Advisory Opinions - Free Speech Re-Education Camp

Episode Date: March 28, 2023

Sarah and David divide and conquer in an especially busy episode. Following a bright announcement from host emeritus, we delve into... Trump’s possible defense against the Manhattan DA Congress moving forward on a TikTok ban, but is it constitutional? Is a bad joke to an admissions officer relevant to the Harvard discrimination case? Stanford Dean’s public letter A memo for young lawyers. Show Notes: -There's a problem with banning TikTok. It's called the First Amendment -Stanford Dean: Diversity and Free Speech Can Coexist at Stanford -The Secret Joke At The Heart Of The Harvard Affirmative-Action Case -A Plea for Free Speech in Boston -Judge Lee Rudofsky's Memo Learn more about your ad choices. Visit megaphone.fm/adchoices

You ready? I was born ready. another exciting episode of Advisory Opinions with Sarah Isger. And yeah, it's David French. All right, guys. I mean, and look, because some people missed that one episode, let me just explain. When David went to the New York Times, basically, he's allowed to keep doing this podcast as long as we don't call him a host of the podcast. So that's the joke. It's not me being particularly funny. It's literally we cannot call him a host of this podcast. So he is frequent guest for every episode, David French. Welcome back, David. Thank you.

And I'm glad it was good to explain that because somebody listened to our podcast for the first time during our Stanford Palooza and said, I get the impression you're frequently on this podcast. Yeah, yeah. So look, sorry, that was for longtime listeners. If you're new, we welcome you. We're thrilled to have you.

There's some inside jokes you want to get some notes on, gnaw dog, et cetera. But a new inside joke is the David French is only a frequent guest. Please, no one from the New York Times listen to this. Okay. a frequent guest. Please, no one from the New York Times listen to this. Okay. We're going to talk about the statute of limitations in New York. David Mann, he was doing some Westlaw last week. So we're going to dive into that a little bit. Does banning TikTok violate the First Amendment? The letter from the Stanford Law School Dean that has been making the rounds,

some actually new information in the Harvard affirmative action case that had been previously sealed that is depressing as all get out. And I have questions for David about drag shows. So we're going to do that. Oh boy, goody. I'm so glad to talk about that.

But we're going to end with some good news, David. Some really happy, like Ted Lasso style stuff from friend of the pod, Judge Lee Rudofsky in Arkansas. And all you young lawyers should stick around for that part because it's for you. It's not for us. We're old. All right, David, before we start though,

there's also, we're going to start with some very, very good news. You have a new family member. I do. I do. Ezra Austin Delosier was born. Not a dog. No. No. Nine-pound, three-ounce baby boy born about noon on Saturday, 11.59 a.m. on Saturday. Noon on Saturday, 11.59 a.m. on Saturday, mom and baby, my oldest daughter, Camille and Ezra, were doing so well that they were discharged

24 hours after the birth. Yeah, I was pretty annoyed. You sent me a picture on Saturday shortly after the birth and Camille, your daughter, looks like she had just gone for, I don't know, a brisk walk around the block. Deeply annoying. She's doing incredible. Like they came home yesterday and they were, Camille was just walking around the house. Like. Next you're going to be telling me Ezra's

sleeping through the night. You know what? Nevermind. I canceled this segment of the pod. Ezra, we love you. Welcome. He is not sleeping through the night. I can assure you of that. We'll check on tonight then. We'll see how that goes. He's adorable, David. Congrats.

Thank you. Thank you. He's awesome. So now there's two little babies in the household and we are going to be so torn up when they go off to law school. We are going to be so torn up when they go off to law school we are going to be ripped to shreds yeah they're heading off this fall you know these kids grow up fast i know i've been sleeping through the night and already they're one else all right that is awesome now less awesome last episode we had talked about the trump potential indictment in New York. I had my whole man for all seasons, the Nazis and Skokie, very on my high horse.

For those who don't think that this is a good legal case, but don't care, just are like, Trump kind of had it coming. That's where I have the beef. But we talked about the statute of limitations and that we talked about the possibility of equitable tolling because he was a sitting president and both of us had some issues with that possibility. But there is something that might be more concrete than equitable tolling in New York. So I talked about this in my column on Sunday morning. And so, you know, I was just really confused by the statute of limitations argument and sort of the confidence with which a lot of the, you know, a lot of folks were saying the prosecution should move forward.

And turns out there's a 1999 New York Court of Appeals case. It's really interesting, Sarah. And this 1999 case is called People versus Noble. And it involves a 1988 bombing of an automobile dealership. So the defendant in the case detonated an explosive device at an automobile dealership in Belmore, New York. The police investigated it. They didn't solve the crime until in the 1990s. And so he was indicted in 1998.

1998. So he was indicted in 1998, about 10 years after he allegedly detonated the explosive device. So how on earth does a five-year statute of limitations not protect him from prosecution for a 10-year-old crime? Well, the answer was that he had moved out of state. Now, he had moved out of state, but he was back in the state a lot because he had family there, parents there, children there. And so the question was, how do you interpret a statute that said that, that tolls the statute of limitation when the defendant is continuously outside the state. The phrase is continuously outside. So the way I would read something like that is if the person had left the state and never came back, that's continuously outside.

And when they're gone from the state and don't come back during the portion of their continuous absence, then the statute of limitation would not run. But if they're not continuously outside where they come in and out, in and out, as Trump has come in and out, in and out since he officially changed his residence from New York to Florida in 2019, you would think that the continuously outside statement would not apply. Well, this defendant was in and out of New York. He was in and out of New York so much, he was in New York, I believe, more than 100 days or so. But what the New York Court of Appeals held was that the law

meant that, quote, all periods of a day or more that a non-resident defendant is out of state should be totaled and toll the statute of limitations. So by that reading, when you're a non-resident defendant, anytime you're out of state, when you're out, for a day or more, the statute of limitations clock stops, and it only resumes ticking when you come back to New York. And every day you're back in New York, it ticks another day. And every day you leave New York, it stops ticking. And so Trump became officially not a New York resident in 2019 and has not been back all that much since 2019. And so under this New York Court of Appeals case, Sarah, it looks like the five-year statute of limitations likely won't apply. And depending on how they define resident, even the two-year statute of limitations, which

even as I was writing the column, I thought, no, clearly not because of the resident, you know, that he was a resident of New York technically until 2019. But there's an outside chance even the two-year statute of limitation may not apply. I still think it does, but there's an outside chance. So that case to me demonstrates why the prosecution might feel pretty confident that the statute of limitations has not lapsed yet. So one, I think that the two-year part actually is much closer call than you because of the language where it says out of state versus in state. We know the language of residency. And that's not the language they were using in the case.

So that's odd, nevertheless. So look, but this is insane when you think about it, especially for New York. So imagine two hedge fund bros, both work at the same hedge fund in New York City, but one lives in Connecticut as they are wont to do. And the other one lives in Manhattan. And, you know, now they all work from home because COVID or whatever.

Basically, one can't be charged with the same fraud. You know, they commit the crime together, right? One can't be charged with fraud because he lives in Manhattan and the other one can because he lives in Connecticut. What? It's wild. Even though you knew exactly where they were the whole time, their address is on record,

you know, with the corporate office of the hedge fund, you've known the whole time, you've been able to talk to them, interview them, etc. I'll just say, like, I don't love that. Set aside Trump, and you know how I feel about all that. But like, that to me has some interesting, almost whatever the criminal law equivalent of Dormer Commerce Clause problems is,

where you are discriminating against out-of-state residents. Yeah, it's a really, because I could imagine a tolling of the statute of limitations if someone's literally sort of been on the run. Yeah, you can't find them. You can't find them of been on the run. Yeah, you can't find them. You can't find them. Even though you can charge them, you can't find them. Totally get that.

And I think that's just to toll the statute of limitations when somebody's a literal fugitive. But if they're just chilling at home, zooming, or coming- At 1600 Pennsylvania Avenue, or in their McMansion in Bridgeport. Or coming home all the time like this guy who was visiting his kids pursuant to custody arrangements, visiting his parents.

Like this is not a hard guy to find, right? And you know what this smacks of, Sarah? You know the doctrine that you talked about? Bad man stays in jail. Yep. I'd be very interested if that hadn't been a bombing case. Yes, that was exactly what I was going to say. The AO hive mind in operation.

What if this wasn't somebody trying to blow up a car dealership and not caught for years? What if this is something much more mundane? Like, I don't know, falsifying records about hush money payments to a porn star. Much more mundane. But yeah, it's a really wild, interesting case. And yeah, so discovered that after, right, literally after we recorded the last show. Like an hour later you found

that case. Yeah. And then what did I say? I said, prep for emails. And you were right. And our tremendous listeners, many of whom practice law in New York, criminal law in New York, sent in some messages and said, hey, here's a case you might want to look at. Yes, absolutely. Thank you. You are correct. That is a case to look at and really interesting. Really interesting. Yeah, and you know, I say about the quasi-dormant commerce clause

discrimination against out-of-state residents, but I don't know that there will actually be a good legal argument to, you know, collaterally attack that statute or that case law. So I mention it because it annoys me, but not because I think there's a good legal case against it. Right. I mean, states can set statutes of limitations differently

and they can set the conditions for when they're told and not told differently. I mean, that's within their purview. So yeah, I don't think statute of limitations on the five-year statute of limitations is going to be an issue because of that case. On the two-year statute of limitations, if he just wanted to indict on the misdemeanor only, I think the statute of limitations is still expired

because he was a resident, a New York resident, even though he was typically in the White House, he was still a New York resident, technically. But again, that's not a slam dunk. That's not a slam dunk. So we'll see. All right. Next up is banning TikTok unconstitutional. So Congress is considering two bills. One is called the Data Act. That would enable the president to sanction foreign entities dealing in software that is subject to the jurisdiction of or influence of China, and that may be facilitating bad stuff by China. Bad stuff is, I think, the technical statutory term. Another bill is known as the Restrict Act.

It would grant the Secretary of Commerce new authority to basically mitigate national security risk related to communications technology that a foreign adversary has interest in, China listed among those. And David, the ACLU has come out and said, clear violation of the First Amendment. Curious what you thought.

Yeah. So I think, first, it's not crazy to say that this is a violation of the First Amendment. No, it certainly implicates the First Amendment. That, I think, is unquestionable. The larger question is really going to be, does it pass strict scrutiny anyway? Well, I think there's, let's look at it this way, Sarah. Let's put things into separate buckets, okay? Okay, you know I love a bucket.

We love our buckets. Here's bucket one. Bucket one is we're going to ban TikTok because we don't like TikTok's content. In that circumstance, I think you're losing that case. There is a case called Lamont versus Postmaster General. So this is a Cold War era case that is from 1965

that essentially says that you can even receive an invalidated federal law that barred Americans from receiving communist political propaganda from foreign countries, unless they specifically asked the postal service to deliver it. The court held that the law was an impermissible attempt to control the flow of ideas to the public. And for, and I'm And I'm inspired by this statement by a guest opinion piece in the Times called, There's a Problem with Banning TikTok. It's

called the First Amendment. And we can put this in the show notes. And it's by Jamil Jaffer, who's executive director of the Knight First Amendment Institute at Columbia. And essentially what he's saying is, look, TikTok as a Chinese company does not have First Amendment rights. But the American users of TikTok have First Amendment rights. And it's the American users of TikTok that are going to have those First Amendment rights violated. Now, so here is the interesting question is, if it's bucket one, where essentially Congress is saying,

you know, we don't want the Chinese in charge of the messaging at TikTok, and so therefore we're going to ban it and deprive the, yourive the 150 million American users of their own content that many of them are putting onto TikTok, then I think you've got a real First Amendment issue, very important First Amendment issue.

But here's bucket number two. Bucket number two is, what if you're not banning TikTok because of anything on TikTok at all, but you're telling TikTok, well, you need to divest from Chinese ownership because Chinese law allows Chinese authorities, communist party authorities to get all of the information about Americans that TikTok vacuums up. In other words, so TikTok, like social media companies everywhere, vacuums up a ton of information about its users, and it's that information about its users that it monetizes through ads, etc., to make it a

profitable business. So what if the ban has nothing to do with anything related to the content on TikTok, but has a lot to do with the legal arrangement that says private American user information is at the disposal of the Chinese Communist Party? I think there, Sarah, you could essentially place a condition on TikTok's current operation that is related to building an absolute firewall against

sending American information to China. And that would probably pass constitutional muster. But something that's just a flat ban and that is motivated by the content on TikTok, I think that fails under a First Amendment. That would fail under a First Amendment analysis. But I'm super interested in your thoughts. I want to give you a third bucket that is sort of not an issue here, but nevertheless interesting to me, which is it's not about the specific content on TikTok. And, you know, don't love the Chinese aspect,

but put that aside for a second. We have research showing that TikTok in particular is more addictive than other social media platforms and is causing specifically more mental health problems and anxiety among young people. Now, some of that actually exists in our literature. Some of it doesn't. I don't think there's anything saying TikTok is worse. But again, bear with me in this hypothetical. There's a lot on Instagram or there's some stuff on Instagram, yeah.

Exactly. But imagine that there's a little bit of research saying TikTok is worse. And so they moved to ban TikTok, not because of the content, but because of the medium. Yeah. Now, I think that would violate the First Amendment.

However, with a caveat, if you move to limit TikTok's access by age, I think you've got a stronger argument than if you're saying, I'm just going to ban TikTok entirely because the information flow is too much for children and adults to handle. I think you're going to have a big issue.

I should have actually put in the age restriction because that's what I meant is, you know, you have to be above the age of 18, let's say, to use TikTok because it's particularly addictive to young minds. Think of this like cigarettes or alcohol. Right. The problem from a First Amendment standpoint, because remember, cigarettes and alcohol don't have a First Amendment problem. Exactly. Is that young people do have First Amendment rights. Yeah. And so interestingly to me, bucket two, the national security bucket, and buckets three,

the First Amendment rights of people under the age of 16, let's say, I think with both on the First Amendment analysis, you end up in strict scrutiny land. And in your bucket one, you do too. It's just that it fails really quickly. So bucket one, you're in strict scrutiny, fatal in fact, you're done, Zs. You're done. And remember, with strict scrutiny,

we're looking for both a compelling government interest and least restrictive means. I think with your bucket too, on the national security issue, clearly a compelling government interest. And I want to spell out the hypothetical a little bit more, which is, it's not just that TikTok is gathering data on Americans,

because American companies are also gathering data on Americans. It's the ability to use that in then the information algorithmic sharing to Americans. 10,000 users who are most interested in extreme political videos, like conspiracy theory political videos and violent videos. Target those people with the following information. And it's something really bad, right? Like, you know, Joe Biden is trying to become part of the Illuminati. It will be the last US election, you know, whatever conspiracy theory stuff you want for the purpose of sowing chaos in American elections. That's what the data,

you know, capabilities are. Right. And that's what it can be used for. So I think the compelling government interest test is very easily met in bucket number two. I think the least restrictive means is as well, because I don't know how else you would, you know, your conditions, I think, are smart, David. But I think you could honestly just say, if the CCP, if you're not divested from a Chinese,

you know, state actor regime, then like we're done here. There's no other, there's no other means that could work. That is the least restrictive. And bucket number two on the age restriction issue, compelling government interest, I think, I think is met. And I think that's where we're going to have some diverging roads there is that it's not that compelling. Young people use social media all the time. And it's not like alcohol and drugs where they, you know, the argument at least would be like, you know, alcohol causes drunk driving or kids to have alcohol poisoning. I would say that you could point to suicide rates, for instance, on the compelling government interests. And then for the least restrictive means, the problem with that is enforcement more

than it is the least restrictive means. How do you enforce a 16-year-old age limit without creating greater problems? I am sympathetic to that. I get the sort of practical part of it. I just don't think it's a First Amendment problem. And I don't think it fits into the least restrictive means test that it's hard to do. You know, for instance, one way to do it is to ask people their ages before they get on TikTok, but they could lie, you know, yada, yada. We go from there. I actually think that on buckets two and three, you could probably ban TikTok under the right circumstances. Ban meaning have restrictions that the CCP has to be fully divested in bucket two or an age

restriction in bucket three. Yeah, I think bucket three, if you look at the First Amendment rights of young people, we already have a lot of legal restrictions on their ability to receive information at a younger age. I mean, heck,

broadcast television right now, it's government-owned airwaves where ABC, NBC, CBS have used the government-owned airwaves and they have limits on the content that's available when children are watching. They have limits on the content that's available even when children are not likely to watch. There's a reason why HBO has the kind of content

that NBC, CBS, ABC do not have. And one of the reasons is that there are decency restrictions on broadcast media that don't apply to cable media that are directly related to, you know, and in many ways directly inspired by the universal access that kids had to broadcast media. Now, they have the same access now to HBO that they had to broadcast media, but there is a different order

of a different level of state control over what children have access to and can see than adults. Back when the Communications Decency Act was passed, it had restrictions on adult content online in the absence of controls such as age verification. And that was struck down by the Supreme Court, not because kids had a right to receive adult content, they don't, but because the internet, the technological infrastructure of the internet was such that you couldn't restrict children

without also instituting a regime that excessively restricted adults. And that would be, in my mind, if you look at the Reno case, this is the ACLU-Reno case v. Reno case that struck down the age restrictions on the Communications Decency Act. If you look at that, it's pretty clear that that ruling was related to the technology of the time. If you have a way to effectively screen out kids from content kids don't have a right to see. And while preserving access from adults, I think that you've got a real,

you've got some real potential there for regulation. The question is going to be, is there justification to say this is content kids should not see? That's going to be the real question. Fun talk. All right. So yes, there's First Amendment problems. And no, they're not un-overcome-able. Right, exactly.

Write your laws carefully, and I think you can do it. Yeah, draft laws with extreme competence, which, you know, legislators do that all the time. All the time. I feel confident in their competence. 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

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That's a-u-r-a-frames.com. Use code ADVISORY at checkout to save. Terms and conditions apply. All right, moving on to Stanford. Dean Jenny Martinez put out a 10-page letter to the Stanford Law School community last week in response to the Kyle Duncan disruption event that was held earlier in the month. It's 10 pages, so I'm not going to go through the whole thing. But in short, she starts with the legal case against Heckler's veto, says explicitly that the events during the beginning of his speech

falls squarely within that the event was disrupted and it violated university policy. Two, she talks about academic freedom, free speech, DEI and the role of university administrators very clearly says that what the DEI dean did was unacceptable. And number three talks about next steps, where she says she's not going to punish the students in question, in part because of the actions of the administrators who were there, which is something we had flagged on AO. And instead, all students, meaning literally every law student, will have to go to a free speech, free education camp, let's call it. What did you think?

Was the letter good enough? What was missing? Was it love at first sight? Where are you on Stanford versus Yale in the race to the bottom of First Amendment protections? And again, I mean, First Amendment principles every time I say First Amendment, not the First Amendment, even with the Leonard Law in California. So what's super close to love at first sight? It was really close to love at first sight on this memo. students, which I was persuaded by some of the reasoning that it was actually going to be more difficult to determine the individual students to discipline than, you know, it might appear.

But the half day essentially training session for the First Amendment, I thought was fantastic. Like I prefer that to the discipline, actually. You know, if they're going to actually enforce rules going forward and do a half day of real, true First Amendment instruction and then clearly identify the First Amendment values of the institution or the free speech values of the institution. And then I thought this was interesting

was essentially don't look to us to be putting out a bunch of statements, advancing your values, which was really fascinating to me. Overall, Sarah, I thought it was one of the better letters in support of free speech and academic freedom I've seen in the elite academy in a long time. I mean, certainly it's getting close

to that Chicago standard. in a long time. I mean, certainly it's getting close to that Chicago standard. I agree with everything and maybe more agree with David Latt's point that like live in the real world, not the perfect world of your, you know, First Amendment, like fire wrote the letter world.

She is the Dean of Stanford Law School, sort of what more can you expect? In that sense, I just think it wildly exceeded everyone's expectations. Let me give you though what I thought was missing. Okay. One, you have the one free bite problem, right? Yes.

Like, you know, the university policy was clear. There are no students saying that they didn't think they violated that university policy. They just thought that they got to because this was so egregious, right? So in that sense, it'd be one thing if there were actually people saying that it was vague or it was so buried, they had no idea there even was a university policy. I haven't heard any students say that. So the one free bite problem is that, you know, you get to violate your fellow students' rights one time for free, and then we're going to actually enforce the policy. the administrator who then had the prepared remarks that at various points make it sound as if, not make it sound, explicitly say at one point, I'm glad you're doing what you're doing. Now, she doesn't say what that is, but certainly that could be interpreted as saying the university policy has been suspended because we agree that this is an exceptional circumstance or something to that effect. I don't know how you punish students when they are getting implicit and explicit permission to violate university policy from university

administrators. So there's the one free bite problem. Two, I very much understand from an HR perspective why she couldn't go into details about the personnel issues related both to the DEI administrator and to the other administrators related both to the DEI administrator and to the other administrators that were in the room, including the acting dean of students who sat there silently. And I'll tell you, I'm a little annoyed that the DEI dean has been getting all the heat from this because she spoke when the other people sat there silently, which arguably is worse on every grounds, frankly, including the acting dean of students.

Did they discuss ahead of time that the DEI dean was going to give her remarks and that she was going to sit there, you know, giving her a premature on that? Whatever it is, it ain't good. Now, again, you can't, as the dean of the law school, lay out your ongoing personnel stuff in a letter to the whole community, or you will get sued most of the time. So I get why that's not in there. I just want to like state for the record that I certainly hope there are other

things going on. It mentions, interestingly, that the DEI dean is on leave, but it doesn't say who asked for the leave or whether it's paid leave, frankly. Did the DEI dean say, for instance, I'm getting a lot of death threats. I'm going to take leave. And they were like, okay, that's fine with us. Take six weeks paid leave. That's very different than you undermined university policy and have put us in this terrible position. We are putting you on unpaid leave while we investigate this. Both of those fit with the language of the letter and they're pretty different.

In the meantime, of course, the DEI dean publishes her own op-ed in the Wall Street Journal, which I want to get to in a second. So asterisk that. Okay, the next to the third problem I have with the letter, and again, problems probably too strong a term. The third ongoing issue is maybe with the re-education camp and I'm calling it that tongue in cheek because I'm with you. It's great. And this is how Yale solved their problem is that they were having only, you know, DEI training to start out the school year.

And now they have DEI training and basically civility training on speech and sort of decorum. And that seems to have helped Yale's culture. So I'm all for this. I think it will help. I think it will help. However, while the First Amendment requires that Federalist Society students, First Amendment principles, university policy, the Leonard laws, requires that Federalist Society students be able to host a speaker and hear that speaker without it being disrupted, let's be clear that that is the minimum. Yeah. That is not, I think, a blossoming community of discourse just because a federal judge can come and speak without disruption. And I think her letter

actually does a wonderful job talking about, for instance, I want to read the part about doctors, David. Law students are entering a profession in which their job is to make arguments on behalf of clients whose very lives may depend on their professional skill. Just as doctors in training must learn to face suffering and death and respond in their professional role, lawyers in training must learn to confront injustice or views they don't agree with and respond as attorneys. I really liked that whole paragraph

because it wasn't about what the law requires. It was about what a culture at a law school should require. And I mentioned that again, it's in the letter. I'm thrilled. But a letter is just words. Now we need to see the culture at the law school actually change. And I want to hold her feet to the fire to make those cultural changes at the law school and change. And I want to hold her feet to the fire to make

those cultural changes at the law school and not just that minimum. FedSoc can now have speakers. Congrats. Yeah. I thought, you know, that was the point that we raised with David Latt. That was the point we raised with Judge Duncan. We've talked about ourselves in many occasions is these are individuals who are training to be a part of a profession where they're going to walk into a room with somebody who is diametrically opposed to them on some of the most hot button issues in modern life. And not only can they not shout them down, they have to grant them equal time, equal time to speak in front of a jury, in front of a judge. And I'm sorry, a law school experience that is distorted by the belief that you can drown out, shout down,

intimidate your opponents is not an education that's preparing you for the profession. And I wrote this in my Thursday newsletter in the Times that part of this, just if you give me a half a second for a riff here, a riff slash rant, Sarah, part of this is what happens when you have an ideological monoculture. When you have an ideological monoculture,

when people of like mind gather, they tend to become more extreme. This is called the law of group polarization. And the profession of law leans to the left of the general public. Elite law students lean to the left of the profession of law. And law professors in elite schools lean to the left of the student body. So this is a continually cascading leftward lean to the point where some of the numbers

are just out of control, especially at the upper echelons of the American legal profession, how much they're an ideological monoculture. And so unless you're intentionally, intentionally teaching in such a way to try to surface sort of the best arguments on the other side,

to provide people access to speakers from a different perspective, you're going to be fostering an enormous amount of groupthink. And that groupthink breeds intolerance and that intolerance breeds shout downs. And we'll just keep seeing this stuff until schools realize

they have to almost counter program their own faculty and student bodies sometimes to provide different points of view. And do you know what that counter-programming has been called for the last 40 years? The Federalist Society. The Federalist Society. So there was a law guy on Twitter

who had this hypothetical that he just really thought was going to challenge the whole world. What if, and he said, it actually wasn't a hypothetical so much as his suggestion to progressive students on campus. You should host speakers on campus that argue that the Federalist Society

shouldn't exist and see if the Stanford Law School is willing to protect that against hecklers and disruption. And all of us laughed. I was like, what do you think has been going on? Yes. Like, are you like, let's be clear. The Federalist Society was started in 1982. In I'm going to get this slightly wrong of when the American Constitution was started by Larry Tribe and others as an answer to the Federalist Society. What was it, David? The late 90s, early aughts? Yeah, something like that.

Yeah. And it was created to sort of do exactly this. This Federalist Society was becoming incredibly successful. So why not have a sister organization on the left? And it has totally failed. Why? Because it's called law school. Right. And so there's just a total misunderstanding of why the Federalist Society has been attractive to some law students. And it because it adds value. And you have to look at what that value add is if there is this monolithic culture perpetuated by monolithic beliefs by law school professors

so that you there's no way to hear the other side of an argument in class except that proposed by a 1l who is trying measly and meekly to defend, you know, something they read in the Scalia dissent one time. I think a lot of us are speaking from experience on that one. You know, that that's not good enough. And so the Federalist Society adds value in that sense, because they bring in the speakers that aren't actually hired by universities to teach there and whose policy positions, legal positions aren't represented in class. The left doesn't need that. And so those left-leaning organizations have never been adding a lot of value. If you think that there aren't more law school professors on any given campus who believe that the Federalist Society shouldn't exist,

then there are conservative faculty at that school. Right. I've got a bridge to sell you. Well, and also let's just be real about what the environment is like for speakers on campus. You do not lack for left-leaning speakers on campus. You and I have done a number of Federalist Society-sponsored live podcasts, for example. And when we walk into law schools, more often than not,

there's an array of events that are ready, that are going to be at the noon hour, of which we are one of them. And if you look at the other events, you're going to see that there might be some that are just purely professional, like so-and-so speaking about being a trial lawyer. But a lot of them are going to be definitely left-leaning speakers coming to address, you know, a left-leaning student body. And that's just the, that's why I just had to chuckle because it's not just the law professors are overwhelmingly on the left.

When I was in law school, Sarah, there was exactly two student organizations out of all of them that you would call right-leaning. The Federalist Society, which was very small at that time, and the Society for Law, Life, and Religion that I founded with two other people. Two other people. Now we grew to 20-ish by my third year,

but that's out of a 1500 person, 1400 person student body. So look, this sort of idea that, well, well, we need to get some left-leaning voices in the legal academy. I've got good news for you you already won you've got them and i mean and it just came like this incredulous like well i can't believe that the university would protect a progressive speaker's right to speak against hecklers from the federalist society i'm like they've never heckled one and by by the way, FedSoc students listening to this, don't.

Yeah. Don't do that. Yeah. For all the reasons that we just talked about, don't. But anyway, I just, that was very funny. Okay, last bit on this, which is the DEI dean then wrote her own Wall Street Journal op-ed, basically titling it, Is the Juice Worth the squeeze? I can't believe she's doubling down on

that language, but here we are. I'll read the paragraph in question. At one point during the event, I asked Judge Duncan, is the juice worth the squeeze? I was referring to the responsibility that comes with freedom of speech to consider not only the benefit of our words, but also the consequences. It isn't a rhetorical question. I believe that we would be better served by leaders who ask themselves, is the juice, what we are doing, worth the squeeze, the intended and unintended consequences and costs? I will certainly continue to ask this question myself.

Now, can I just say one thing? It is really interesting. She went into the Wall Street Journal to write this yes rather than say you know a less right-leaning and a less right-leaning audience and less right-leaning you know editorial page fascinating mean, walked straight in and she knew her target audience for this message, trying to justify herself to her critics. So some props for kind of walking into the lion's den, but wow. Let me read the last paragraph because I think I overall, I read it and was like, this didn't say anything. And this last paragraph kind of summarized that for me. Diversity, equity, and inclusion plans must have clear goals that lead to greater inclusion and belonging for all community members. How we strike a balance between free speech and diversity, equity, inclusion is worthy of serious, thoughtful, and civil discussion.

Free speech and diversity, equity, and inclusion are means to an end, and one that I think many people can actually agree on, to live in a country with liberty and justice for all its people. What does any of that mean, David? Can I translate? Yeah. It's worse than you think when you read it, because of the key language, strike a balance between free speech and diversity, equity, inclusion. Because what is underlying there is a belief in many parts of sort of the DEI left that free speech is in tension with DEI.

Whereas history would demonstrate is that free speech has facilitated American diversity, equity, and inclusion and that free speech has facilitated American diversity, equity, and inclusion, and that free speech is indispensable to diversity, equity, and inclusion in the best sense of those words. But there has developed in the academy a belief that somehow free speech is in tension with, is contradictory to, and therefore we have to strike a balance between our commitment to diversity

and our commitment to free speech. Look, guys, I'm not going to say it's a straight line, but if you go, how much diversity, equity, and inclusion was there in, I don't know, 1920 before the First Amendment was incorporated to the states versus now? And if you're going to go and you're going to look at some of the greatest civil rights leaders in American history, you're going to see a lot of dedication to free speech.

In my view, the greatest single argument for free speech ever mounted in the history of the United States of America was mounted by one Frederick Douglass in 1860 in the city of Boston. I got to put it in the show notes. It's just a glorious American document. And if I was providing the curriculum for American history education, you better believe that letter or that speech from Frederick Douglass is going in there. So one of the things that I've just been on a mission to try to explain to people is that free speech is not in tension

with diversity and racial inclusion in the United States of America. It's just not. It's just not. It's just not. And the fact that some people say terrible things does not mean that the concept of free speech as a value, as an independent constitutional value, is in tension with a commitment to diversity.

Yeah, I... So interestingly, David Ladd had a little nugget of reporting that this op-ed was not run by the school before it ran. And he was saying, proof that Jenny Martinez actually means that she's going to foster a diverse community of views. And I'm like, or proof that this person doesn't think

they'll be working there much longer. Yeah. You can't have someone in the administration who, as you said, David, thinks these are intention or is going to, as she said, continue to ask whether on every issue of the day and stake out ground in front of the law students. And so that's exactly what the dean here did. She said, I side with these students and not with these students and against this speaker. She's saying she's going to continue doing that. So I don't understand how that is going to work with the Jenny Martinez letter. Congrats, Jenny Martinez.

I think everyone loves it and everyone hates it. So I think that's usually a sign of a really good letter. Next up, David, there was a piece in the New Yorker by a Harvard law professor, Ginny Suckerson, who, by the way, if you ever run across her name or anything she's written, it's worth it. She is bright and thoughtful and not a group thinker in any way of that term. You'll note, by the way,

in that Rahimi domestic violence gun case that Judge Ho reposted, he cites a Ginny Suck piece as well, which is pretty cool. Anyway, she has this piece at the New Yorker called The Secret Joke at the Heart of the Harvard Affirmative Action Case. And there's really two parts to this piece. One is the content of these documents, et cetera, that were sealed and that the public hadn't been able to see through the course of the Harvard Affirmative Action Trial, the one that's now pending at the Supreme Court. But another equally fascinating part of this is the fact that any of this stuff was sealed from the public during the Harvard Affirmative Action Trial. So I don't know, do you want to start with the ceiling or with the content? Let's start with the content because it makes the ceiling so much more interesting. Yeah. All right. So there's this, basically,

the head of admissions is talking to someone from the Office of Civil Rights at the Department of Education. The federal regulator has retired. He retired in 2014. This conversation is going on in 2012. And the DOE guy sends a parody email to the head of Harvard admissions, making fun of the Harvard admissions office for discriminating against Asian students. And he basically has stolen the notepad from another Harvard admissions person so that he can write it on her, you know, it like has her name on it. Like it'll say Harvard admissions memo of whomever whomever and the memo and now i'm reading from this article the memo denigrates quote jose who was the sole support of his family of 14 since his father a filipino farm worker got run over by a tractor it can't be that difficult

on his part-time job as a senior cancer researcher. While he was California's class AAA player of the year, with an offer from the Rams, we just don't need 132-pound defensive linemen. I have to discount the Nobel Prize he received as well. After all, they gave one to Martin Luther King too. No doubt just another example of giving preference to minorities. The memo then dismisses the fictional applicant as just another AACJ-er, which is Harvard admissions shorthand for an Asian American applicant who intends to study biology and become a doctor.

The joke here is, this is an incredibly impressive kid. And then every single thing he does, they discount and find a way to say that it's not impressive because he's Asian. That's the joke. Ha ha ha. Oh boy.

And the joke on the rest of us is that the judge seals this. It is still actually not, the judge has not made it public. She got her hands on this separately from her process of trying to get it unsealed in the court documents, basically because she said it wasn't relevant to discrimination by Harvard admissions officers. So not only not relevant, but sealed. Sealed, that's right.

It wasn't just, yeah. There's a lot of evidence that doesn't, that a judge deems not worthy of admission into the case because of all of the various reasons why you objected, hearsay, et cetera, et cetera, more prejudicial than probative, et cetera. But then to affirmatively seal it, keeping it out of the public eye is something else entirely.

So I question that it's not admissible, Sarah. I'm really curious as to why it's not admissible, because it seems to be pretty probative of the notion that discrimination against outstanding Asian American candidates was so prevalent that it was a subject of a joke with a federal regulator. At the Office of Civil Rights, by the way. So let's just like, yeah, that's upsetting, but okay. That's the chef's kiss part of it all. And so 2012 Office of Civil Rights during the Obama administration thinks that it's a joke. Yeah. That they're discriminating against Asians.

Cool, cool. And so well known that you don't have to explain the joke to anybody, right? And so that that's not A, admissible, blows my mind. And then it was B, sealed, blows my mind as well. And, you know, look, you know, on this podcast, we very much give the benefit of the doubt to judges. We do not like to get into this assigning motives nonsense and all of that stuff. Look, judges speak through their reasoning.

And we still believe that that is the best way to discern a judge's motivation is their stated reasoning. This is stretching my benefit of the doubt. Well, let me stretch it more. Okay. Because this actually was in the record. So Harvard used an SAT score cutoff of 1310 for white students, 1350 for Asian American females, and 1380 for Asian American males.

If you lived in sparse country, meaning underrepresented States or areas of the country. As this piece notes, there were audible gasps in the courtroom when this evidence was revealed at trial, when asked on the stand, why a white boy who scored 1310 would receive a recruitment letter while his Asian American male classmate who scored 1370 would not a recruitment letter while his Asian American male classmate

who scored 1370 would not. The head of admissions said, among other things, that, quote, there are people who, let's say, for example, have only lived in the sparse country state for a year or two. And by contrast, there are people who have lived there

for their entire lives under very different settings. I'm sorry. Is one of those obviously... What? Are you serious? You're discriminating. You just assume all Asian people are recent immigrants?

What? I mean, and isn't that actually something you can discern from an application? Let's suppose you actually want people from, quote, sparse country, which, by the way, that phrase, sparse country. I know. That's already insulting. But yeah, it's already insulting. Separately insulting. Yes. So let's say you want somebody who grew that phrase sparse country. I know that's already insulting, but separately insulting. Yes.

So let's say you want somebody who grew up in sparse country. Well, you know what? You can probably determine that or at least ask that in an interview if someone grew up in sparse country, as opposed to saying, you know, I'm just going to presume

that an Asian person from rural Oklahoma just got there six months ago or whatever, a year or two ago. Yeah, I mean, you cannot in any way, shape or form presume that. And this is something that I keep going back to when I'm talking to friends of mine who are very upset about the Harvard case

is you just bring up a lot of this evidence and you say, is that okay? Well, no, that's not okay. What about this? Is this okay? Well, that's obviously not okay. You know, ascribing personality characteristics to people on the basis of race, for example,

that's not okay. But there's a way to do race-based affirmative action that isn't like this. Okay, maybe. Really? Really? Is there? Is there? Or is this inherently one of the problems of race-based affirmative action is that unless you're tying it to specific past injustice, which by the way, this race-based affirmative action is not tied to specific past injustice. This is diversity-based. The compelling governmental interest here isn't remedying past injustice.

It's diversity. When you start to make decisions based on race stereotyping, this is where we end up. This is where you end up. And it's really, really ugly to see. So just to follow this through then, the evidence itself of the joke was not permissible at trial because she thought it was unrelated to any evidence of discrimination by Harvard University admissions officers. As you said, David, that's questionable right up front of like, really? You think it's unrelated that they're having this back and forth email?

Now, in fairness, the admissions officer in question was having lunch with the guy. And so his email back said, basically, oh, I didn't know so-and-so had such a sense of humor, referring to the person whose name is on the top of the memo pad. And he's like, no, no, no, that's the joke. I stole her memo pad. And he's like, oh, we'll talk about it at lunch. So there's nothing in the emails from the admission side that is a red flag,

except I didn't know she had such a sense of humor certainly implies that he got the joke. I don't think that'd be a very funny joke if it like didn't ring true, right? Jokes that are the opposite, whatever. So A, there's the, it's unrelated to any evidence of discrimination so we can't show it at trial but then the ceiling is actually because she thought that the joke was so you know explosive it would affect how the public saw the facts you think

yeah so i like this quote because i think it explains it well from an attorney quote. Familiar with the case is how she sources this person. I love that, yep. I think we can make some guesses there. Judge Burroughs mistakenly conflated admissibility under the rules with her own decision as the fact finder

that this evidence would have no weight with her. Because remember, this wasn't a jury trial. It was her. So basically saying, I'm not going to weigh this evidence, so we won't include it at trial. And then, because it would have no weight with her, it would be sealed to prevent embarrassment to Harvard witnesses. Imagine, David, just slightly different facts, right?

Yes. Imagine a company being accused of discriminating against its black employees and that we're sealing evidence of potential discrimination because we don't want to embarrass that company for their blatant racial discrimination. Well, it's so bad. Think about it like this.

Imagine a company is discriminating against its black employees. The discrimination is so obvious that the federal civil rights investigator who's looking into the company writes a memo joking about the discrimination. And then a judge says, nah. Irrelevant.

Irrelevant. Yeah, not just that it's on the whole, it doesn't lean this way. You know, it doesn't push me over the edge. It is so irrelevant. We won't even have it at trial. Right. It's a remarkable revelation. It's a remarkable revelation. And good on Jeannie Sook Gerson. Like Jeannie Sook, Professor Gerson is a Harvard employee, by the way. And she sued to have this all unsealed lost this part of the lawsuit the

judge referred to her as greedy for asking for it which is outraging as well and then she got it from another source that's how we have this but you know what i'm very down on harvard for the way it has treated Asian American applicants. But bravo to Harvard's view of academic freedom. Yes, totally. Absolutely, yes. I can think of a lot of institutions that would absolutely torch a professor who did something like this. She's a pretty famous professor there.

She has a little bit more than just academic freedom protecting her and tenure. True enough, true enough, but still. You know, it's worth noting that because this wasn't part of the trial record, by keeping it out of the trial itself, forget sealing it, it is not part of the record that the Supreme Court justices can consider,

which makes the timing of this New Yorker piece also noteworthy for this pod. Intriguing. Yes. And by, I mean, to your point about motives, David, everyone knew this case was going to the Supreme Court when the second it was filed. The trial was in that sense, you know,

a foregone conclusion, but it was very important what facts were allowed into evidence because the appellate levels can only look at the record that the fact finder considered yeah um and so in that sense when you it's not i don't know maybe this does fall into the questioning motives when you're looking at so much of this that was sealed, you have to consider how important the record was going to be in this case for the appellate side. Mm-hmm. Yeah.

And that makes me angry as well. Whee! So when you're angry, you say, we. Yeah. You might need to think of a more intimidating word to come out of your mouth when you get really angry. All right, David, I want to table the discussion about drag shows at Texas universities.

We'll come back to it. We have a ton of Supreme Court stuff to get to on Wednesday, including the Jack Daniels dog poop case and another episode of things Lisa Black can say to Supreme Court justices that you can't. So we'll pick up there on Wednesday. But I promised you, young lawyers, that it was going to be worth your time to continue listening to this pod because we are going to end with a memo that came from friend of the pod, Judge Lee Rudofsky, district judge in Arkansas. We are going to end with a memo from friend of the pod, Judge Lee Rudofsky from the Eastern District of Arkansas,

order on amicus briefs. It's only a page and a half. We'll put it in the show notes because I want all the young lawyers to see this. And David, it is just the feel good memo of the year, to see this. And David, it is just the feel-good memo of the year, of the century, perhaps, in law. So he starts out, when I was practicing law, I often wondered why amicus briefs were generally not filed at the district court level. It occurred to me back then that such briefs could have considerably more impact at the district court level than they have at the circuit court level, or even at the Supreme Court. Since taking the bench, my views on the desirability of amicus briefs at the district court level have only grown stronger. While the majority of cases on a district court's docket

don't warrant amicus briefing, there are a healthy number of cases each year that do. And he goes through some examples. And he says, I recognize that amicus briefing is a costly and time-consuming endeavor. However, it is also a great way for more junior attorneys at law firms, nonprofits, corporations, and government entities to gain valuable experience, make a good reputation for themselves, and get some oral argument time.

Accordingly, he is calling for more amicus briefs into his court, says, in addition to making it known that I invite and am grateful for amicus briefs into his court, says, in addition to making it known that I invite and am grateful for amicus briefs in my cases, I wish to extend the following notice. Anyone who is the principal drafter of an amicus brief on either a dispositive motion or a motion for preliminary relief

in one of my cases will be guaranteed at least 10 minutes of oral argument time so long as that person has been a lawyer for fewer than seven years. The parties in the case may not in any way fund the amicus brief or the drafter's attendance at oral argument. I love that memo so much. Like, that is fantastic. Because think about what it does for a young lawyer. Number one, it gives them an opportunity to write on an issue of real importance. And two, it gives them an opportunity to argue on a matter of real importance, which when you're a young lawyer, unless you get really

lucky. And I got very fortunate because I had pro bono cases that the firm allowed me to take that were interesting and consequential. And I was able to argue them. But a lot of what you argue when you're a young lawyer are discovery motions that are a footnote to a footnote to a footnote to the case. And they're worth doing just to get that face time in front of the judge. But I'm sorry, they're just something different about arguing on consequential substantive issues. And I think that's fantastic. I love it. I love the invitation to the amicus briefs because I think it says something about the judge

that he wants to hear from more views. I love that he wants to help train young lawyers. There's a mentoring aspect here. There's a more views, the better aspect. I mean, what's not to love about that? I also like the younger than seven years. I'd love to hear more about the debate that happened in chambers between six years and eight years, nine years, et cetera. I'm assuming that seven years was picked because it is under the threshold of any partnership track at any major law firm.

So you want to make sure that you're not getting some law firm that just makes partners young. But as you said, David, I mean, this is good because even at those times where you're allowed to be the primary drafter on something to a judge, your boss wants oral argument time too and will bigfoot you to get those 10 minutes. And basically, Rodofsky's like, no, no, I want the person who actually drafted the brief. Yeah, or the client. Like I have been in situations where I've seen my boss when I was a younger associate would say, I think David would be great to argue this. And the client was like-

Yes, you're right. But- We're paying for you. We're paying for you. We want you as the headliner, man. You know? Yeah, no, you're exactly right. I shouldn't be blaming all these partners.

A lot of the time, they would love nothing more than to not go to the Eastern District of Arkansas. But the client demands it. And here's an opportunity where otherwise you will not get your 10 minutes. Exactly. Well, you might,

but not under this memo, at least. So congrats, Judge Rudofsky. This is exactly the type of person I know you to be through and through. And I am proud to call you friend and friend of the pod. Yes, that is spectacular. Thank you, Judge. Good feel good story to end on after we had a little bit of outrage.

Outrage meriting only one we though. I don't know. I think it's only meriting one we because the case is before the Supreme Court. I mean, when we talk about the Thomas Jefferson High School discrimination and what's going on in Fairfax County. By the way, David, the middle school near us,

down the street from us, put out a memo. We're in Fairfax County saying that they were going to offer college prep classes for eighth graders. As long as you weren't Asian or white, Fairfax County saying that they were going to offer college prep classes for eighth graders. As long as you weren't Asian or white. What?

I mean, do lawyers, we're in like the lawyers per capita, like head of the world right now. And that's what the memo said. It said, you know, there was a socioeconomic cutoff, first in your family to go to college you could join, or if you're Black or Hispanic, the end. So listeners couldn't see this, but my hands went over my face. It was just like an email that went out to parents that clearly, again, the number of lawyers who received this email who were like, oh my God, are you serious? That's not even trying to not violate the law. Oh my goodness. Unbelievable. I mean, just these are the same middle schools that are feeding into Thomas Jefferson High School and the same school district that spent $500,000, et cetera, on DEI consultants. that spent $500,000, et cetera, on DEI consultants and that now has hired, you know,

one of the most white shoe law firms in the country to defend them against this lawsuit coming from the state of Virginia. I'm just saying, I don't think that memo is going to help their case in terms of motives. No. Oh, man. And we're also talking about

one of the most scrutinized school districts just in general in America. Probably because of the lawyers per capita, but nevertheless. And the political, you know, the congressional staffers and members of Congress and all of that. So even though it might be super, super blue,

you got a lot of potent red in that mix as well. And then a lot of blue folks who don't love this either. So yeah. So anyway, that type stuff gets more wheeze from me because it's not, we're so far away from it being resolved. And in the meantime, these students are getting hurt, right? Like just imagine being a student who then knows that they don't get to go to the college prep course because of their race. Bad, weird, that better be reversed pronto. I'm sure it already has, like I'm sure within moments, but anyway, it's been making some news. So that gets more wheeze from me. And then I just, I reread the Rudofsky memo. My blood pressure calms down

and all is right with the world again because people like him are on the bench and it gives me hope and joy. Amen to that. And with that, David, we'll have Supreme Cortapalooza. Lots of interesting cases coming up this week for Oral Argument.

On Wednesday, we had a CERT grant. We had some dissents from denial of cert that were a little spicy. And we'll do all that next time.