Advisory Opinions - Guns, Avenatti, and Bathrooms

Episode Date: July 15, 2021

It’s an (almost) Supreme Court-free podcast episode today. First, David talks about a ruling from the 4th Circuit striking down federal prohibitions on adults under 21 purchasing firearms, and Sarah gives her thoughts on whether the decision will stand. Then, our hosts dive into the latest in the Michael Avenatti saga, a ruling from a federal judge sentencing him to two and half years in prison for extortion. Finally, Sarah and David chat about a new Tennessee law requiring businesses to notify their customers about their transgender bathroom access policies. Show Notes: -Hirschfeld v. Bureau of Alcohol -Michael Avenatti sentenced to prison for 30 months -Tennessee bathroom law Learn more about your ad choices. Visit megaphone.fm/adchoices

Welcome to the Advisory Opinions Podcast. This is David French with Sarah Isger. And if it sounds a little odd, we're both on the road in undisclosed locations. Me still somewhere in Northern California. I was at Big Sur yesterday. Sarah, have you ever been to Big Sur? I have been to Big Sur. It's beautiful.

It is amazing. Like it's's yeah, it's it's gorgeous. Anyway, my my adoration and affection for Northern California geography and climate continues unabated. But that's not our topic. We're going to we've got a few interesting things to talk about. We're going to start with a big Fourth Circuit case striking down federal prohibitions against licensed dealers selling handguns to individuals under 21, to adults under 21, so 18, 19, and 20-year-olds. It's an interesting case. It's a long case. It's, I think, a 141-page opinion. I don't know why it is that the Second Amendment cases seem to draw these really long opinions. It almost seemed to include a complete history of colonial America, but they really do. So we're going to talk about that. We're going to talk about the Avenatti prosecution.

Sarah has thoughts. We're going to talk about a Tennessee case involving mandatory posting of a particular kind of signage to alert customers if the bathroom is unisex and it's a compelled speech case, citing, drum roll please, Sarah, one of my cases from the early 20-teens. So I think when Twitter finds that out, I'll be in real trouble. And then if we've got time, we're going to deal with a little bit of presidential coup plotting scenarios. And we're going to definitely end up with a question to Sarah about the Olympics. So it's a lot. It's a lot. Fourth Circuit strikes down prohibitions. Now, it's not immediate. It doesn't go immediately into effect.

It's not the case that if you're 18 enlisting, you can go walk in and get a handgun right now. But Fourth Circuit strikes down federal prohibitions on 18-year-olds or adults before the age of 21 from purchasing a handgun or handgun ammunition. I have some thoughts about this case, both related to the merits, but also sort of related to some larger background issues. But before I share thoughts, Sarah, what were yours? So, first of all, the facts of the case are perfect. This is a true, thoughtfully set up case. a true thoughtfully set up case. The facts are an 18 year old woman whose abusive boyfriend has walked through protective orders, illegally owns a handgun, and she's an equestrian trainer, often in rural areas, you know, by herself. She seeks to buy a handgun for her protection

against her abusive boyfriend, who is not showing up in court and to protect herself when she's out in some of these rural areas but she cannot buy from a federally licensed handgun dealer because of this law that's that's pretty sympathetic yep it is indeed. But I, I think that the fourth circuit decision might be right. Although I actually think that a similar law could get through any level of scrutiny. And it's interesting,

the fourth circuit, you know, there, the Supreme court has not decided yet which level of scrutiny applies to Second Amendment rights, and I'm sure we'll get into that. But, you know, this case that they're going to have in the fall could deal with that a little, perhaps. And so I'm curious to talk to you, using this framework of, you know, 18, 19 and 20 year olds buying handguns, could a restriction on age pass strict scrutiny?

You know, that's a really good question. And I think, no, I think no, um, strict scrutiny. Now let's, now that would, that's, that's, that's a tough level of review. As advisory opinions listeners know, that's the strictest level of review. It's not typically the level of review applied in the Second Amendment context. Amendment rights? They said yes. They also added a little extra analysis as to whether this was the kind of longstanding prohibition that existed by the time of Heller, that Heller explicitly chose not to disturb, and they said no to that. And then they asked, you know, if it substantially burdens the review, then they try to figure out a standard of review appropriate to the burden. In this case, they were talking a lot about an intermediate scrutiny, but I think this is a case where strict scrutiny may apply, and I don't think it passes, to be honest, Sarah, I think there was some compelling evidence presented about the tendency of 18 to 20 year olds to commit crimes at higher rates to individuals who are older than 21. And I think that that's.

I agree that that that would not pass strict scrutiny. Right. So. But. that that would not pass strict scrutiny. Right. So, but. But, okay. So I'm guessing you're going to disagree with me.

So tell me why. So, I mean, this is like the deep tracks of Sarah, but I worked in a neuroscience lab after my clerkship on criminal justice issues and recidivism, clerkship on criminal justice issues and recidivism, using fMRI machines to, you know, think through some of our trickier criminal justice reform issues. And so when I first saw this opinion, I immediately thought, oh man, they're not going to justify this the right way. They're going to do exactly what David just said, which is 18-year-olds are more likely to commit crimes with guns or something like that. But we know that that sort of thing doesn't pass strict scrutiny because it's too generalized.

It's not narrowly tailored enough. Does Natalia, is she more likely to commit crime? No, just like 18-year-olds as a general matter. And strict scrutiny has to be a compelling government interest, in this case, lowering crime, fine, but narrowly tailored to achieve that interest. Well, clearly that would be both over-inclusive and under-inclusive if you're just looking at what age groups commit crime. Like, okay, why age groups? Why not socioeconomic groups? Why not,

you know, all these other things that would also help with that compelling government interest to reduce gun crimes. However, David, what we do know is that no 18-year-olds have fully developed frontal lobes. And remember, your frontal lobes are what help with impulse control, something that's pretty important if you're dealing with a gun. Now, the vast, vast majority of teenagers, well, young people will not have their frontal lobes fully developed until the age of 25. But I think you could have in Congress, in any state, have a really good scientific study that says that, yes, the average person will not have their frontal lobes developed by 25. However, none will be fully developed by 21 and are compelling governmental interest to prevent unnecessary gun crimes caused by,

you know, emotion, impulse control, and all of that, then yes, we want at least the opportunity of fully developed frontal lobes that help with impulse control. And therefore, you know, based on this study and this study and this study, we're picking 21. That's not what they did here. I'm not surprised that the fourth circuit struck it down, but, and certainly I think that could pass intermediate review. I think it's a close call on strict scrutiny. I don't know that that even that would be narrowly tailored enough, because as I said, even that is still somewhat over and under inclusive, but I don't know, over and under inclusive. But I don't know, David, like I think that when you're dealing with guns,

asking someone's brain to be fully developed for decision making isn't crazy. Yeah. You know, I think that when you're talking about the impulse control, for example, that's perhaps evidence of the lack of impulse control is the higher rate of gun crimes at younger ages. Um, yeah, that's part of the evidence for it. Uh, it, it would, you know, once again, I think that, you know, one of the, the interesting argument that was made by the, the, um, by the majority was that basically if you look through history, that there was not, I mean, stretching through the vast bulk of American history, this ban on handgun possession or gun possession more broadly by younger people, these things just broadly didn't exist. It was, in fact, you know, many states said, if you're 18,

you're going to kind of have to be in the militia and bring your own arms. And so that historically speaking, that this was a, you know, that this was a, that this, that there was no historical basis for this kind of restriction. And you're right, There was no historical basis for this kind of restriction. And you're right. The state then just goes straight to the higher rate of gun crime, which, you know, I'm I'm less dismissive of that than maybe you are, because, yeah, of course, the plaintiff was somebody who, you know, there were somebody in danger. And would we want to deny them the right to defend themselves from,

say, a peer who might illegally obtain a gun? So I was maybe a little bit less dismissive. But again, you're talking about a generalized application of a, you know, you're talking about a general prohibition based on statistical increases that still leave the vast, vast, vast, vast, vast majority of 18, 19 and 20 year olds as people who do not commit gun crimes. So you're denying to every single person in that vast majority. You know, the question that I have would be, apart from your point, which I hadn't really thought about that much, is if you break down and you look at the teenagers who have committed gun crimes, in what circumstances and what percentages of those gun crimes are lawful possession. They committed a gun crime when they were in lawful possession of a gun. And that's something that I would be very interested in diving into. Because if the answer is that, look, 18 to 20 year olds just commit more crime broadly, and the overwhelming majority, as is typically the case of gun criminals, are people who are not permissible possessors, they're not lawful possessors of the firearm, then once again, you've got this incredibly broad prohibition that isn't going to address

the problem because the problem isn't legal possessors killing or shooting people. That's not the problem, which is so often the case in gun crimes. So from a philosophical standpoint, I think that in general, we have been infantilizing our young people in this country more and more and more and longer and longer and longer until like you're 28 before anyone thinks that you can feed yourself or should be expected to. True. But I will tell you, the biggest argument against my position, that perhaps you could find a different way, a different justification for having an age limit on gun ownership,

age limit on gun ownership is driving. The vast majority of states allow people to drive well before 18. You want to talk about something where you want impulse control. My God, how many tons of steel are we putting at these kids' disposals? Now, I would be for raising the driving age to 21 and saying guns, cars, all these things that involve impulse control. The age of majority is 18, but the age for that heightened responsibility is 21, whatever, let's say as a country, except that it cuts against this idea that I have that we actually should be giving kids more responsibility, not less. And that I think some, not all, I don't think this is some silver bullet, but many of our problems caused in society right now with sort of the malaise of the younger generation, I think is actually because we've been denying them that sense of personhood and

efficacy in their lives. And we should do more of it. Again, do I think gun ownership and cars are the way to do that? Like, no, I'd kind of prefer not to. But I think on the law, given the justification from Congress, et cetera, et cetera, you know, I think the Fourth Circuit probably got this one right.

I'll be interested to see on the scrutiny levels where that ends up. If the Second Amendment is really held to the standard of the First Amendment, which is what the Fourth Circuit said, then not a lot of gun laws are, not a lot of gun restrictions are going to make it because they're all going to be over and under inclusive, which is sort of the death of strict scrutiny. That intermediate scrutiny level, though, can tolerate some mushiness of the lines. So we'll see. The intermediate scrutiny, I just like to think of it as mushy scrutiny. It is mushy.

It is so malleable. It is so mushy in the hands of a judge. They can fashion that clay into any sort of text that they want to. It's Plato's scrutiny. Yeah. But I think sort of backing up, because we've talked a little bit about the overall regime of gun regulation in this country. I don't think the average listener, unless you've really paid attention to this issue, understands how, as of right now, your federally protected right to keep and bear arms is extremely narrow. It's to keep a handgun in your home for self-defense. That is, and that's incorporated to the states, but that is the, that's the gut, that's the guts of your federally protected gun right.

Now there's dicta that indicates that that right's going to be, and is probably ultimately going to be held to be broader than that. But the vast majority of what we call gun rights in this country are either legislative rights created by your state legislature or state constitutional rights to the extent that they've been litigated in state courts, which is not all that much. And so the reality is there's just a huge blue ocean of potential federal case law in the gun rights arena, just a huge blue ocean. And we will probably see, and this next case that's taken up by the Supreme Court is really narrow. This is going to be about, do you have a right to bear a gun outside the home? And we don't even know for sure, Sarah, if they're going to decide on some sort of standard review in that case. Well, and as we saw in the Fulton case and some others, if they don't got to, they don't do it. Exactly. So I actually agree with you that there's a good chance that we don't

have a set standard of scrutiny, but we will certainly have a conversation in the majority of the dissent, the concurrences about a standard of scrutiny. And by the way, for those listening and wondering like, well, wait a second, alcohol or cars and all these other things that have state age limits. This is always the case with guns, my friends. It's in the text. Alcohol, cars, all these other things that we have age limits for, rental cars. The big problem, solution, whatever you want to think about it with the Second Amendment is,

it's sitting right there under the first one. Right, right. This is not an area in which a legislator is walking in free to legislate or regulate under the police power of the state in the way that they're able to legislate or regulate across a host of other arenas because the Constitution, the Bill of Rights, puts its thumb on the scales. puts its thumb on the scales. This actually comes up a lot in discussions about religious liberty and religious carve-outs from generally applicable laws when people say, well, why, David, do you think that religious expression enjoys some kind of special status? Well, it's right there in the First Amendment. This is the giant thumb on the scales is the Bill of Rights. And the fact that the Second Amendment for years was really not a factor in federal litigation doesn't change its existence. And the fact of the matter is, Sarah, for a very, very, very long time, even the kinds of rights that we are very accustomed to federal litigation on, like the First Amendment, it's not like if you roll

back the clock to 1935, there's a host of First Amendment cases rolling up in the United States of America. We have become far more litigious in our nation over our rights than we used to be. in our nation over our rights than we used to be. And when you become more litigious, the prominence of these Bill of Rights, these amendments to the Bill of Rights only increases. But yeah, it's there. It's there in the text.

All right. You ready to talk about America's favorite lawyer? I'm always ready to talk about America's favorite lawyer. So this week, Michael Avenatti was sentenced to 30 months in federal prison. And because we dropped the ball on the Cosby case while it was happening, David, I want to visit this one in some real time. So let's back up. Do you remember Governor Bob McDonnell? A Virginia guy? Oh, yeah. Got arrested. I remember. Yeah. So he got arrested for

bribery, basically, convicted under the Hobbs Act, federal bribery. And it went all the way to the Supreme Court. He'd been convicted. And the Supreme Court held that basically, no, it needs to be quid pro quo and it's gotta be really pro quo-y. An official act, the quo or the quid, no, the quid's the money, right? Quid's the money, yeah. Right, quid pro quo, okay.

This for that. At least in Peaky Blinders, they're always talking about their quid. So, yeah. The official act can't just be setting up a meeting, making a phone call, hosting a party. It has to actually be an official thing that only the governor can do,

like exercising authority of the office. And, you know, on the one hand, people said, well, this will make it much harder to prosecute these public corruption cases. But on the other hand, if you didn't narrow that definition, then all of a sudden it's very unclear what public corruption is. And we want to give public officials some leeway just to do their basic jobs. You now can't set up a phone call with someone if they donated to your campaign. Ooh, this is getting weird. And so there was a very practical reality to McDonald v. United States. This case is from 2016. I give you all that preface. By the way, it was unanimous. John Roberts writing that one. I give you all that preface to introduce you to the people versus Michael Avenatti. Now, I hope that without us even having talked about

this case, everyone here knows how I probably feel about Michael Avenatti as a human, as a lawyer. Not a fan. Would love for him to be in prison all things being equal, I suppose. Or at least not practicing law. Definitely not practicing law. And, you know, it's like the equivalent of like, well, he was a man

in need of killing. Michael Avenatti was a man in need of prison. Like, I get it. But let's go through what he was actually charged with. So Michael Avenatti calls Nike, you know, shoe Nike, and says that he has a client with evidence that Nike engaged in this like weird NCAA violation, basically. Misconduct with high school coaches and sort of this pay-for-play thing going on. And that his client had legal claims and that they would host a press conference on the eve of Nike's quarterly earnings statements

unless Nike paid his client 1.5 million to address all of his potential legal claims and agreed to hire Avenatti to conduct an internal investigation in which Nike would pay Avenatti between 15 and 25 million. Man, this is a prince of a guy here. I mean, this is... He's amazing. He's really great. Nike, he's like, and you need to decide by tomorrow. Nike's like,

give us some more time. Nike, of course, calls the FBI. Good on them. And then Nike comes back and is like, well, what if we're willing to settle your client's claims, but we don't want to hire you? And he's like, let me think about that. He comes back and says, okay, we'll settle everything. You walk away. You won't hear from us again for $22.5 million. So again, remember, he said clients' legal claims were worth about $1.5 million. They would hire him to conduct an internal investigation for between 15 and 25. Then on that later phone call, he says they'll walk away for $22.5 million total. they'll walk away for 22.5 total.

And look, I don't think it will surprise anyone that Michael Avenatti's language and conversational style during all of this is maybe not ideal. What? Yeah, so I'm going to uh i'll i'll use effing instead of the word but michael

avanadi does not use letters he uses words okay i'm not effing around with this and i'm not continuing to play games you guys know enough now to know you've got a serious problem and it's worth more than exposure to me to just blow the lid on this thing. A few million dollars doesn't move the needle for me. I'm just being really frank with you. So if that's what's being contemplated, then let's just say it was good to meet you and we're done. And I'll proceed with my press conference tomorrow. I'm not effing around with this anymore. So if you guys think that we're going to negotiate a million five and you're going to hire us to do an internal investigation, but it's going to be capped at three or five or $7 million.

Like let's just be done and I'll go and I'll go take $10 billion off your client's market cap. I'm not effing around. Yeah. Okay. So I mean, it's not quite, what was the name of the documentary we saw? Varsity that you made me watch Varsity Blues. Varsity Blues. Yeah. Yeah. Yeah. It's not quite, what was the name of the documentary we saw, Varsity, that you made me watch, Varsity Blues? Varsity Blues, yeah.

Yeah, yeah. It's not quite like the, hey, let's crime now. Do you remember the criming we did? Yeah, it's not. No. No. But it's pretty, it's pretty funny nonetheless. Go ahead.

Anyway, sorry. It surprises me not even a little bit that a jury is going to convict this guy, for instance. So the FBI arrests him for extortion and a jury convicts him and he's now been sentenced to 30 years. But David, I've got to tell you, there's something a little bit weird about this case and I'm surprised that other people aren't pointing this out. An attorney representing a client with actual legal claims. Now, we can talk about what should happen if those claims are frivolous, how frivolous they have to be. I actually don't think even that's a slam dunk. But an attorney with real legal claims, they go to the corporation with those legal claims all the time and ask for settlements and say here's the complaint we won't file this if you want to pay us this amount that's how much

we're willing to settle for now once we file the complaint and we've put in some effort here then the amount's going to go up and it'll go up after your motion to dismiss has been denied and it's going to go up again after your motion for summary judgment has been denied. And if we have to do discovery, you know, like that's that's not only how the game is played, but actually it's in the interest of public policy because we do want to discourage litigation. And if someone has a real claim against you, we want you to settle that if you think their claim is also pretty valid. And we want to encourage that. So that's, David, why I wanted to talk to you about this Avenatti prosecution. You have a lawyer. He does have a real client. The client, at least, again, this is based on the complaint, the client at least claims to have evidence of malfeasance by a Nike employee and

claims to have some legitimate legal claims against Nike. Maybe they don't. Again, we can talk about what if those claims are frivolous? What if you know your client's lying about their claims? I actually do not think that totally undermines when a lawyer is committing lawyering versus when a lawyer is committing extortion. And in this case, not only do I think this is incredibly close to the line, or rather, I'm not sure. I don't know how close to the line this is. Well, what about Sarah Avenatti's desire to be hired by Nike? Sarah Avenatti's desire to be hired by Nike to doubt that. So, so I have, I've written my share of demand letters in, in my time as a lawyer where I had clients, I was representing clients with,

with, um, meritorious claims. And I'm saying, Hey, let's settle this thing and fix this thing before it turns into a lawsuit. That's totally normal lawyering. What I've not done is sent a demand letter to say, let's think, pick up a university that I filed suit against. Pennsylvania, Penn State, let's say. I didn't send a demand letter to Penn State saying, here are my demands. saying, here are my demands, repeal your speech code, and then hire me for $500,000 to conduct an independent free speech audit. And if you don't do A and B, then I'm doing a press conference tomorrow talking about how you hate the First Amendment. What about it's that element of self-dealing in there? Is that going to be enough?

Because I agree with you completely that if you're saying, I represent a client. Unless you pay my client $2 million, I'm holding a press conference tomorrow disclosing my client's claims. And then off to court we go. I mean, as you said, that looks a lot like loggering. But if I'm saying, and you hire me, and you hire me, huh. So let me give you both sides. On the one hand, yep, Avenatti has this whole self-dealing side of it. And he says that the $12 million retainer that they need to pay him up front is once they pay him that service is already rendered, right? He's already earned

the 12 million just by signing the contract. He doesn't have to do anything additional. They will then have to pay him additional money for the services he actually renders, how they work that out, whether it's billable, flat fee. He's willing to negotiate on that because he's a kind businessman. I agree that that doesn't look good. Then you have, though, this call where they say, you know, the Nike attorney is now working with the FBI. So this is, you know, set up in a sense. But the Nike attorney says, you know, set up in a sense. But the Nike attorney says, you know, we'd like to resolve these demands just by paying your client rather than retaining Avenatti. So he says he understands that Nike might like to get rid of the problem,

quote, in one fell swoop, rather than having it, quote, hanging over their heads. swoop rather than having it quote hanging over their heads abenadi says he does not think it makes sense for nike to pay his client quote an exorbitant sum of money in light of his role in this but then he comes back and says if nike wants to have one confidential settlement and we're done they can buy that for 22 and a half million dollars and we're done, they can buy that for $22.5 million and we're done. Full confidentiality, we ride off into the sunset. That kind of cuts both ways. The fact that Avenatti is willing to settle everything for his client now. Was there some side deal where the client was still only going to get $1.5 million and Avenatti is taking the rest? I don't. Surely that is something close to the case here. But it undermines the idea that

there was like this mandatory investigation settlement side. And don't forget, you know, Al Sharpton used to do versions of this. He would call companies and say like, you've got a real diversity problem. You need to hire my coalition to come help your company. That's what I meant. Yep. Rainbow coalition. Yep. That's what I meant. Yep. Rainbow coalition. Yep. That's what I meant. You know, I don't, I don't know, David, I don't know that this is going to hold up on appeal on the definition of extortion and what it means to be a lawyer settling with someone who you have potential legal claims against.

lawyer settling with someone who you have potential legal claims against? You have pricked my interest in this case, Sarah. My legal interest. I was always, you know, somewhat interested from a prurient interest standpoint, like, well, look at what's happening to this awful guy. But yeah, you raise interesting issues. I mean, because the, you know, if you did a $22 million settlement and your client gets 1.5 and you get 20.5, there's a bar complaint type, you know, there are contingency fee issues. Yes. So this isn't, this isn't necessarily, is this guy an ethical lawyer? It's, is this guy's lawyering so unethical it's criminal?

That is the interesting question. But yeah, okay. I'll be watching. Yeah. And regardless, on appeal, this will really define where that line is for lawyers. Because, you know, Avenatti's point on the internal investigation, and again, I think he's a lying piece of crap who would get disbarred based on this complaint, because I don't think he's representing his client's interest particularly well. But his point to Nike is, look, this is one high school coach who has this evidence. I assure you this isn't the only time a Nike employee did this pay-to-play thing with a high school coach. You need to hire me for an internal investigation so that I can go find all these other instances where your guys were making these

deals because there's going to be a hundred coaches out there who have versions of this story. And therefore, I know how to find this because I know how it happened in this case. Or if you don't, I'm going to go explain how Nike works and that they're breaking the law. I don't know that that's extortion. I don't know. Yeah, it is fascinating. It is fascinating. It is fascinating. So what's our timetable before we have the Avenatti podcast, the sequel?

14 months or so? This is going to go up on appeal real quick. Yeah, yeah. Yeah. Interesting. Okay, okay. Well, I got to admit, I have to apologize when you said I've got an Avenatti issue. I was thinking, huh, do you really have an Avenatti issue?

But you got an Avenatti issue. This is fascinating. All right. So you see why I compare it to the McDonald thing. Yes, of course. No, it's a great comparison. It's a great I mean, you know, the McDonald thing. The facts of that case were pretty gross. They were gross. Yeah. But the implications of the criminal conviction were pretty sobering. Broad. Yes. So for example, how many times has a, how many times has a politician said, I'm going to have my reception for max donors and then the general event. So is that a bribe? Because you're getting FaceTime with the candidate, with the senator, with the congressman. Now, the McDonald case had much more

sort of in-your-face facts than that, but where was the line? Sure, but let me give you a different example. A donor takes you and your wife to dinner, that. But where was the line? Sure, but let me give you a different example. A donor takes you and your wife to dinner, you being the elected guy to dinner. So that's not a donation. It's not on your FEC report or anything. And then he calls your office the next day to talk to you about how you think the election's going to turn out. Who do you think is going to win this race? Like you don't take that call from everyone. And that guy just bought you dinner. Right. Is that Hobbs Act? So in this case, you know, the next time a lawyer calls a company and says, my client has claims against your company. Do you want to settle for the sake of our glutting, our civil litigation docket? we don't want the company to say,

hell no, instead we're calling the FBI and you're going to be arrested. And really, the company doesn't want that to happen. They want the call with the at least opportunity to settle. Yeah. Yeah. Fascinating. So, yep. All right. That's my Avenatti bit. And we'll take a quick break to hear from our sponsor today, Aura. Ready to. That's my Avenatti bit. today. Even better, with unlimited storage and an easy to use app, you can keep updating mom's frame with new photos. So it's the gift that keeps on giving. And to be clear, every mom in my life has this frame. Every mom I've ever heard of has this frame. This is my go to gift. My parents love it. I upload photos all the time. I'm just like bored 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 auraframes.com. Use code advisory at checkout to save. Terms and conditions apply. All right. So I've got a fact scenario for you, Sarah. So let's just say we have... So let's set it up like this. If you run a business, there are going to be regulations. In many instances, when you run a business, there are going to be regulations that require you to speak. So for example, if you are canning and selling peaches, you're going to have like calorie numbers. You're going to have to talk about, you're going to have to, um, give the ingredients. Like if you're using high fructose

corn syrup in your peaches, whatever, and please listeners, I don't know how to can peaches at all. I guess the ingredients would be peaches. Well, all these restaurants in some states that now have to post calorie information, like fast food restaurants where the calories have to be next to my quarter pounder, which I don't like. Right. Right. Exactly. It's kind of nagging you a little bit. So that is a form of compelled speech. I mean, these are words that you're being forced to say by the government, but the government couldn't come into In-N-Out Burger and say, you must post your calories and also say, so, you know, I'm here in California, save Gavin Newsom, you know, because he's got

this recall election. Well, you can't force somebody to engage in political speech. Okay. That even if it's a business and even if you're, you're calling it some sort of commercial regulation. All right. So on which end of these, so these are the two extremes, calories defeat the recall of Gavin Newsom, two extremes. Here's the actual Nashville or the actual Tennessee law. So the Tennessee law says that if you're going to have a bathroom that is unisex, the top one-third of the sign must have a background color of red and state notice in yellow text centered on that portion of the sign. The bottom two-thirds of the sign must contain

boldface block letters in the following statement centered on that portion of the sign. So you've red on the top, one-third red that says notice, two-thirds at the bottom yellow with black type that says this facility maintains a policy of allowing the use of restrooms by either biological sex, regardless of the designation on the restroom. Is that closer to this burger has 100 calories in it, or well, that's not a burger. This burger has 19,000 calories in it, or is it closer to, I don't know, save Gavin Newsom? It feels a lot closer to the calorie count to me. Can you explain how in any world where it's not closer to the calorie count? I'm not even sure I fully understand what the purpose of this law is. The purpose is to warn you from going into a bathroom that a person of the opposite biological sex may be using. So this is a-

But is it single use or is it multi-use? It's just- Are you warning me that someone could be in there? Or are you warning me that someone used to be in there? No, no, no. This is a bathroom that if this bathroom allows a person, let's see, here's the exact. But you know what I mean?

Like these single use ones where like, yeah, anyone can go into them because otherwise there's like a line for the women's stall and there's no line for the men. And that's very frustrating versus a bathroom that has six stalls in it. You're saying it's for the six stall one. Correct. So this definition excludes a unisex single occupant restroom or family restroom intended for use by- Got it. So this is if you're going to- But before I walk into the six stall movie theater restroom, it's going to have a... And I think it's the women's restroom. It's going to have a sign.

It's like, beware, Sarah. We might be, we allow anyone to go into this restroom regardless of their biological gender. So that way I am not shocked when someone I'm not expecting is in my bathroom. Correct. Correct. So this is a lot more like the calorie count to me. Interesting. Well, the court said, nope, the court said, nope. The court said that this is actually that, that this is actually more like the save Gavin Newsom. And I should come up with a better example, but I'm in California and people are talking about the recall. So it, it is what it is. So anyway, the court was basically saying that the thing that really tipped it over and distinguished it from, say, ingredients or calorie counts,

the thing that really tipped it over was the signage was like a warning. It was a, you know, the red signage, the yellow background. This was like warning trans people might be in here. And that that was tipping it over towards expressing something more than just a neutral sort of regulation that says calories to something that was specifically designed to warn against and target the access of trans people to a bathroom according to the private preferred policy of the restaurant owner. Okay. I'm a little sympathetic to that because then let's move the equivalent to my calorie example. That's more, I guess, like having the calories have to be in red with a little skull and crossbones symbol next to them. And let's not get into cigarettes. I know you guys

are thinking about cigarettes in your head. That was totally different weird one-off thing um yeah i don't think you could make them put skull crossbones don't eat this calorie count um but then i like but i don't see why you couldn't have a sign on the bathroom set aside the colors like you just said it's like this bathroom is open to people regardless of their gender in fact i don't see why that's not a welcoming sign well right i mean no there this is not dealing with and the the the issue isn't bathroom labeling the issue is the form of the bathroom labeling that's that's the the key part of this So the law has always said label bathrooms. It's the warning aspect. And actually, the interesting thing was that that cigarette or alcohol warning came up in the case.

I bet it did. It came up in the case. And basically, the court in that circumstance said, well, you know, we've got evidence that there is a danger from alcohol and tobacco. There is no evidence that was introduced into the record in support of this law that there was, that it was meeting an actual danger or was warning against an actual danger. So fascinating. But what really ticked me, tipped, not ticked, tipped me off to this case, I saw it and I was just sort of scanning through because I started with your position. Wait a minute. Isn't this a lot more like calories? Don't we label bathrooms? I mean, isn't this

just something you do? And when I first read it, I actually thought it was like, I didn't know which side I was confused because I was like, wait, you're just saying that they can label their bathrooms to say that any gender can use this. Now I understand that it was a warning versus an explanation. Right. But yeah, explanation seems like it would be both welcoming to some people and also a good heads up to other people. And like, we're all better off for having more information. Right, right. So, no, it's that red and yellow.

That's the key. Those are the key facts to the case. And so I was interested, came across, you know, a couple of people emailed it to me. What do you think about this? So I'm just scanning through. And this is a really, this is something I talk about a lot.

How rare it is to find consistent defense of civil liberties and how people's allegiance to cases switches based on the outcome. Okay. So there is a quote in here and it says, the case law on this subject does not mince words, Sarah. It doesn't say Sarah in there, but I'm just emphasizing. The case law on this subject does not mince words, Sarah. It doesn't say Sarah in there, but I'm just emphasizing. The case law on this subject does not mince words. For example, the Sixth Circuit has recognized that, quote, compelling an individual to utter what is not in her mind, and indeed what she might find deeply offensive, is, quote, the most egregious form of viewpoint discrimination. Cite to Ward v. Pollitt, 667 F3rd, 727, 733, 6th Circuit, 2012. If you go to Ward v. Pollitt and you look at the list of counsel,

whose name is sitting right there? My name. And what are the facts of Ward v. Pollitt? In Ward v. Pollitt, you had a counselor who was nearing the end of her counseling program, her degree program at Eastern Michigan University. And she was going to be required to counsel a gay person in, and I can't remember if it's a he or a she, I believe it's a he, in his same-sex relationship. And she said, essentially, I'd be happy to counsel a gay person on, you know, what's happening at work, counsel a gay person on dealing with their kids.

But, you know, I don't believe that same-sex relationships are morally appropriate in circumstances where you feel like you're counseling someone in a way that is morally inappropriate, you refer. The proper thing to do is you refer someone to another counselor rather than sort of counsel them in conduct that you disagree with. So you refer to another counselor. In that case, she referred the client to another counselor. The client never even knew that they had been referred. They were coming into sort of like a general clinic and they got a counselor. And so Eastern Michigan threw her out of the program and right on the eve of graduation.

And so we filed suit and said, this is compelled speech. You're compelling this person to engage in and to advance a moral point of view that they disagree with. And she won the case. So when that case happened, this is back in 2012, LGBT folks were really upset about it. They were really upset about this case. This is discrimination. This isn't individual liberty. Fast forward to 2021, ACLU is filing this case on behalf of LGBT customers. And what's with the case that they're citing? Ward v. Pollitt, the very case that LGBT groups were very angry about almost a decade before. And it's, I think, an interesting lesson, Sarah, and I like to point these out about how when you protect the liberty of one group, you protect the liberty of all

groups. And it is not quite the way when you're dealing with civil liberties. It doesn't, it is not the case that if you win on First Amendment grounds, it's Christians win, gays lose, or gays win, social conservatives in Tennessee lose. What you're talking about are the liberty interest wins. And as the liberty expands, it's available to all groups. And so I just thought this was an interesting little illustration of that. And it's one that's also another one of my favorites is a case that was a Religious Freedom Restoration Act case tossing out a criminal prosecution of some progressive immigration activists who had been leaving food in federal lands for illegal immigrants who are crossing the border. illegal immigrants who are crossing the border. And they said, we got a RFRA. We have religious freedom. This is our religious act. You know, our religious faith in action is welcoming immigrants. And what was one of the cases they cited in support of their claim? Hobby Lobby. And they won. So very, anyway, it's an interesting case. It'll be interesting to see what happens on appeal because I agree with you that there's an interesting kind of gray area here because indisputably, you can say, hey, label your restrooms.

but is there enough of a sort of a con a, a content viewpoint mandate with the warning label that, that pushes this over anyway. And interestingly calorie counts, you know, I was saying you couldn't do the calorie count with a skull and crossbones, you know, that would, that would be the equivalent to what you're talking about. But, you know, I might actually argue that the calorie count itself, that wasn't

meant to be welcoming, just so you know. No. The calorie count is meant to warn you. It is meant as a warning. That number is high. Right. Yeah. And it's supposed to encourage you to get something with the lower number. True. True. And so in this case, the bathrooms are labeled because it's supposed to encourage you to go to a place that doesn't do their bathrooms that way. True, true. And so in this case, like the bathrooms are labeled because it's supposed to encourage you to go to a place that doesn't do their bathrooms that way. Again, like I don't love that. And I'm not sure why you couldn't just label the restrooms in an informative way, like the calorie count. But I think to say that the calorie count was purely meant as a piece of information also is not quite accurate. But I tell you this, this read that this case, and we'll put it in the show notes, excuse me,

the language of this is really the language of this opinion. It says in order to defend for defendants to prevail on their argument that the mandated message is merely factual and uncontroversial, then they must offer some reason why, despite the evidence and despite the controversial nature of the subject matter implicated, the mandated statement itself is simply an innocent factual disclaimer. To do so, the defendants have primarily relied on adopting a tone of incredulity while pointing out the language of the required message does not

expressly include any overt statements about transgender individuals, intersex individuals, or gender identity. So essentially what she's saying is the defendants have sort of said, what? How could you look at this red and yellow sign and say that it was communicating anything about transgender individuals? So it will be, it will be fascinating to see this decided on appeal. Matt, you know what? This is one of those bad facts make bad law. Like their intent matters. Their intent here is clear.

Their defense is incredulous. They're going to lose this. Yeah, I think you're probably right. I think you're probably right. But it's not because in theory, some other sign like that, if it included calories or something that wasn't part of the culture war, wouldn't pass constitutional muster. It's because their intent is bad. Right. And I don't actually mean bad in the sense of whether I agree or disagree with it.

Their intent is different than their legal defense. And people don't like disingenuousness. Bingo. Exactly. Because if they walk into court and they say, no, actually, we're intending to warn people away because it's dangerous to allow transgender individuals in this bathroom, then they're going to have a real trouble winning the case. Which, by the way, would be if that is how the calorie thing was defended. There were lawsuits about that. And it was like, yeah, we want to give people the information to make smart and healthy choices because making unhealthy choices when you don't even know you're making an unhealthy choice is unhealthy. They need to give that equivalent of their argument,

but they're unwilling to do that. Yeah, it's fascinating. So you highlighted a case that's going to be interesting on appeal. I've highlighted a case that'll be interesting on appeal. So stay tuned. Episode, I'm going to predict this is going to be talked about in episode 263. Okay. All right. We'll see. Okay. One last quick thing. We're running out of time. Sarah, Olympics are coming. A, are you going to watch? And B, if so, which sports are you circling your calendar to follow? I just want to be really clear, David. Not only am I going to watch, like when we're taping this podcast, I will not be listening to you because I will be watching the Olympics between my answers. be listening to you because I will be watching the Olympics between my answers. Okay. Okay. Fantastic. I'm an obsessive. I am so into the Olympics. It's everything that I love, right?

It's competition. It's the fulfillment of people's life dreams and it's patriotic. Perfect. You know, and I would say, I would add to this, there's, I'm really despised the fact that we now have like this really increased international tension between us and China and us and Russia. It's bad for the world. It's bad for our country. It's dangerous. It's awful. But. It's good for the Olympics. It's real good for the Olympics.

Now. Yeah, it's good for the Olympics because now we've got our medal counts. They matter. It doesn't, it feels somehow better to beat a giant communist, belligerent communist power in sports. And it feels like beating great Britain. So I agree. Yeah, I definitely agree. Yeah. And the summer Olympics will provide a great opportunity vis-a-vis China with swimming, diving. You know, the truth is, you ask me which sports I'll watch. Like, no, no, no, no.

I watch all of them. I don't care. If the U.S. is winning, like, then I'm in. I mean, obviously, my whole newsletter is from the Winter Olympics, USA gold medal winning curling team. Yeah. No, I mean, we, we had, yeah. I mean, we had the curling coach, one of our most popular and talked about advisory opinions, U S Olympic curling coach.

Still wonderful. By the way, I talked to Phil on the regular. Oh, that's outstanding. All right. All right. See, we can have a scintillating advisory opinions podcast and only until this moment did we mention the net the word supreme and court together yeah no way i talked about the supreme court early on in the fourth circuit case yeah so did i mcdonald case whatever okay we didn't we weren't talking about specific recent supreme court opinions so details details all right well thank you guys for listening we will be back again next week please go rate us on apple podcast please subscribe on apple podcast and check us out at thedispatch.com and we will talk to you next week. you