms. Okay, but do we really, I mean, first of all, the things that we do with utilities, we do not force them to be traditional public forums. They are never treated like public sidewalks that just have time, place, manner restrictions, obviously. And we don't even really treat them like limited

public forums. It's not just what groups are allowed, but then those groups can say anything that they want. There were equal time restrictions politically on the public utilities at one point, very different than what we're talking about here. So A, you'd have to decide, is that really wise to nationalize all social media platforms? And where does that cut off? Is Yelp then the same as Twitter? Because people can write on Yelp. I know it's different, but that's a pretty fine line. And then the fact that Parler existed, Reddit, isn't that competition for Twitter? Are you nationalizing all of them? Well, the funny thing is, so you're talking about, you've talked a little bit, you referred to the publicly owned airwaves. So when you listen to a

radio or you watch TV on broadcast, not on cable, on broadcast, they are broadcasting over airwaves that the government owns. And so one of the reasons why cable was so attractive to people when it jumped off was the government didn't own it, so it didn't control or regulate the content nearly as much as it controlled and regulated the content across the airwaves like the FCC. And so the other thing that's interesting to me about this is, Sarah, is that a lot of the nationalization argument is coming from people who purport

to be petrified of socialism. And so what they're saying is well, we need to nationalize some of the largest companies, private companies, in the world by market cap. Some of those valuable companies by market cap. Just take them.

Either through explicit nationalization. Not really through explicit nationalization, but essentially like a regulatory... No, through regulatory nationalization. Yeah, regulatory. So that they no longer have user agreements, basically. Their user agreements would be drafted by Congress in this case.

Exactly, exactly. So this is coming from the anti-socialism party to a large degree, which is just fascinating to me. And again, the limiting principle you have is interesting. So it's the answer that if I'm an entrepreneur in tech, I shouldn't get too successful because the instant I get too successful, then I'm essentially a wholly owned subsidiary. I'm a government run subsidiary. It just doesn't work because then like, what's the number of users that you have, the amount of revenue, when do you pop into that government regulation territory?

Or when are you just a fun little, um, you know, what's the app that people use for their neighborhoods? Like next door neighbors next door, right? Like, are we, which apps get taken and which don't next door is basically just Facebook, but smaller. Okay. And then if you think our elections are polarizing now, just wait until control of speech online

is subject to eat every four years or congressional changes every two. I mean. Nor do I think it would actually increase free speech. No. This would not. They would never be considered traditional public forums where you just get to say whatever you want with a bullhorn.

So that's all to say, more to come on this. If there are realistic 230 proposals in the next Congress, David and I will be on it. Until then, yeah, I mean, these lawsuits will be interesting to watch, but I think as David has suggested, the outcome is pretty foregone. And one other, one other thing real quick, and then we'll, we'll move to the speech and debate clause, which I cannot wait. I'm sure you're so excited to talk about.

A lot of people have said, said well aren't these company towns company town so back in the day there used to be um for lack of a there used to be company towns a company would own a town and if you worked for say a mine uh or you worked for the company you would live in the town the company had a post office. The company had a security service. The company essentially took over the role of the government in your life. It provided all of the functions of government. And so there's a line of cases that says essentially when a private corporation is taken over all of these functions of government, it will be treated as a government actor for constitutional purposes. And so some people have said, well, if all of these functions of government, it will be treated as a government actor for constitutional purposes. And so some people have said,

well, if all of our free speech is online, why aren't these now company towns? And this is an argument that's been advanced in court. PragerU tried it and got just absolutely blasted out of court for very good reason. Yeah, it might be different if Facebook were the only tech company

in the world. But the fact that Twitter exists, the fact that Snapchat exists, wildly undermines the company town metaphor. Oh, and if Facebook could arrest you, and if Facebook could turn the lights out in your house, and if Facebook could...

And your salary. And yeah, I mean, it's like, look, we know, I understand that the power of social media companies is subject to abuse and has been abused. I absolutely understand it. who are acting like it's a nine-alarm fire, relentlessly tweeting about the totalitarianism of Twitter, it's a little self-refuting, guys. It's a little self-refuting. Winston Smith did not spend all day on BigBrother.com decrying Big Brother.

That's not the story of 1984. And we'll take a quick break to hear from our sponsor today, Aura. Ready to win Mother's Day and cement your reputation as the best gift giver in the family? Give the moms in your life an Aura digital picture frame

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watching TV at the end of the night. I'll hop on the app and put up the photos from the day. It's really easy. Right now, Aura has a great deal for Mother's Day. Listeners can save on the perfect gift by visiting auraframes.com to get $30 off, plus free shipping on their best-selling frame. That's a-u-r-a-frames.com. Use code advisory at checkout to save. Terms and conditions apply. All right, speech and debate clause. Well, now, have you found your cares? Have you reached deep inside? The Constitution, Article 1, Section 6, Clause 1, says that members of both houses of Congress

shall, in all cases, except treason, felony, and breach of the peace, be privileged from arrest during their attendance at the session of their respective houses, and in going to and from the same. And for any speech or debate in either house, they shall not be questioned in any other place. Now, what's funny is most of the time we're only concentrating on that last part. Be for any speech or debate in either house, they shall not be questioned any other place. What that has been interpreted to mean quite broadly, and perhaps we will have reason to go into some detail on it another time, is that neither the executive nor judiciary can really go after a member of Congress as long as what they were doing was related to their official duties as a congressman.

The most famous case about this is William, is it Jeffords, Jeffries? The congressman who was definitely committing some crimes and the FBI raided his congressional office. He was actually able to throw out all of that evidence because the courts held that it was unconstitutional for the executive branch through the FBI to go to his congressional office with a valid search warrant and search it because he was privileged by the speech and debate clause that

was you know his official role as a congressman and that it would lead to, you know, the executive being able to intimidate and harass members of Congress as quab members of Congress. But that's not what we're talking about today, David. We're talking about that first part because members of Congress are very cranky, just a handful of them, very cranky that they have to walk through metal detectors before voting now. So Nancy Pelosi has now said that starting January 21st, if you bypass security in the Capitol, it's $5,000 for the first offense and $10,000 for the second offense, and the fines will be deducted from lawmakers' salary. She said, it is tragic that this step is necessary, but the Chamber of the People's House must and will be

safe. So this comes, of course, after several members berated Capitol Police officers earlier this week for asking them to go through metal detectors. Yes, these are the same members that were forced to hide under their desks and to put on gas masks because mobs were coming after them to kill them. And who stood between them and that mob were the same Capitol Police officers, literally the same people that they are berating for asking them to go through metal detectors. We don't need to get into why that is extra disgusting. No, wait, we kind of do. One member from Arkansas shouted at the Capitol Police, get back, don't touch me. It's just, it like infuriates me.

Not even the lack of respect for the law enforcement officers that are trying to protect you, but that it took less than a week since one of their own was killed protecting them. Yeah. I mean... Okay. But that's not the point.

We're going to talk about the legal side of this. I'm going to come out with a hot take. Sarah, are you ready for this? Yeah. There are some gigantic assholes in Congress. That is a hot take. Wow, David. All right.

I'm prepared to defend that position, but I'm just going to stay it. Not all of them. There's some really great people too, but there's some giant assholes in Congress. So some of these members of Congress have raised the idea that it is in fact unconstitutional for them to be forced to walk through a metal detector on their way to the floor. That implicates this first part of the speech and debate clause. In all cases, except treason, felony, and breach of the peace, these members will be privileged from arrest during their attendance at the session of their respective houses and in going to and from the same.

and going to and from the same. So, here's the problem. These are the rules of the house. Mm-hmm. And they're enforced by the law enforcement that only reports to the house. Mm-hmm. There is no executive branch involvement here that I'm aware of in any of this.

The metal detectors, the police asking you to go through the metal detectors, or Nancy Pelosi fining you for not going through the metal detectors. That being said, there is potentially some issue, David, if you are, let's say there's 30 seconds left of voting and they're telling you,

you have to go through the metal detector. And if you go through it, you're going to miss the vote. And if you don't, uh, you know, they're just not going to let you, they're going to detain you from voting. There's an interesting question there. And of course, if this were pretextual, it would absolutely, I think, come under this, even though it is within the House of Representatives and not the executive. This, however, is clearly not pretextual, given what happened last week. I do wonder, though, what a court would do with that. I'm not quite sure how the case could come up because it is like an intra, it's not even intra branch. It's not the Senate versus the House. It's like actually the

House. I guess you would sue Nancy Pelosi for violating the speech and debate clause. It's also interesting because the House constitutionally can set its own rules. Yes. And can expel membersel members yes so here'd be the interesting thing let's suppose you have like um what's her name lauren bobert yeah or marjorie taylor green who's just decided i'm gonna have a 357 magnum no matter what anybody says and she says speech and debate clause is going to prevent you from searching my purse.

And I'm going to walk in and then Nancy Pelosi says, okay, well, we didn't detain you because of speech and debate clause, but we're going to expel you because of the 357. Right.

And to be clear, having a 357 in the nation's capital for a variety of reasons, in the case of Lauren Boebert, I don't believe she has a license for that. That would be a felony. And it does say, except in cases of felony, you can't be arrested coming or going. But if it is a felony... Although I do think lawmakers can have weapons on Capitol grounds, but not outside of Capitol grounds in the district without the proper permits.

Interesting. Yeah. Yeah. Well, the point is for any members of Congress listening who are considering testing this, like I am all for that case. I would find it really interesting, but I do think you're probably going to lose. Yeah. And I mean, you know, in your district, you might be a hero and outside of your district, you're going to be a zero. And also, there's a way to refuse to go through the metal detectors without being a jerk to the people who are following the orders that they were given. The Capitol Police officer is not the one who decided you had to go through a metal detector. Don't be a jerk to him. Don't shove him. tell him to go you know f off like you know you know the uh the whole like hashtag um am i the asshole like yeah yes you are no question i yeah you've seen that skit and i

forget what it is where uh these two guys in ss uniforms slowly recognize that they're the baddies no i've not seen we got to put that in the show notes it is so funny it's like wait are we the baddies is this a skull on my uniform no i'm not comparing anybody to that. I'm just saying it reminded me of that really funny skit. So I'll find it. We'll put it in the show notes. You'll enjoy it. All right, David. It's lunchtime and I'm getting hangry.

It's almost lunchtime where I am in Tennessee. And I'm feeling hangry too. But I will say you piqued my interest in the speech and debate clause more than I thought in true advisory opinions fashion, in the best traditions of the Advisory Opinions Podcast.

Thank you, David. And so we will be back on Monday. And please, I haven't asked y'all to do this in a couple of weeks, but please rate us on Apple Podcasts. Also, we have a survey, as I said earlier in the podcast, for what are the best sponsors, the sponsors that you want to hear from. And so we're going to put that in the show notes as well.

But please rate us on Apple Podcasts. Please subscribe on Apple Podcasts. And we will see you on Monday. This episode is brought to you by Tresemme. Want silky smooth hair that's still full of natural movement? The Tresemme Keratin Smooth Weightless Collection is your simple solution. This new collection features a wide range of products from nourishing shampoo and conditioner to lightweight heat protectants and a silky smooth serum for a sleek finish. Wave goodbye to frizz and say hello to three days of smooth hair with a Tresemme Keratin Smooth Weightless Collection. Visit tresemme.com to learn more.