Advisory Opinions - Has the First Amendment Ever Been More Relevant?

Episode Date: September 1, 2026

Sarah Isgur and David French pick through a trail mix of topics for this week’s episode.  The two discuss bracelet-wearing parents at a soccer game, student visas being revoked over bad speech, and classified information being printed. But they kick it off with a big “Sarah got it wrong.”  The Agenda: –Sarah got it wrooooooong –Breaking news and the mail-in ballot decision –Pentagon leaks and the Washington Post –FIRE’s win and student visas –Felons can vote in Minnesota –Trans athletes and pink bracelets –James O’Keefe and pretty interns –Predicting SCOTUS cases Advisory Opinions is a production of The Dispatch, a digital media company covering politics, policy, and culture from a non-partisan, conservative perspective. To access all of The Dispatch’s offerings—including access to all of our articles, members-only newsletters, and bonus podcast episodes—click here. If you’d like to remove all ads from your podcast experience, consider becoming a premium Dispatch member by clicking here. Learn more about your ad choices. Visit megaphone.fm/adchoices

Ready? I was born ready. Welcome to advisory opinions. I'm Sarah Isger. That's David French. David, we just, we have, it's like a grab bag today. It's potpourri with a lot of First Amendment. It's like a trail mix with a lot of M&Ms in it.

A lot. So I'm not going to give chapter summaries today. We're going to dive in. We've got a lot to do. We've got bracelet wearing parents at a soccer game. We've got student visas being revoked over bad speech, classified information being printed in prior restraints, surveillance videos and civil damages. But we'll start with a big Sarah got it wrong, like the biggest maybe, me being really

stubborn about it. I'm excited about this one, Sarah, because you know how much I love good First Amendment podcasting. That makes us happy. Well, here we go. Two and five Canadians will hear the words you have cancer. That's why every step and dollar raised matters. On September 19th, join thousands in Toronto for the Princess Margaret Cancer Foundation Walk.

Challenge yourself, friends, and family to walk 21 kilometers in support of life-saving research. Together, we can carry the fire and help create a world free from the fear of cancer. Register today at pmcfwalk.ca. Real Canadian Superstore has everything you need this back-to-school season. Save on lunchbox savers. like Ziggy's sliced Ellie Me products for always 375. And get Life Brand Pure Vita shampoo or conditioner for $8 each. At Real Canadian Superstore, when you're ready, we're ready, with a whole world and more.

All right, David, I just wanted to start with my annoyance of the day. I got no fewer than three breaking news alerts that Trump's mail-in ballot executive order was going into effect. One of them was actually a breaking news alert that the post office confirmed that the ballot restrictions were in effect on Thursday. Huh. Yeah. Do you know how many breaking news alerts I got into my inbox that, in fact, on a Thursday, the new lawsuit had already gotten in front of a district judge and the whole thing had been enjoined?

I got zero, David. Really? So if you're only looking at sort of your inbox for news, you would absolutely think that the Supreme Court, you know, told Donald Trump, pew, pew, go for it. And that the post office... Is that a quote from the case? Poo, p, p, p, go, okay. The United States Postal Service was restricting mail and ballots.

And you would have no idea that, in fact, new injunction, exactly what we said would happen, right? That the new lawsuit would get filed about the final rule. Mm-hmm. And that it would be enjoined to suite. It was within hours. And in fact, within, like, not even hours of the breaking news alert. that was then never corrected. Right. Yeah.

No, that's interesting. There is an absolute tendency sort of globally to move towards the alarmism without question. And I think that that was reflected both in the initial coverage of the Supreme Court decision itself, which we covered extensively, and then reflected in the news coverage. because when we first recorded, sort of letting you in on the secret sauce, we first recorded there were one injunction that was lifted and one injunction that was still in place.

And in between the time that we recorded and it was released, the second injunction got lifted as well. So we did this hurried edit where all of my comments about one injunction was still in place were taken out of the podcast. But then we both knew, we both knew that with the rule finalized,

you had lawsuits in the can ready to go instantaneously. And we both knew that with the final rule promulgated, let's put it this way. If the district judge had enjoined the promulgation of the rule, it's going to enjoin the rule. Like this was one of the most foregone conclusions ever. And so watch this space because the appellate process is going to unfold. But as of right now, that Trump executive order, specifically the Postal Service regulation regarding mail-in ballots, not enforceable. All right, David, so that's everyone else's fault where I'm right and everyone is wrong. Now I would like to move to the everyone was right and I was wrong portion of the podcast.

Oh. Do you remember us talking about congressional apportionment and the Constitution and the, you know, shall not exceed 30,000 and George Washington? We got so much mail about that, saying that I was wrong. So much mail. And trying to explain to me why I was wrong. And I was like, yeah, but the history. And I was like, but I, you know what? We got enough mail on this.

I will go, I will go redo. Like, I will go look into this more. I think they're right. I think I'm wrong. I think the text is a bit ambiguous. Though I think they probably have the better textual analysis that it sets a floor for the number of people that can be in a congressional district, it cannot be less than 30,000 people.

I think it is a little ambiguous on that. Here's what's not really ambiguous and what really pushed me over the edge. The Congressional Apportionment Amendment that was proposed September 25th, 1789 in the first 12 amendments for the Bill of Rights. If you remember, 10 of them are ratified. Two are not. One is then ratified later. And then this one, this is are poor, poor hanging out one. By the way, 10 amendments were ratified December 1791. Those are called the Bill of Rights. And 11th was later ratified as the 27th amendment in May 1992. That's the Congressional Pay One. This one, though, the Congressional Apportionment Amendment is still hanging out there. So if anyone needs a senior project, feel free to do this. It does the thing that I was saying that the text of the Constitution does, which I now take back and very much

apologize for saying that. It would have required one representative for every 30,000 constituents, eventually climbing to 50,000, regardless you would now have, David, 6,623 representatives being required under the original House version of this amendment. It does appear there might be a typo in the amendment. Who cares? Anyway, fun amendment. Lots of fun. American history, but the fact that this was one of those 12 initial proposed amendments fully convinces me that the text is setting the floor for how many people can be in a congressional district and that this amendment was intended to set a ceiling. We got so much email about that. It was a tidal wave. But I have to say, Sarah, when you're

outlining 6,700 representatives. You thought a good start? I said, I thought I will agree to that only on the grounds that it is set up like the Galactic Senate in Star Wars, where you have this immense vertical chamber and people come out and hover cars to deliver speeches. That would be cool. And now we don't have the hover technology, maybe sort of big drones. Then I'm all for it. But I, you know, I'm all for expanding the house, but 6,700 feels a lot. a tiny bit unwieldy, just a tiny bit. David, this goes back to your, you know, the anti-federalists had some things really right. And this idea that like we only read the Federalist papers and we don't spend nearly enough time on the anti-federalist papers,

the anti-federalists were very concerned about the idea that the House would no longer represent a small enough number of constituents. Yeah. And James Madison trying to allay these concerns. And that's why it's one of those initial 12 amendments. Anyway, my bad, apologies, full correction. Thank you to everyone who wrote in and tried to persuade me, including those who I told they were wrong.

Well, you know, we try to get it right and we try to get it right even when we've been wrong for a while. I've been wrong for a really long time. This like my wrongness, I really marinated in my wrongness there. I have done that more than a few times in my life. But it is very interesting. Sarah, what you raised about the anti-federalists. This is another thing where it feels like they were right about 235 years too soon. Yeah. In other words, they could see things unfolding,

but it absolutely did not unfold on their timetable. You know, I think that the anti-federalists had much more of a sort of this is an urgent issue. And the federalists had the better of the argument that the true urgency was ratifying this constitution. don't make the perfect the enemy of the good. We need to ratify this Constitution. This is about knitting the country together. And then we can clean it up on the back end with amendments. And the anti-federalists were right about a lot of the flaws in the Constitution,

which I think still should have been ratified, but reformed with greater enthusiasm on the back end. And now, you know, it's that wisdom of the anti-federalists that I think we're kind of seeing in a new light now. everything from the power of the president to the danger of the pardon power to the lack of representation in Congress. It's a lot of rightness just delayed. Sad. Well, you know, there are several states that ratified this amendment. So you're starting with a leg up. You're not starting from zero. There was no deadline or limitation. So, you know,

go for it. Could be really fun. And David, this is just like a fun bit of facts about why this amendment failed. Can I read it to you? It's from Wikipedia. This is not like great history or anything. But when originally submitted to the states, nine ratifications would have made this amendment part of the Constitution. We all sort of remember that part for the Constitution itself.

That number rose to 10 on May 29th, 1791 when Rhode Island ratified the Constitution. It rose to 11 on March 4th, 1791, when Vermont joined the Union. By the end of 1791, the amendment was only one state short of adoption. However, when Kentucky attained statehood on June 1st, 1792, the number of necessary ratifications climbed to 12, and even though Kentucky ratified the amendment that summer, along with the 11 other amendments, the measure was still one state short. So no additional states ratified the amendment after that with 50 states today, 27 additional additional ratifications are necessary to reach the required threshold of 38 ratifications needed

for this amendment to become part of the Constitution. It was so close. That's amazing. That is an amazing counterfactual historically. That's, that's astonishing. Now, I know you're reading from Wikipedia as opposed to like research for your book, et cetera, but I have a question about the lasting effects of doing your book. So one thing for me, that was so beneficial about doing my book was it just was like dumping in this huge amount of knowledge on that subject. And it's because you do a book about it and you're not like jamming for a test, it sticks with you. And it's very helpful. And I just was wondering, how much radiating positive effect do you have from pouring everything into writing this book for months?

and months. I mean, how much instant recall is still there? How much of like the just the sheer volume you had to learn? That's a really good question because after we record a podcast, I can't remember what we talked about the next day. It is incredible how fast that flies out of my brain. Yeah, yeah. The book is longer, but I do. My brain is real pump and dump. Like it does not strike me to be because I can actually tell a difference in pre-book Sarah and post-book Sarah on immediate recall of constitutional history. Yeah, that's fair. Certainly like the foibles and jurisprudence of the individual justices. Well, I had to rewrite several chapters several times.

So that was painful and scarring. So maybe that left some scars. Or maybe we'll just say imprinting, imprinting. That's kind. Yeah. All right, David. Why don't we talk about, what was the word that you used? Hodeurnal.

David. I've never heard this word. Okay, I might be, okay, Hodeurnal means of or relating to the present day. It's a very, it's kind of a rare adjective, but when you're married to one Nancy French, who loves words, like absolutely loves words, there are certain words that have been injected into our family vocabulary that like nobody uses. And one of those is H-D-E-E-R-E-R-N-A-L. And I pronounce it ho de urnall and that's what google is just now telling me ho de urnall so yeah okay great great word that is a great word um instead of de jure like why do french why not do a little like latinate okay yeah

you have two hode urnal topics for us that are not a pellet really but they shed light on what will become a pellet issues why don't we start with the pentagon yeah let's start with the pentagon yeah let's start with the Pentagon. Yeah, absolutely. So over the weekend, the Washington Post reported, it was really a very remarkable report that depends on a pretty breathtaking leak of classified information. And essentially what the report was saying was that when there was deliberations internal to the Pentagon about continuing the Iran war, certain aspects of the Iran war, there were multiple what are called non-concurs. In other words, senior generals were discharges were disagreeing and non-concuring in the recommended course of action for the remainder of the war or to continue the war.

And a couple of things. One, having a non-conquer is not, that's not an incredibly unusual thing. One of the things you, one of the things that makes the U.S. military very, very effective is that we actually, to a, you know, a surprising degree, subordinates have the ability to speak their mind and to provide input. And often a commander will know, and in fact when I was in Iraq serving at a squadron, armored cavalry squadron, which is a battalion-sized unit, that our commander of our battalion or of our squadron, he knew when his subordinates disagreed with him. And then he still make the decision.

So the big news is not disagreement existed. This is something that happens. How often it happens is kind of unknowable because it's all very highly classified. What's unusual is that there was a leak here of the non-concurrs. And what's impactful is perhaps why the non-concurs occurred. So this isn't a military podcast. We're not going to adjudicate the wisdom of continuing the war or stopping the war. There's a lot of tactical and strategic arguments there. This is a legal podcast. But there were a lot of threats thrown around on social media aimed at the reporters for publishing the classified information. So I thought it might be nice to just sort of take a quick look at what does it mean? What is what who holds what obligations when it comes to the publishing of classified information?

And the very short way of saying this is me, major David French in the Army, if I leak, I can be prosecuted. And I do not have a First Amendment defense, really, to that prosecution. I signed a nondisclosure agreement of classified and confidential information. There are statutes that bind to me. Now, as we've seen, unfortunately, often those are imposed with extreme prejudice on lower-ranking people and the higher ranking you get all the way up to, say, Secretary of State or Secretary of Defense. somehow we seem to be less rigorous in enforcing all of that.

But it is still the case that if I have a security clearance and I leak, I can go to jail for that. However, once the New York Times or the Washington Post or the Daily Wire or Salem or whoever, a blogger, a substacker, gets this information, the government's ability to prevent its publication, it's extraordinarily limited, extraordinarily. This is the Pentagon Papers case from the Vietnam era. New York Times and Washington Post were possessed some classified documents related to the Vietnam War, related to the onset of the Vietnam War, the conduct of the Vietnam War. These were classified. The government sought a prior restraint, sought to prevent publication. And the Supreme Court reached a decision. It was a pure curiam decision in 1971.

one. But I think the best, the best way to sort of talk about where I think the law actually is, Sarah, is in one of the concurrences. And it says, essentially this, even if the present world situation were assumed to be tantamount to a time of war. This was a live question during Vietnam. There was no formal declaration of war. There was the Gulf of Tonkin resolutions, et cetera. or if the power of presently available armaments would justify even in peacetime the suppression of information that would set in motion of nuclear holocaust. And neither of these actions as the government presented or even alleged that publication of items from or based upon the material at issue would cause the happening event of that nature. The chief purpose of the First Amendment's guarantee is to prevent previous restraints on publication. That's in Nerev v. v. Minnesota.

Thus, only governmental allegation and proof that publication must inevitably, directly, and immediately cause the occurrence of an event, kindred to imperiling the safety of a transport already at sea, can support even the issuance of an interim restraining order. In other words, if you're going to have a prior restraint in publication, you've got to bring the evidence. Now, I happen to think, Sarah, that I think almost that most district court judges, circuit courts, I think ultimately the Supreme Court would say, let's suppose we're engaged in a hot war with China over Taiwan. And we, in the Washington Post, obtained information that one of our supercarriers, which was supposed to be laid up in getting maintenance and repairs for the next six months, was being an extremely hastily made ready and was going to sail in five days. and it was going to sail in five days and China has, you know, dozens of submarines that could perhaps lie in wait.

I think the court would prevent that. I think that courts would prevent that publication. But if you're just going to say, well, there's classified information. This information relates to national security, publication of classified information harms national security, that's not going to be enough. You have to be able to walk in

and you have to show very specifically and very clearly, concretely, with evidence, the immediate peril of the publication. And I think that was the state of the law in 1971. I tend to think it's the state of the law would be the state of the law in 2026. I think we have a few things that have changed since 1971. That may be a little counterintuitive because I think they're very, very recent changes. I think that was the state of the law and still is.

But I think on the ground, those things didn't really. happened post-1971 because there was a lot more communication between the two actors, the publications and the government actors. I forget if I've told this story before on the podcast, but when I was at DOJ, we would work on police declinations where there was a police involved shooting. And then the civil rights division would be deciding whether to bring charges against the officer. Oftentimes, not surprisingly, there was. was not sufficient evidence to bring charges against the officer and we would publicly announce that and that would lead to protests. Sometimes it could lead to violent protests, etc. Okay. So

there was a police declination happening at one point and the Associated Press found out about it in advance. Bummer. And they called and we're like, are you going to have any comment on this? And I was like, hey, can I convince you not to do this? There's two main things here. One, the family hasn't been told. And we would like the opportunity to do that. And two, we are planning an enormous amount of law enforcement to be on site for when this happens so that people can peacefully protest and have their rights protected and, you know,

they're not be violence breaking out. By the way, if you're wondering how it leaked, it was because they canceled weekend leave for state and locals. And so one of them put together what it was, fair enough. And the Associated press was like, okay, we hear you. How long do you need to get people on the ground for safety purposes? And I was like, we're going to have them on the ground, you know, I forget, you know, 48 hours in advance. And then we're going to tell the family after that, because we assume then the family will tell people, et cetera. And they were like, okay, we think that your interest in peaceful protest is a actual security interest. We think your interest in telling the family first is about

not embarrassing the Department of Justice that this leaked. And I was like, you know, I think it's a little more than that. I think truly we would like the family to hear privately and not from the associated press. But that's not a security issue. That really is like things that would be nice. So I'll make you a deal. If you let federal law enforcement get on the ground, you publish it ahead of everyone else. You have the leak and like we're embarrassed but nobody gets hurt. And the Associated Press was like, sounds good to us. And that's exactly what happened, David. It was like a, you know, thoughtful give and take conversation where everyone laid their cards on the table. I think it is fair to say that that's not happening anymore. Well, it is. So for example,

the times and post scoops regarding the security situation about Air Force One, my understanding is that some of these, if the information was gained while Air Force One was still in theater, and there was a decision made not to publish until the president was saved, the press corps was safe, everybody was safe. So that's my understanding. So I do, you know, I know at the times

we still follow these protocols. The question is whether in any given instance the administration works with us on this or not. But I do think these protocols are, still followed. But I think it's an interesting question for these publications. Are they journalists of Earth, of humans, of Americans? Because, right, something might be in America's interest that is not in, I don't know, Cambodia's interest. And the two are, it's a zero-sum game, let's say. So which are you? Are you a journalist? Are you an American first or a journalist first?

Are you, you know what I'm saying? And I think that presents a really interesting ethics question for journalists. I think most journalists say that they're Americans first. I agree with that. And in fact, if you embed with American forces, you embed, and this is previous, there's very little embedding going on right now. I don't know of any embedding going on right now, which is one of the reasons why a lot of the war is kind of a black box to Americans. We just don't really know what's happening. but I used to handle and manage press when they came to our base.

And I would go out with press when they were covering our raids and covering our operations. And they had access to our planning. They had access now, not to everything, of course. So, you know, nobody go crazy here. But they did have a certain degree of access in some ways a surprising degree of access. But on the condition that they not explain, obviously and not report operations before they unfold. And I believe is Geraldo Rivera in the early invasion,

who literally on live TV, like, drew out the attack plan. And, you know, I don't think he was trying to hurt American soldiers. I think he, Geraldo Rivera, this and got very excited and way out over his skis. Never heard of that before with Geraldo Rivera. But it was a very big deal. It was a very big deal. and there have been discussions before of if a journalist knew that there was going to be an enemy ambush, do you disclose? Do you tell? And I think most journalists are, they understand that they are Americans.

And they take that into consideration in their coverage. But also in being Americans means that they're going to default towards more transparency in the absence of compelling reasons. All right, David, when we get back from this break, I want to talk about the foundation for individual rights and expression when in a district court about, nice transition here, the First Amendment as it applies to non-citizens in the United States criticizing the U.S. government. This case did have specific facts, although largely hypothetical ones. I want to talk like the most extreme version of the facts as this case is going to go up on a P.S. into the Ninth Circuit. This was the Northern District of California win for fire, finding that yes, in fact, non-citizens do have some First Amendment, maybe full First Amendment rights in the United States.

So we need to talk about the statute, about visa revocations. We need to talk about the First Amendment applying. And, yeah, I want to do that all in the context of, like, the worst person in my hypothetical world. We'll be right back. Oh, man, you're going to have to go low for, to be a hypothetical worst person, because we've got a lot of real life worse persons

that are really bad. Let's do it. Two and five Canadians will hear the words, you have cancer. That's why every step and dollar raised matters. On September 19th, join thousands in Toronto for the Princess Margaret Cancer Foundation walk. Challenge yourself, friends, and family

to walk 21 kilometers in support of life-saving research. Together, we can carry the fire and help create a world free from the fear of cancer. Register today at pmcf walk.ca.ca. So David, like I said, this was a fire case. You and I like talking about fire cases, especially when we can find some points of disagreement because generally speaking, we're team fire.

But this one raises really interesting questions for me. This is about, for instance, non-citizen students on student visas at Stanford University, for instance, who want to write for the Stanford Day. be editors on the student newspaper and who say things like from the river to the sea, Palestine shall be free, things like that. It's about people like Muhammad Khalil, is that his name, who has, you know, said stuff. I think he was Colombia. But David, these rules, whatever they will

end up being, will apply to anyone here on the United States on a visa and no matter what they say, right so you can say bin laden was right they deserved it kill all the jews and you're here on a visa so what are the actual laws that apply okay i want to read you some statutes before we dive into this yeah this is quoting from the statute after the issuance of a visa or other documentation to any alien the consular office or the secretary of state may at any time in his discretion revokes such visa or other documentation. Okay, well, that sounds like it's the whole ballgame, except there are exceptions. Under the deportation provision, if the, quote, Secretary of State has reasonable grounds to believe that a non-citizen's presence or activities in the United States would have potentially serious adverse foreign policy consequences for the United States, the non-citizen is deportable. A, also very broad. But an alien shall not be deported. portable because of the aliens past, current, or expected beliefs, statements, or associations,

if such belief statements, or associations would be lawful within the United States unless the Secretary of State personally determines that the alien's presence would compromise a compelling United States foreign policy interest. Okay, so David, super broad, get rid of aliens whenever you want for any reason. Except if it's based on anything they've said, believe, or do or think. Exception. Unless that belief or statement would undermine America's foreign policy as personally determined by the Secretary of State.

That's a whole, that's a, that's a nesting doll's worth of statutory language. It really is. It really is. Okay. So this district judge held that basically that has not been. been met that non-citizens, that the First Amendment does not distinguish between American citizens and not American citizens, Congress shall make no law abridging the freedom of speech. It doesn't say, like, for the people or, you know, there's none of that language limiting it.

And that, you know, that statutory language is not a free-for-all to deport people in general. David, thoughts and feelings. I mean, I think a couple of things. One, the district judge was largely bound by Supreme Court precedent here because you have a case going all the way back to 1945 Bridges v. Wixen that very clearly says freedom of speech in the press is accorded to aliens residing in this country. So from that standpoint, does the First Amendment apply to a, aliens of living in this country. Yes, the district court didn't really have any discretion

to hold otherwise. Now, the question, though, is, is the statute invalid, which is a different thing? Because, you know, if you're going to invalidate the statute, that's a step beyond simply saying that aliens have free speech rights. And so that's, to me, the more interesting question. because on an as-applied basis, on an as-applied basis, it strikes me as an easier case. If you're sort of taking the facial challenge to the statute itself, should the statute be struck down, that to me is the harder circumstance because it could very well be subject to perhaps a narrowing ruling that the compelling evidence of harm to American foreign policy has to be rooted in activities, as opposed to speech, et cetera.

But as a general matter, that level of discretion being granted to a public official to deport people who do, according to the Supreme Court, possess First Amendment rights, it's hard to see how that statute passes muster. but I could imagine a statute passing muster that is limited to or limits that discretion because I think it's the level of discretion given to the Secretary of State. It's essentially unbounded that makes this difficult for the government to prevail. Okay, so I'm squeamish about a few things here.

One, I think you agree, you have no right to get the visa in the first place. Right. Therefore, if we find that you say, bonkers things while living in France. We can deny you the student visa for those reasons. We have looked at your social media. You have been saying mean things about America.

You don't get a student visa to come study in America. Right? We agree with that. Yeah, there is not a zone of protection that is extending beyond the sovereign territory of the United States of America. So we give this French person, the student visa. They come to the United States and, you know, one day later, we find that before they came,

they said things about wanting to kill all the Jews and burn America to the ground, not an incredible threat way, just in a like saying mean things way. They set up before they came here. Now can we revoke the visa? I would say the easy yes is if they misrepresented anything in the visa application, et cetera.

Right. But I would say it's a much harder to then say, once they are here now and state action and the federal government is applying a punitive sanction to their speech, once you're in the constitutional zone, I don't know about reaching back and around for all kinds of speech said in other places and other times. I'm very squeamish about saying that you can continue, once somebody is here, you can continue a fishing expedition for all of their pre-immigration or pre-visit speech.

That makes me very nervous. Okay. But don't we think this is actually then setting up a this is why we can't have nice thing shirtlift type situation where you basically deny anyone these temporary visas if they come from countries where there is a large amount of negative American sentiment or where there is a lot of anti-Semitism because once they're here, we can't ever get rid of them if it turns out they also possess a lot of anti-American. anti-Semitic sentiment.

And isn't that kind of like not what you want the system to be like? Well, I think that the problem I have with that is who's deciding anti-American? I'm saying on like the front end of the visa process. Like surely we are not looking to grant student visas to people who hate America. No, I absolutely agree with that. The problem that I have is, with a statute that grants discretion to public officials to determine what is quote-unquote anti-American speech?

You're saying even on the front end, even when we're deciding whether to grant the visas? No, no, no, no. Okay, but I'm saying that the actual then incentives you're setting up are not to let anyone in in the front end because you can't expel them on the back end. So if we even have like, you know, you haven't said anything anti-American, but you come from a neighborhood that has a lot of anti-American people in it, we're not going to to give you a student visa because we can't take a chance. It's sort of, it's the rent problem. Maybe this is a better way to think about it. When you set up rules where landlords can never evict

someone, landlords don't rent to people with low incomes because the risk that that low income person won't be able to pay, but you also can never evict them. And so you end up with housing shortages for low income people, the more you put in these insane protections about you can never evict someone for five years. And so all sorts of people who we actually want to have this housing don't get it.

In a similar way, people who might make great students who are the ones who love America but come from this like horrible, you know, place. We can't really give them student visas because we can't take a risk that they turn out to be like

little wannabe, you know, verbal terrorists. Well, I mean, first there's, I don't think there's any such thing as a verbal terrorist. but the idea here, I think we already have appropriate safeguards for people who are coming from hostile nations. So in other words, if you're North Korea, if you're Yemen, if you're, especially Houthi-controlled areas of Yemen, if you're Iran, well, then as a general matter, I think a prudent country says, well, you need to, we need to see that you're a refugee or you're a dissenter or you're seeking asylum. Okay, then let me give you the really blunt example.

Okay. The percentage of people who identify as Palestinian who hold anti-Semitic views is incredibly high because of the education that I'm putting in quotes that they get. And yet, we grant all sorts of student visas to Palestinians to come study in American universities. If we can't deport them when it turns out, they say and think, horrible things about Jews, we probably shouldn't be giving them student visas in the first place because the chances are that they're anti-Semitic. And I don't like that policy. I would much rather have a policy where we take a chance on you if you come over here and start, you know,

having a student club called death to the Jews that we can just be like, you know what, you don't, no, like finish out your school year and then you don't get to stay here and use our universities for your death to the Jews club. Well, you know, obviously. if you're talking about somebody immigrating from Hamas-controlled Gaza, you need to be extraordinarily careful on the front end and diligent. I think you need to be extraordinarily careful and diligent on interviewing and screening people from the Palestinian Authority-controlled West Bank as well. The problem that I have is with, and I think that's just a matter of policy for each administration, But I think the problem that I have is that I have been around the block enough to realize that as soon as you start to say, well, it's, I'm worried, I'm not worried about the bad speech. I'm only worried about the really bad speech. Then all of a sudden what ends up happening is all the bad speech becomes magically the really bad speech. And when you begin to grant that level of discretion to public officials to decide what is the really bad speech and then sort of backwards,

engineer from that to entire regions and people groups, that gets grim really fast, whereas I much prefer if you have a situation, what I would call the status quo ante, which is if somebody is coming from a hostile territory, from a hostile nation, you need evidence that they're a dissenter, that they're an asylum seeker, that there's somebody who is fleeing America for its liberty and also not hostile to America, which is a, I think, a very conventional and normal way in which we have conducted ourselves. And I don't think that we have a problem in this country of immigrant-created speech-related instability in this country. It is not a problem. We're very good at creating our own stability with our own speech.

You know, I think that is by and large, I mean, what's obviously true, right? If you give the government the power to deport people for criticizing the government. government, they're going to deport a lot of people. No question. And any amount of criticism will suddenly be plenty deportable, et cetera. I am more worried about American citizen permanent resident speech. And this doesn't touch any of that. We're only talking about, for our purposes right now, let's talk about people with student visas. And it's like a privilege to be here. I actually think universities, the percentage of student visa people that they are taking for our American universities is a problem in and of itself.

That's a different. Yeah. Yeah, that, I agree with you on that. Yeah, I agree with you on that. Well, look, we're mostly in agreement here. All right, when we get back from this break, David, we have so many circuit decisions to talk about over this episode and the next episode. I've got two more First Amendment ones. Why don't we do those with our time remaining? Perfect. And our next episode, I've got like a zillion others. Two and five Canadians will hear the words you have cancer. That's why every step and dollar raised matters.

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You've arrived. Adventure in comfort with Volvo. Whether you prefer gas, plug-in hybrid, or fully electric, there's a Volvo for everyone. Learn more at Volvocars.ca. All right, David, let's start with an eighth circuit decision on the First Amendment. Minnesota has a law that allows felons to vote unless they are currently behind bars. Minnesota Voters Alliance, a group focused on election integrity, challenged the law in state court.

They believe that the law actually allows felons to vote only if their civil rights, quote, unquote, have been restored. And so simply being released from prison would not mean that you could vote if, for instance, you're still unsupervised release or have any other sort of ongoing requirements to the state because you are still in some sort of custody of the state at that point, even if you are allowed to leave the actual prison facility. They lose that case, right? So the Minnesota state court says, nope, the second you are released from prison, you can vote again. We disagree with your reading of civil rights being restored.

So, like, there's no more legal arguments for them to make. They've just lost. They still believe this, though, and they would like to now create a political movement to have Minnesota voters get behind them to amend the law, basically, to make it more clear, in their view, that this would not include someone out on supervised release, for instance. But there is another Minnesota law. And it says that no person may, within 60 days of an election, cause information to be transmitted by any means that the person intends to impede or prevent another person from exercising the right

to vote and two knows to be materially false. And this includes information regarding the time, place, or manner of holding in elections, and the qualifications for or restrictions on voter eligibility at an election. Okay. So their argument is this applies to us talking about this law because we're saying the law says already that you shouldn't be able to vote if you haven't had your civil rights restored. But a court has said that that's not what the law says. And therefore, we know that it's materially false and it's about the qualifications of a voter. And so we could be in violation of this law. Give us a declaratory judgment. And I read this and was like, no standing. Come on. Like you haven't been prosecuted. You just want like to raise this issue,

whatever. And here comes Leroy Jenkins, a local jurisdiction who then counterclaims in the lawsuit and says, yeah, we want to prosecute you. We will prosecute you. Yeah. So this case that I think otherwise would have just been thrown out, Minnesota's like, nah, let's do this. Yeah. Yeah, we love restricting speech about voting issues. A unanimous Eighth Circuit panel with an opinion written by Judge Strauss, friend of the pod, gnaw dogs this pretty hard. As they note, a law that allows the alliance to run an advertisement saying that 16-year-olds can vote, but not one saying that felons cannot undercut significantly the defense of the statute.

Now, David, of course, this is the problem, and they acknowledge the problem in the opinion. There are going to be some things that you could say that obviously do violate this statute in a way that is like, passes strict scrutiny. But their point is, yes, strict scrutiny is triggered here because this is a speech restriction. But no, the state has not presented a compelling government interest that is also narrowly tailored because of that 16-year-old voting. example, for instance. So they tossed it out as applied to this group and what they want to say and they get their declaratory judgment. And I don't know, I find it kind of hard to argue with. When you were talking about things fundamental to an election, strict scrutiny is going to be hard to overcome, man. It's going to be really hard. I mean, I think, you know, this is one of

those decisions that I looked at it. I read it. I thought, is this plainly correct that, you know, if you've got a jurisdiction that's Leroy Jenkins's into this, if you're making good faith arguments about the interpretation and meaning of a statute, there is no, what the heck would anyone be doing thinking you could prosecute somebody for that? Like, what are we doing here? Now, if you did something where, let's suppose you got a mailing list of everyone who was like on supervised release and where the state had said, you can vote, a judge had said you can vote, and you send them a letter saying legal notice and warning, the state Supreme Court has says you cannot vote. And if you vote, you will be thrown in prison. That's a different thing.

That's a different thing than making good faith arguments that this statute has been wrongly interpreted and that the proper interpretation of the statute is substantially different from the actual court interpretation of the statute. And so, you know, these are different things. One of them I would put in the same category as like, say, sending to every Hispanic voter in the state a warning that if you show up at the poll, be prepared to bring your citizenship documents when you show up at the polls. Like that would be, that would be, you know, a deliberate attempt to target and suppress the vote through the use of false information.

We've also seen the version where someone sends out something that says election day is Wednesday. Yeah. That's not really adding to the discourse. That's not a political disagreement, et cetera. That's just false information for the purpose of trying to prevent people from voting. Yeah. Voter suppression. Yeah.

Yeah. No, the decision seems plainly correct to me because you can absolutely argue that, hey, these state court decisions that interpreted the statute were wrongfully interpreted and future courts should reverse this interpretation. And if they reverse the interpretation, then, you know, in the future, people would face some legal jeopardy if they tried to vote under those. circumstances. That strikes me as debate, Sarah. It strikes me as debate. All right, David, I've got another easy one for you this time out of the first circuit in the relatively short period

between when New Hampshire passes a law banning trans athlete participation in women's sports to win the Supreme Court then says that those state laws are allowed. The New Hampshire law was enjoined. And therefore, a New Hampshire school's girls soccer team was going to play against another school's soccer team that had two trans athletes on the team. The parents of some of the girls were particularly concerned that their girls were going to get injured and that the school, their school, was not doing anything to protect their girls. And as they said, was like, waiting until after there was an injury. And like, it could have been their girl who gets then, you know, sort of soccer career ending injury to prove the point or something.

So they talk about various, you know, things that they should or could do about this, and they decide on a crazy tactic, David. They all go to the soccer game. They sit in the stands. After halftime, I think it's called something else in soccer, but I don't know. Yeah, I have been no idea. I just know it's a pitch. That's all I know.

I know it's a pitch. Great. Yeah. They distribute and put on pink, you know, those little silicone, bracelets and the bracelets have two X's on them. That's the protest. It is a silent bracelet wearing protest and the XX is supposed to represent two chromosomes and like, you know, if you know, you know type protest. Like with so many of these examples, the school reacts poorly. What? What? No. A school reacting poorly to free speech? They never, never.

parents to remove the bracelets. Some of the parents do. Some of the parents decline. Some of the parents who take off their bracelets handed to other parents who were yet wearing a bracelet. And so then the school starts having to play like maybe some whack-a-mole with the bracelets. Oh my God.

At one point during the whack-a-mole portion, they suspend the game on the field and make all the players go to the side until the parents take off all the bracelets. And then they give no trespass orders to one of the grandpas and one of the fathers who are then no longer ever allowed

to attend their kiddos soccer game because of bracelet gate. When asked why this was okay, the principal said that she considered the XX symbol to be, quote, hateful, quote, anti-trans, and concerning given, quote, the challenges that trans kids go through. I can't imagine your lawyer thought that was an okay thing for you to say out loud. as to why you banned them from wearing bracelets. Yeah. Okay, so the court goes through two analyses. One is limited public forum, which has to be viewpoint neutral.

It doesn't have to be content neutral, but it does have to be viewpoint neutral. So if you were allowed to wear a, you know, my trans girl should get to play soccer bracelet, then you have to allow the XX bracelets. And then there's the tinker analysis of like schools can prohibit. that, you know, disruptive or things that are definitely going to be disruptive, though that I've only seen really apply to students, but maybe parents and in this very, you know, specific context of them, like at a school event, maybe. And basically they're like, you're not pass and muster under any of these. Obviously, this wasn't viewpoint neutral. You only banned one side of the debate. And there was

no even guess that this was disrupted, except that the school disrupted the event over breaking. Slick Gate. Now, this was, David, like, is there anything even interesting about this case? Well, what's very interesting is that in the Year of Our Lord, 26, school administrators are still doing this kind of thing. Okay, so. Unbelievable. It is really remarkable. And, you know, when I, when I hear you talk about those facts, I feel transported back to like the late 90s or the early 2000s when there was much less robust free speech journey. prudence at both high schools and colleges. And there was at least some sort of glimmer of an idea that the Tinker standard was really

pretty narrow, that there was a lot of discretion given to administrators to very broadly interpret anti-harassment statutes so that any kind of speech, they could create these very thick prophylactics where any kind of speech that could theoretically offend someone covered by a non-discrimination statute could result in punishment? Because this was the argument I was dealing with in 99, Sarah, was sort of the idea that, okay, look, in other circumstances, this kind of speech would be absolute free speech. But in the school environment where we are obligated to protect students from harassment

on the basis of the various categories, we have to be given very broad latitude because we're under the gun of federal liability. under Title IX, under Title VI, et cetera. So we have to, like a law firm can do something like ban fraternization between partners and associates as a prophylactic measure. We have to be given lots of room. And courts one by one by one by one by one until the point where we got to,

where I think it was fair to say 10, 15 years into this, we'd never seen a speech code or a harassment justified speech code upheld by any federal court appointed by any president in America that I thought we were over this. I thought we were over this. And apparently not. I think that essentially what you see happen in the free speech realm is every new fashionable cause or every new fashionable panic, it might be a new panic, or it might be a new cause, but all the old justifications for speech restriction come rising. up out of it. And this is a classic example. All right, David, do we have time for one more First Amendment case?

Oh, we always have time for First Amendment. Okay, this one is, I think, really interesting and a little bit idiosyncratic maybe. This is about James O'Keefe and Project Veritas out of the Fourth Circuit. So I think everyone's pretty familiar with James O'Keefe, but he infiltrates liberal groups, records them without their knowledge, saying bonkers stuff, they edit the videos, they put. put them out publicly. They embarrass the group or the person to try to, you know, instigate change against liberal causes. So here's the plan. They have someone pose as the consultant for a fake billionaire who wants to basically do voter fraud, wants to help Democrats, wants to help liberal

causes and is like, what if we bust people into Wisconsin and get them these like fake employment things and then they can vote? Wisconsin has very easily manipulated voter registration laws and people for a long time have accused folks of busing in Illinois voters into Wisconsin for this sort of same-day registration problem. Okay. So they're like, you know, recording the guy and the guy's like, great idea. But you need to know our like D.C. consultant, Bob Kramer. This guy's very famous as a D.C. consultant. He's married to a Congresswoman. And they get to the meeting with Bob Kramer.

And now they have the actual fake billionaire involved too. And he's like, hey, meet my niece. She's like a 20-something haughty. Can she volunteer at your political consulting place? I mean, they never asked for her resume. They say they're going to make her sign an NDA, but they forget. And they don't. So for a week, she's there at the political consulting firm, you know, digging through their files and stuff.

Okay. They then put out a video massively embarrassing Bob Kramer and his consulting firm. Bob Kramer sues saying, you know, all sorts of, you know, state-based civil liability claims and wins the jury finds for him. The Project Veritas people appeal arguing that this was a violation of their First Amendment rights. Now, I want to do. to read you from this decision, which is unanimous for most parts. I'll tell you the part that's not unanimous in a little bit, but it's pretty in the weeds on why it's not. Okay. The First Amendment question posed in this case is somewhat unusual. Ordinarily, if a civil defendant challenges

an unfavorable verdict on First Amendment grounds, the issue is whether the jury impermissibly found the defendant liable for protected speech. But here, O'Keefe does not argue, understandably, that Kramer's fraudulent misrepresentation claims fail because the 22-year-old hottie had a First Amendment right to infiltrate democracy partners under false pretenses. Instead, O'Keefe asserts that Kramer's losses underlying the damages award for the fraud claim were approximately caused by the video that they ended up putting out and the story that Kramer was part of a dark money conspiracy to deploy trained agitators to Republican rallying events.

Oh, yeah, I forgot that part. They have him on tape saying that he intentionally instigates violence at Republican events. Great. Oh, what a peach. Yeah, everyone's a great person here. Yeah. And because the video's contents are protected speech, O'Keeffe maintains the First Amendment bars the award of damages unless Kramer satisfies the heightened burden of proof set forth in New York Times versus Sullivan.

Under that demanding standard, usually reserved for defamation suits, Kramer would have had to demonstrate that the content of the video was false, and that O'Keefe published it with actual malice. But it is undisputed that Kramer proved neither. O'Keefe continues, and thus the First Amendment bars recovery. So all three judges on the panel, David, agree that Kramer can't recover anything. Two of the judges say that, in fact, you set aside the jury verdict because it was First Amendment protected.

One of the judges said, no, you actually uphold the verdict, but only set aside the damages award. I actually think the one judge might have a good argument on that one, that this is actually justified over damages under New York Times v. Sullivan. But regardless, three judges and me agree that, no, your damages weren't caused by her being at your place, like digging through stuff. The damages were the release of the video

where you're saying bonkers things. Yeah. Again, that seems plainly correct. And what I like about these couple of cases, Sarah, is that it does show, I think, in an interesting way, how an enormous number of cases, including some cases over very publicly controversial issues, are really not that close a call in a lot of ways. And I feel like sometimes, and I was talking about this with some law students not long ago, that I think that the fact that when you learn the law, and when you talk about the law, you talk about only the top sort of top might be the wrong word, but maybe the 1% most controversial cases misleads you into thinking that the law is more unsettled than it actually is, that there is greater certainty in the practice of law than often, like if you had marinated legal podcasts, then you might think because the overwhelming number of cases, and I'm not going to put this one exactly in that

category, but it's adjacent to that category. The overwhelming number of cases, you've got some binding precedent there. You, one side is very clearly got the upper hand and the other side is pretty clearly grasping at straws. And this is a very normal part. In the felon voting case, the district court went the other way and said that they could be prosecuted. In the XX bracelet, the district court went the other way and said that they could be no trespassed from their girls' soccer game. And in this case, which I agree is actually just a little bit of a harder and more technically, legally, technically challenging case, the district court did not set aside the damages

on First Amendment grounds. So, like, we have unanimous panels at the appellate level, but the district judges all went the other way, which, you know, when you see some people say that, like, we should just trust the district court judges, and, like, that's why the interim docket is a problem or something like that. I'm like, I don't know, district judges are moving fast and breaking things.

I don't think these district judges are, you know, filled with malice toward the First Amendment, but all of them got unanimously reversed for insufficiently protecting First Amendment interests. So, yeah, well, I mean, absolutely the case is that you're going to find erratic rulings from district judges, which is why you have a court of appeals. And the Court of Appeals, hopefully, is going to be then much less erratic. And then you have the final layer, which is hopefully least erratic of all. And if it is, if it does change things, it does so in a way where it's, you know, reversing itself in clear and unmistakable ways with clearly articulated reasoning.

But I would say in my practice, 20 plus years, I would say, I never received what I would consider an erratic court of appeals ruling. Well, there's also a difference between one person and three people. really is some wisdom in crowds. And it's why, for instance, if someone were advocating for more Supreme Court justices because they don't think nine is enough to get that wisdom of crowds,

I am very open to that argument. I have heard total one person make that argument that 15 people would make better decisions than nine people and it has nothing to do with the sort of ideological valence of the nine current people. But like, I do think there's something to that, that when you have to sort of talk this out with other people, being a district judge can be kind of a weirdly, lonely existence,

even though they interact with more humans daily because they have trials and motions practice. But they don't interact with their colleagues. They don't get to talk about their cases that often. A lot of district courts have started having, you know, monthly lunches. But even then, you're not really talking about your case. You're not talking out the legal problems. Again, sometimes you might go down the hallway or something,

but it's not like a circuit court where it's literally part of the job. Well, and also, if you're a district court judge in the United States, and we have district court listeners, I'd be very interested to hear their perspective on this. You can go extended periods of time without having a serious First Amendment case. Like maybe your whole career. Yeah. I mean, you know, you can go months, years without a First Amendment case, without a heck. I mean, think about how many district judges are now to,

deciding like unitary executive type cases that were, you know, mainly issues for law reviews in the relatively recent past. So, you know, the district court judges have big dockets, hundreds of cases. They have real, if they're doing their job diligently, they have real pressure to get to a decision, decide the case. They are not overflowing of resources. And so I would say, you know, in my career of 21 plus years, I had a few erratic district court decisions, but it was a few. It was a few. Mostly, if the district court ruled, mostly when the district court ruled, that was going to be upheld. That was going to be upheld. That was the sort of the general momentum of the case. Not all the time. Obviously not all the time. One of my favorite cases I ever had, we lost summary judgment at the district court level and we reversed it at the circuit. But that was not one where the district court was erratic. It was Garcetti v. Sabalas where they had not decided professor of speech rights in that circuit yet. And so those are the kinds of cases that, you know, again, the district court judges are often kind of at sea if they

don't have any guidance from the circuit at all. Here's my question to you then, David. So we talked about four First Amendment cases. Three of which have been decided by the circuit level already, one of which is still at the district court. That's the fire student visa in the First Amendment case. Are any of these going to the Supreme Court? Are any of the outcomes changing? You get to go first. I do think the student visa case is going to go to the Supreme Court. 100%. That is the correct answer. Yes. I think that is going. I absolutely think that is going. I am mainly interested in that case. And I'm going to tell you, I'm not quite sure. it's going to come out because of the facial challenge aspect of it.

That's what makes it very interesting to me because we've had some recent cases, including the Net Choice case, husband of the pod, for example, where the facial challenge aspect is it appears as that the Supreme Court might be interested in narrowing the facial challenge regime. And if that is the case, then sort of all bets are off. if you're going to be talking about, we have a concrete case involving specific facts in which you have speech and only speech

from a person with a student visa for which they are being deported, I feel like the answer to that is going to be pretty clear if you, and approve First Amendment. But if it is a facial challenge to a statute, that one I'm definitely less certain about. Okay. here's my really nuanced take on that one.

So you agree that the other three cases aren't going to the court. No, I don't think so. No. I agree. Okay. So on this, I think that it will matter a lot who is on the Ninth Circuit panel. So, David, I think if this is 3-0 with the district court winning, they may let that pitch go by and wait for another version.

I do think it'll matter whether it's facial or as applied, et cetera. but like I think they might wait for a two one where you have a conservative judge in dissent that's basically writing a cert petition of sorts and making the best case for why the district court got it wrong. This could come in the form of the panel or en banc dissent from denial of en banc, the dissental, which you will get. But, you know, we've talked about the number one dissental winner as of the last time that a very helpful listener ran the numbers for me. Judge Daniel Collins is just hitting them

out of the park on these dissentals getting cert grants. I just think that's going to matter a lot. If I'm the Supreme Court, I want to see the best argument from one of my colleagues on the circuit court for why this is wrong before I'm interested in it. Otherwise, I'm going to let the pitch go by the plate. I don't. So like if they don't, for instance, seek en banc review, I don't think the Supreme Court takes it. If it's three zero without the en banc review, I think they're going to be like, yeah, this can come up again in a different circuit. But if you've got like a Collins dissental boy, then I think you're in for a treat. Yeah. I don't know if it's this case, but this issue. Yeah. I do think this issue goes before the Supreme Court. Yeah, yeah, totally.

You know, I don't want to be definitive in that. I mean, time could pass where there's a new president and all of a sudden a lot of these cases are mooted out because they're not doing deportation proceedings any longer. But the facial challenge, the invalidation of the statute, that's still out there. That's still out there. But yeah, it's a very, you know, it's a very interesting to me, Sarah, it's a very interesting philosophical discussion

about sort of what is the nature of this country and our constitution as far as like who gets to enjoy which rights. because, you know, the Declaration of Independence is not, we hold these truths to be self-evident that all American citizens are created equal and endowed by their creator. It's a universal human principle of legal equality within a constitution,

which doesn't all that often confine its benefits to citizens, but it does. Privileges or Immunities Clause in the 14th Amendment is of citizenship. And so there are certain restrictions and certain, obviously, areas in which citizenship really matters, but on many constitutional rights, there is no such restriction. And in fact, it refers to persons, people. And so which really does get to sort of what is the philosophy of the founding?

What are our rights rooted in? Are they rooted in our humanity? Are they rooted in our citizenship? And from the founding, our rights are rooted in our humanity. That is the default. We get our rights by being human living in the land of the free. We don't get our rights by being American and living in the land of the free. All right.

On the next episode, I have some Vacancies Reform Act updates for you. The Trump administration has gone eight for one on judges to have heard these cases. also an interesting 26th Amendment case. You don't get those very often. I can't remember when I've read one, Sarah. Never. Honestly. Yeah. Yeah. So that'll be fun. Funding conditions with a spicy Bumete descent from the Ninth Circuit. Then gun surveillance with a spicy Lee descent from the Ninth Circuit.

And then Loperbright, post-Chevron. Maybe it wasn't so conservative after all. Because actually it turns out not deferring to agencies, is it conservative or liberal? it's just reading the law. All right, all that more on the next advisory opinions. Two and five Canadians will hear the words you have cancer. That's why every step and dollar raised matters. On September 19th, join thousands in Toronto for the Princess Margaret Cancer Foundation walk.

Challenge yourself, friends, and family to walk 21 kilometers in support of life-saving research. Together, we can carry the fire and help create a world. free from the fear of cancer. Register today at pmcf walk.ca.ca. Don't you wish you could just hit skip on the worst parts of your life? You know the same way you can skip an ad? I get it. I'm Siaya and I live in Ice Cove.

I've made some questionable decisions that didn't end up the way I planned. And today I'm still figuring it out. Somehow things usually get worse before they get better. Apparently, that's how I roll. So bundle up and come along. for the bumpy ride. Don't miss the new season of North of North starting September 8th on CBC Gem.