Advisory Opinions - Hateful Conduct (But Actually Speech)

Episode Date: February 16, 2023

Former VP Mike Pence is challenging a special counsel subpoena. David and Sarah look into the “speech or debate” clause cited by his defense team and its merits. Plus, a challenge to Connecticut schools transgender policy, more social media and first amendment clashes, and a little love shown to the fourth amendment on this post-Valentine’s day episode. Show Notes: Pence to fight special counsel subpoena on Trump’s 2020 election denial US appeals court will rehear challenge to inclusive Connecticut transgender athlete policy Court Blocks N.Y. Law Mandating Posting of "Hateful Conduct" Policies by Social Media Platforms (Including Us) Volokh v. James Judge Andrew L. Carter's Wikipedia Page (for the photo) Banks Appeal, 7th Circuit Learn more about your ad choices. Visit megaphone.fm/adchoices

You ready? I was born ready. Welcome to Advisory Opinions. I'm your host, Sarah Isger, joined by host emeritus David French. And we have a lineup for you today. We're going to start with the special counsel investigation into Donald Trump and some hip happenings over there. Mike Pence, Evan Corcoran, one of Trump's lawyers, both trying not to testify. And will their arguments work? Next up, the Second Circuit announces that they're going to hear that trans athlete right to compete case on Bonk. Then we've got a social media First Amendment case, another one.

And finally, having your gun visible on Snapchat. What does that allow the police to do? We'll find out more on Advisory Opinions. David, let's start. Mike Pence is planning to resist special counsel Jack Smith's subpoena. This is interesting because I think everyone was expecting that to be on executive privilege grounds, but that's not what they did. They are resisting the subpoena on speech and debate clause grounds. The speech and debate clause, of course, being a near absolute immunity if you're a member of the House and the Senate. The speech and debate clause, of course, giving near absolute immunity in a lot of these cases to members of the House and Senate. But Mike Pence was a member of the executive branch. Or was he?

It turns out, as vice president, of course, he is also a deciding vote in the Senate. And funny enough, do you know who's made the argument probably more than anyone else that the vice president is protected by the speech and debate clause? That would be the Department of Justice repeatedly and many times over. David, just off the top of your head, thoughts, feelings on whether this will work, whether the speech and debate clause should protect the vice president. What do you think? Yeah, I would say it will work to a very limited extent. And we're not really reinventing the wheel here because remember, we actually talked before about Lindsey Graham and Lindsey Graham's efforts to avoid testifying in the Georgia criminal probe, relying on speech and debate clause, essentially that what he's doing is he's engaging in a legislative function by engaging in information gathering as part of his legislative function.

And so the 11th Circuit, her and nobody doubts that a senator, a senator is going to be immune or a senator is going to be subject to the speech and debate clause or benefit from the speech and debate clause. And so essentially what the 11th Circuit did is that it said, well, yeah, the speech and debate clause exists, but it's not a blanket shield from testimony. And so I'm reading from an article in Lawfare about the 11th Circuit ruling. It says in a six-page order, this is relatively recent, October of 2022, the 11th Circuit panel rejected Graham's emergency motion to stay. An August 19 district court order required him to testify before the Fulton County special grand jury, finding that Graham's claims of total immunity under the speech and debate clause were invalid. questioned Graham about phone calls as well as communications and coordination with the Trump campaign regarding its post-election efforts in Georgia, public statements regarding the 2020 election, and efforts to cajole or exhort Georgia election officials. The panel, however, found that

Graham can still assert the speech or debate clause privilege in response to specific questions about his phone calls that he feels may be probing investigatory conduct. So if you take the 11th Circuit as kind of the leading statement right now on speech and debate and investigating this election steal effort, no blanket immunity, and that's for a senator. So here we have a vice president who is most of the time not in his president of the Senate role. The president of the Senate role is an aspect of his tenure as vice president, but he's still a member of the executive branch. So I'm going to predict, Sarah, that it's going to have some merit, but not grant him blanket immunity. And the some merit is going to be very, very, very narrowly focused on the specific role as president of the Senate on January 6th and won't be extended into preventing him from testifying on things he saw or witnessed surrounding the entire election steal effort. But that's me.

That's what you would call reasonably informed spitballing based on a lower court ruling. I find this super fascinating, A, because, you know, oftentimes we talk about Office of Legal Counsel, OLC opinions at the Department of Justice that have some legal force because they are kind of the law professors. They're actually in some ways a court within the executive branch. They resolve disputes between agencies, for instance, and things like that. But in this case, the fact that the Office of Legal Counsel and filings from the Department of Justice have argued that the vice president is covered by the speech and debate clause is so wholly in the executive branch's interest because it's only

this immunity that would be helpful in these contexts that you almost have to toss. It's almost more of a brief from one party than it is a, you know, on the one hand, on the other hand, you know, respected legal opinion. Okay, so A, I'm tossing out that DOJ has done this, though nevertheless, it is funny, and it's going to be funny for the Department of Justice, who as recently as 2019 was arguing this, to now go and argue against it. My guess is that they will do exactly what you just said, David, and argue against it. My guess is that they will do exactly what you just said, David, which is say, yeah, yeah, sure. It applies like the 30 seconds he took the vote is when it applies.

You know, they'll just try to narrow it in this case. But there's so much more that's fascinating about this. A lot of people are saying they think this will go to the Supreme Court. I I sort of doubt it will. I think it'll get resolved before that happens. But certainly it hasn't been decided at all at any point. And what is the vice president? You know, you go to the U.S. Constitution and in Article 2, where the vice presidency you'd think like exists, there are absolutely no duties or responsibilities of the vice president aside from becoming president in the case of death or disability, basically. However, Article 1, as you said, David, the vice president shall be the president of the Senate. That's like an actual job. Now, he only gets a vote if it's evenly divided, but he has like a title, an office, a job.

What is this hybrid? What happened to the separation of powers? This is it offends me that the vice president exists as such. So I think there's a lot of problems with applying the speech and debate clause to the vice president. And I might argue that, in fact, in light of sort of a separation of powers argument, the vice president exists as a creation of the executive branch, and therefore it doesn't apply even when he is executing his role as president of the Senate. I know because otherwise, David, what are legislative duties? It is that every time he's on campus on the Hill, is it only like how are you going to define that and limit it in scope? I think that's and I think January 6th is a perfect example of how messy that gets. I think that's and I think January 6th is a perfect example of how messy that gets.

He was both the vice president in the executive branch, clearly, and he was also the president of the Senate. It was a ministerial role, but ministerial legislative role. Yeah. Messy, messy. Yeah, extremely messy. And especially considering that a big part of this dispute about January 6th is that he was receiving strong counsel, if that's what we want to call it, from John Eastman et al., that he didn't just have a ministerial role, that he had, in fact, almost a super legislative role and an ability to sort of unilaterally intervene in the process in an extraordinarily dramatic way, in a way beyond a committee chair, He has the most important role of the day, which obviously Trump fully absorbed because as Pence is doing the ministerial task to which he's been assigned, Trump tweets, of course, during the middle of it that Pence didn't have what it took to execute the scheme

and which obviously further to execute the scheme, and which obviously further inflamed the crowd, further put his life in danger. But yeah, it's a very, very messy situation. And can I go back to your comment about the OLC opinions for a minute? Yes, although I wanna do one thing. Before we go on, all of you people writing comments right now and emails to me, yes, yes, I know, we one thing before, before we go on all of you people writing comments right now and emails to me. Yes. Yes. I know we've gone over this before speech or debate is what it is listed

in the constitution. Do not, do not write emails about that. Please continue to have we been saying speech and debate the whole time? I don't know, but I use them interchangeably. We talked about it before where like, I think it, the text is speech or debate, but I call it the speech and debate clause. I get it. I know. It's weird. I do the same thing. I do the same thing.

So it has long been understood based on two OLC opinions that sitting presidents are not amenable to indictment and prosecution. There's something that has always bothered me about those two OLC opinions, Sarah. And let me give you the dates of those two OLC opinions, and you tell me what bothers me. The first one was 1973. The second one was 2000. The second one was 2000. So who were the two presidents who were in office when the Office of Legal Counsel decided that presidents are not amenable to indictment? Nixon and Clinton.

Yeah, two presidents who were contemplating their indictment. Yes, yes. I do not view that issue as settled, but others may disagree. It's certainly not settled. I think that that it has some good arguments behind it. I personally subscribe to those arguments that you need to impeach a president before you can indict him for all sorts of like he is the executive branch. So I don't think the executive can indict him. And then in terms of states, we don't like there's a, you know, of the horizontal and vertical separation of powers. I think there's also

a vertical separation of powers issue there of states not being able to indict a sitting president until he's been impeached. There's just good reason for that. But I agree with you that the OLC opinions in those two situations were self-interested, let's say. I'm just going to call them the Nixon and Clinton OLC opinions from now on. Yeah, I mean, fair enough. So I want to read the section of the Constitution, again, things we've done before. The senators and representatives shall receive a compensation for their services to be associated by law paid out of the treasury. They, that pronoun antecedent is the senators and representatives. They shall in all cases except treason, felony and breach of the peace be privileged from arrest during their attendance at session of their respective houses.

during their attendance at the session of their respective houses, and in going to and returning from the same, and for any speech or debate in either house, they shall not be questioned in any other place. So David, if you want to get super textual about this, it says senators and representatives, not the president of the Senate. And I'll just read that other, you know, section four there. The vice president of the United States shall be president of the Senate. And I'll just read that other, you know, section four there. The vice president of the United States shall be president of the Senate, but she'll have no vote unless they shall unless they be equally divided. So he is not listed as a senator representative. Two, that absolute privilege from being questioned is for any speech or debate. That's where the ministerial function of January 6th might be relevant. It wasn't a speech or debate,

and Pence said he didn't have the right to speak or debate the issue. He was there to open envelopes and count, basically. And so if it was only a ministerial function, I think that's interesting. The third question that I think is interesting is whose privilege is it? And we've talked about this in the executive privilege context a lot. Is it the president, meaning it follows to a former president? You and I have argued no,

with maybe some asterisks. Mostly no, though. Here, what about the speech or debate clause privilege? Does it belong to the individual senators and representatives or does it belong to the institution? And this is all pretty important because who can waive it? So if the court finds that Pence, for instance, is protected by the speech or debate clause, can Pence waive it? Now, maybe this is academic because Pence clearly doesn't want to waive it if he's invoking it. But it's actually also an unresolved question. Like, could someone else object if Pence decided to testify if he were covered by this? That's all to say, David, I think you think Pence is covered by the speech or debate clause in a limited context. I think he's not at all. You know how much I like a textual argument, And that's a pretty darn compelling textual argument.

Thank you. Congressmen and senators and then they, you know, the the Pence counter would be when I am president of the Senate and participating in the functions of the Senate, casting a vote as a senator, you know, my vote is counted as the equivalent as a senator, that that's where I'm getting my very limited, very emphasis on very limited context that the speech or debate clause when he is president of the Senate, a title within the Senate, and performing within that function specifically. That's why I don't think he's going to have even the degree of flexibility that, say,

Lindsey Graham did, where Lindsey Graham might say, well, I'm doing a lot of fact-finding. Well, Lindsey Graham serves on committees. Lindsey Graham does, you know, the classic kind of committee work. None of that, you know, none of that applies to Pence. Pence isn't a tie-breaking committee vote. I mean, you know, committees have odd numbers anyway. But so there's just, it's just a very, it's a different thing. And so the question would then be when he is in that very limited mode, does he count as a senator? He certainly counts as a Senate vote in very limited circumstances. But yeah, Sarah, you know, I think your textual argument is quite strong. It's quite strong. But history and tradition is on your side. So we'll see. And you know I prefer text to history and tradition.

So next topic, also part of this Jack Smith investigation, but a different part. So the Pence subpoena is about January 6th. And remember, there's three parts to the special counsel investigation under Jack Smith. One, January 6th. Two, classified documents. And three, obstruction related to the classified documents. So moving on to parts two and three, Jack Smith is also looking to speak to Evan Corcoran, one of Trump's lawyers related to that classified document stuff. Evan Corcoran declined to answer

some questions, citing attorney-client privilege, as you do. And the Department of Justice is saying, not so fast. We want to invoke the crime fraud exception. And David, we have talked about this before in the context of John Eastman. In a civil action out in California, a judge found that John Eastman's communications with the president met or were likely to meet that crime fraud exception and some notes about the crime fraud exception. You have to be. There has to be some evidence that you were using your lawyer's advice in furtherance of a crime. It doesn't need to be that the lawyer knew their advice was going to be used for that, that the lawyer is part of the gang, if you will. They can be, but they don't have to be.

Just that that advice was being used. And David, I am curious what you think about this writ large. I mean, this appears to be mostly on the obstruction stuff that Evan Corkin was providing advice around the time of, for instance, signing that letter by one of a different lawyer for Trump that said that they had done due diligence. They looked everywhere. There's no classified documents. That looks like it's what these questions are about. And then I just have a bigger picture question for you about something that you and I talk about on this pod a lot, which is bad facts, bad plaintiffs, bad whatever makes bad law. quote unquote, bad or even wrong, but that we wouldn't have needed to make it. And that perhaps with different facts, courts might have come out differently. Judges are human. You're dealing with the facts you have and the sympathies and what they are. And I think for whatever reason about

the Mazars case, and note listeners how I just pronounced that correctly after our legal eagle listener, former general counsel for Mazar's corrected me. The pretty good authority, I thought, on how to pronounce it. Never going to get it wrong again. So that was the case about getting Trump's tax returns and the sort of legislative privilege. It's just something that hadn't been decided before. And the courts are like, yep, if Congress has a legislative purpose, they can do it. And I've thought about this a lot of

that wouldn't have been decided but for Trump. One could imagine a different scenario where Congress looks really unsympathetic and this other private person, not necessarily even the president or maybe someone else in the executive branch, who knows? It's a total witch hunt or whatever. I don't know. And when it comes to attorney-client privilege, I guess I said yesterday or on the last episode that I thought we should sanction more lawyers and disbar more lawyers. So you might think that I think that attorney-client privilege should be weakened, but I don't I think that attorney-client privilege should be weakened, but I don't. I think attorney-client privilege should be really sacrosanct. And I am

not liking all of this crime fraud exception stuff. Now, I want to be clear, this is a sealed thing to this judge. And so we're not seeing the evidence. For all I know, there's a smoking gun and the smoke is billowing out of the gun. But I don't I don't like all this piercing. I'm with you and I'm certainly with you on attorney client privilege with the same caveat that we're operating behind the veil of ignorance here. So it could entirely be the case that if we saw the evidence because I'm I'm because I'm strongly in favor of a narrow crime fraud exception. The near fact that you have your lawyer in the room, for example, when you're planning your bank robbery. So I'm in favor of a narrow crime fraud exception. And for all I know, this fits

exactly within it based on, you know, we just don't know. We don't know the evidence. within it based on, you know, we just don't know. We don't know the evidence. But I will say this, Sarah, and let me bring up a name I just brought up, Bill Clinton. So in the Clinton years, when he was under multiple investigations, he was in a habit of erecting basically every kind of privilege argument you could possibly conceive of or make. Sorry, I'm still giggling over erecting. Yeah, that's bad. Okay. He was erecting what?

I was going to say mounting, but there's problems there. Okay. He made almost every kind of privilege argument you could conceive of. And so there was law made during the Clinton era. There was law made during the Nixon era. And when you have, you know, there is this strain that is put on the system by presidential misbehavior that is just different than the strain put on the system by the misbehavior of virtually you know, I think that the Nixon, the prime Supreme Court Nixon and Clinton cases were rightly decided that that presidents can be subject to legal process while they're in office. I think they were rightly decided. But when you put the system under strain, that's when you often get exactly the kinds of decisions that you were talking about. That's when you often get exactly the kinds of decisions that you were talking about. And that allows me to beat my drum. It's not that I disagree with any of them, I think. It's just that I'm nervous 10, 15, 20 years from now or how they would have been decided differently.

I don't know. It's a little bit of the unknown. Yeah. No, I agree with you. I think I don't have a case right now that I can look at and say, this put the system under such a strain that it produced a bad outcome from now and in the future. I'm largely in support of the precedent that's been generated. But I'm with you. the way in which various theories of the power of the executive branch have been left sort of unresolved and not fully defined, we're in danger of some real, truly problematic precedent emerging from that kind of strain and that kind of tension.

So I'm with you. And it just allows me to circle back and one more to say one more time with feeling character matters. It really does. And often for unforeseen and unforeseeable reasons. But this one is not just foreseen and foreseeable. But other than that. All right, let's move to the Second Circuit. So David, you and I talked about this case that was decided by a three-judge panel at the Second Circuit. This was the Connecticut's law, which allows someone to compete on the athletic team that matches their gender identity. identity. And the result of that is trans women, i.e. people who were born male and have transitioned to be women, competing against natural born women. And the Second Circuit tossed out the case. Now, there were several ways in which they tossed it out, if you will. You know, there was standing issues. They argued that the girls had already graduated high school. But the part, of course, that we found most interesting was the rejection of the right to be champions, that it was only a right to compete. And as long as you were able to compete, which nobody questioned that the girls were able to compete, they were just competing against men, potentially, that that didn't violate Title IX.

And you and I criticized that by saying, like, yeah, but then why do we have Title IX? What does that even mean? And why have a women's team at all, if that's all it is, is a right to show up to the track meet? Great. But we also talked about how difficult this was, because Title IX also, after Bostock, presumably protects someone from being discriminated against their gender identity. So then do you need a separate team for just trans students? I mean, how would that all work under Bostock? All right. So I think you and I both agree that this was likely to continue as a case.

And indeed it has, but not the way that I thought. has, but not the way that I thought. So the en banc court of the Second Circuit will be sitting to hear this case. And David, I want to do some really complicated math for you to tell you why this surprised me. First of all, the Second Circuit rules, which are very similar to most circuits, state that for a case to be voted to be taken on bonk, you need a majority of the active judges. They're the only ones who get to vote on that question. There are 13 active judges on the Second Circuit. Six were appointed by Republican presidents, for those who are curious. The rest were appointed by Democratic presidents, which means that you had at least some bipartisan appointment to get that majority. David. In the en banc vote itself, it is a majority of active judges plus any senior judges who were on the panel. And guess what? Two of the three judges on the panel were senior. And so that actually increases the number on the, not to take the case en banc, but to win the case on Bonk, but to win the case on Bonk, you know, have 15 judges. So you need

eight judges to win the case on Bonk, both of whom, you know, the two additions, at least, you know, we know how they voted on the panel. Why are we doing this? Why did the losing side in this case represented by ADF, Alliance Defending Freedom, why bother going on bonk at all instead of just heading to the Supreme Court? That is a really good question, Sarah. I don't know the answer to it. And that math is fascinating. You know, if it's six and seven, then you can be and the vote has been taken. You can be pretty sure that you're you're walking in with a good sure that you're walking in with a good chance. You're walking in with a good chance. But that is fascinating math.

That is absolutely fascinating math. I would be very interested in listener commentary on this. And I know we have some ADF listeners. If there's some thoughts as to why that occurred, that would be fascinating. But you know what? Here's one simple reason, Sarah, why they could have gone en banc is quite simply, they just weren't confident about cert. And this doesn't prevent you from going to the Supreme Court. You can lose en banc and then go to the Supreme Court. Many en banc cases will go to the Supreme Court. So it doesn't prevent it. Skipping it, you're right, it just costs you a chance to win it percolate for a bit. And, you know,

it impacts a really small number of people, even though the actual legal principle is pretty darn consequential. The real world impact is really quite small. So, yeah, this could be the kind of thing that they just would wait on. And what's the harm in going on bonk. And in a sense, Sarah, maybe the idea that if you go on bonk and you have a very sharply divided loss, does that bolster your cert case? I mean, this was something that the Second Circuit thought was important enough for on bonk. And maybe the arguments or maybe something about the opinions can help you bolster a cert petition. But I would say this, I bet you real money, real money if they went en banc, the Supreme Court does not take the case. Absolutely agree with that. I think that also

some of the reason to try to go en banc, even if you think it's an uphill battle, is to encourage the Supreme Court to take it. A, you have what I think is a pretty egregious panel opinion because it just doesn't make sense. The right to compete thing is so orthogonal to Title IX. So you can get an egregious majority opinion that might anger some Supreme Court justices and help. But more importantly, you might get a really good dissent. And it's not just that the Supreme Court is more likely to take it in that case. I don't think they necessarily are, but it provides them. It's like an extra set of briefs. It's like the best amicus brief you could have is another really smart, well-respected judge telling the Supreme Court, here's what I found,

here's the research that I did. And we see this a lot, for instance, with Judge Sutton's opinions. In his dissents, the Supreme Court loves a Sutton dissent or an O'Scanlan dissent. It's like little wave to the Supreme Court. It's like, aha, one of our very smart brethren has said this came out wrong. And the Second Circuit, you know, Michael Park is on there. I'll bet dollars to donuts we get a dissent from Steve Manaschi. We'll see. It will be very it's going to be very interesting. And like I said, if they went on en banc, this is exactly the case that Supreme Court would be happy not to take. All right, David, we have an SDNY opinion that is interesting. This is on New York's

hateful conduct law. First of all, right off the bat, when you name it the hateful conduct law, just sounds Orwellian to me. And indeed, I think this one was. Because this hateful conduct law is all about speech, not conduct. First, let's define hateful conduct under the hateful conduct law. Hateful conduct is the use of a social media network to vilify, humiliate, or incite violence against a group or a class of persons on the basis of race, color, religion, ethnicity, national origin, disability, sex, sexual orientation, gender identity, or gender expression. So incite violence, that could be hateful conduct, but vilify or humiliate is certainly speech. But vilify or humiliate is certainly speech.

The judge separating this says, thus the hateful conduct law requires that social media networks create a complaint mechanism for three types of, quote, conduct. One, conduct that vilifies. Two, conduct that humiliates. Three, conduct that incites violence. This, quote, conduct falls within the definition, the law's definition of its aim at a group based on all of those groups. The hateful conduct law has two main requirements. One, a mechanism for social media users to file complaints about instances of, quote, hateful conduct.

And two, disclosure of the social media network's policy for how it will respond to any such complaints. The law requires the social media network to provide and maintain a clear and easily accessible mechanism for individual users to report incidents of hateful conduct. The mechanism must be clearly accessible to users of such network and easily accessed from both a social media network's application and website and must allow the social media network to provide a direct response to any individual reporting hateful conduct informing them of how the matter is being handled. Second, a social media network must have a clear and concise policy readily available and accessible on their website and application. This policy must include how much, sorry, how such social media network will respond

and address the reports of incidents of hateful conduct on their platforms. So David, this is a little different than the social media bills we've seen before because they're not requiring that the platform take it down or requiring them to do anything in particular. What they're requiring

is that they have a reporting mechanism that it must allow them to respond directly, that reporting mechanism, and two, that they have a policy that everyone can see about this definition of hateful conduct and what they're going to do about it. Just a policy. Your policy can be, we think hateful conduct is great and we support it and we're going to leave it up. But you are, you have to be allowed to report the hateful conduct that we're definitely going to leave up. And our policy is we like hateful conduct. That would meet this hateful conduct law. Nevertheless, David, judge in SDNY strikes it down. What say you? Yes. Obama appointee judge strikes it down. And what I say is that was the easiest decision

you can imagine. I was talking about in last podcast, I said that Ron DeSantis has gone after the First Amendment like a Viking berserker. That phenomenon is not exclusive to Ron DeSantis. We recently had a conversation about a misinformation law that was enjoined, an anti-misinformation law that was enjoined in California. We now have a social media law, another social media law enjoined in New York. And there is a spreading disease of attempted speech regulation. And the reason why I said this was an actual easy case is you've created a regulatory burden on a social media network that is directly related to the content and the

viewpoint of speech. And that is where you're going to have some of the highest levels of scrutiny applied. This is where you're going to be running straight on into Supreme Court precedent that very clearly says you can't really take a category of speech, call it hateful, and apply additional punishments and certainly, in this case, regulatory burdens attached to it. And the reason why is really pretty clear. So let's leave aside incite violence for a moment, which there'd be a really interesting question about proof there. How do you prove that a social media post incites violence?

Let's leave that aside for the moment. And let's just presume for the sake of argument, they're talking about Brandenburg style, you know, inciting of imminent lawless action. But let's look at vilify and humiliate. So vilify and humiliate. One thing that's absolutely clear is that you do have the ability, even if it is profoundly immoral, you have a there is a constitutional right to vilify another individual, denigrate. We talked about the word derogatory in North Carolina in the previous podcast. The ability to vilify another individual, that is constitutionally protected expression. And then the other word here, humiliate, is an interesting term constitutionally because it is also quite subjective. So in other words, what is or is not humiliating is often in the eye of the recipient. And so one of the fundamental problems that existed with speech codes is that they would use words like humiliate or a word that like offensive, that is generally a term that doesn't have an

objective meaning. It has a subjective meaning. When are you humiliated? Well, when I feel humiliated, when is speech offensive, when I feel offended. So if you're ever going to rest my constitutional right to speak in the subjective feelings of another person, then you're going to have a major constitutional issue. So this law was just running straight into the headwinds of controlling precedent. And it's not remotely surprising that it was enjoined by a federal district court. And you feel like they got the sense that this was flying into constitutional headwinds because they didn't allow for the punishment or they didn't mandate the punishment of, quote unquote, hateful conduct, but they mandated the existence of procedures surrounding hate, so-called hateful conduct, which is really hateful speech in their formulation. a great teaching tool for all of those folks who walk around saying the Constitution doesn't protect hate speech. This is a reminder, A, that the Constitution does, in fact, protect what you

might call hate speech. And B, one of the reasons why the Constitution protects what you might call hate speech is because the definition of what is hateful, so hateful as to be sort of lacking of any merit for constitutional protection, it's really tough to define that. It's really tough to define that. And therefore, the Supreme Court is going to put, I mean, the First Amendment puts its thumb on the scales in favor of free speech. And you know what doesn't transform something into not First Amendment protected speech? Calling the speech conduct. Right. I feel like they thought they were really clever. Like, no, no, no. This is the hateful conduct law. We called it conduct. It's not protected by speech. So first of all, this opinion by Judge Carter is really well done. The opening of it.

Speech that demeans on the basis of race, ethnicity, gender, religion, age, disability, or any other similar ground is hateful. But the proudest boast of our free speech jurisprudence is that we protect the freedom to express the thought that we hate. He was quoting there Justice Alito's majority opinion in Mattel v. Tom. That was that trademark case where the band The Slants was denied a trademark because it was seen as disparaging to a group. And the Supreme Court struck that down and said, nope, that violates the First Amendment. And it was a really interesting case that we talked about at the time. So that's how we opened the opinion. And by the way, if any of y'all are Wikipedians, I just want to note that Judge Carter's Wikipedia page picture is hilarious. He's basically it's like a sort of grainy photo of him making the shrug emoji face. It's great. of grainy photo of him making the shrug emoji face. It's great. Maybe we could find a better picture of Judge Carter, maybe like on the bench or speaking somewhere. But yes, I second everything

you said, David. But I just I did find this interesting because they weren't regulating what the social media platform had to do with the speech. But nevertheless, and this is again reading from the opinion, clearly the law at minimum compels plaintiffs to speak about hateful conduct. As plaintiffs note, this compulsion is particularly onerous for plaintiffs whose website have dedicated pro-free speech purposes, which likely attract users who are opposed to censorship. Requiring plaintiffs to endorse the state's definition of hateful conduct forces them to weigh in on the debate about the contours of hate speech when they may otherwise choose not to speak. In other words,

the law deprives plaintiffs of their right to communicate freely on matters of public concern without state coercion. And interestingly, David, do you know what case he was citing for some of that? Back to that NIFLA case, the abortion poster case. So it all came full circle. I also wanted to mention one of the plaintiffs in this case is Eugene Volokh. You may know him from the Volokh conspiracy, Reason blog, etc. He published a law review article advocating for social media companies to be covered as common carriers, which is sort of fascinating that he then brought this lawsuit. They're not contradicting each other, but nevertheless, this lawsuit is striking down a regulation on social media platforms that sought to control their speech.

And at the same time, he's advocating for social media companies to be treated like common carriers, which would prevent them from controlling the speech that's on their platform. That was interesting. Seeing Eugene as a lead plaintiff in this case was fascinating to me. But as you said, the whole opinion is just very well done, very well written, a very clear explanation of the law regarding hate speech, the law regarding compelled speech. With copious citations to recent free speech cases by the Supreme Court of the United States. free speech cases by the Supreme Court of the United States. This is, look, if you're going to be, unless you're in the Fifth Circuit, which is sort of extending the double bird to the Supreme Court right now, Sarah, on this issue, the ability of the state to regulate speech on social media platforms so far does not have a good record at the court. And it does not have

a good record at the court because it flies in the face of an awful lot of Supreme Court precedent regarding regulating speech, regulating speech activities by private corporations. And so this is the natural and normal application of decades of precedent. And if the Supreme Court is going to permit major speech regulations on social media platforms by the government, it's going to have to depart from its own precedent. Also, bad news for Professor Volokh that in winning this case, the 11th Circuit's net choice opinion that was on that Florida social media bill that was struck down. He cites that and says, additionally, plaintiffs had an evidence, plaintiffs and plaintiffs again, remember Eugene Volokh, the guy who wants social media companies to be treated like common carriers.

Plaintiffs have an editorial right to keep certain information off their websites and to make decisions as to the sort of community they would like to foster on their platforms. and to make decisions as to the sort of community they would like to foster on their platforms. It is well-established, although I think it's funny that the well-established comes from this 11th Circuit decision where the 5th Circuit is exactly at odds with it. It is well-established that a private entity has an ability to make, quote,

choices about whether, to what extent, and in what matter it will disseminate speech. Net choice versus Attorney General of Florida, 11th Circuit, 2022. Yeah, very interesting. Very, very interesting. And hey, look, if you want to dive in and read more, this is a great case for diving in and reading more. And we'll take a quick break to hear from our sponsor today, Aura.

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All right, last up, this was an interesting and quite unanimous case from the Seventh Circuit. Judge Sykes, Scudder, and Lee, that's a nice lineup at the Seventh Circuit. So in April 2021, a Springfield police officer saw a Snapchat post of Jeremy Banks barbecuing on his front porch with a gun sitting on the grill's side shelf. Because Banks was a convicted felon, the officers needed nothing more than to request a warrant to arrest him for his unlawful gun possession. But they skipped that step and instead proceeded to Banks' home, walked onto his porch, and after a tussle, arrested him in the family room. The Fourth Amendment did not prevent the shortcut, as the Supreme Court has held in no uncertain terms

that a front porch, part of a home's so-called curtilage, receives the same protection as the home itself. And no exception to the warrant requirement saves the officer's actions here. We therefore reverse the district court's denial of Banks' motion to suppress. David, little Fourth Amendment love here at the end. What'd you think?

Yeah, I thought this was exactly a correct decision. The sighting of the gun created the probable cause that would allow you to go get the search warrant. It makes it a slam dunk search warrant. You can just walk, you walk in and you say, I watched a Snapchat story or whatever it was, and this felon had a gun by him. We would want to search. Yes, absolutely.

The fact that you saw the gun didn't create the kind of exigent circumstances that would allow you to escape the warrant requirement. It gave you the grounds to seek the warrant. It did not give you the grounds to escape the warrant requirement. Now, I could easily imagine Snapchat stories that provide exigent circumstances, which indicate some sort of imminent violence. Absolutely. But from the story, it appears you just had a dude messing around with his grill with a gun in the vicinity. There did not seem to be any emergency. There did not seem to be any exigent circumstances. So I thought it was a really good decision. And then also, my gosh, criminals.

Here's some free legal advice. Don't do the crimes on Snapchat. Yeah. I mean, cops can see it too. Like this is not something that's double secret. You're not you're not sending this on some encrypted communication telegram or wicker or something like that. I mean, come on. Come on.

I am confused, though, because Snapchat, you've got to like you snap stuff to your friends. How did the officer see this on Snapchat? Clearly, I'm not great on Snapchat. I'm I'm on Insta more. I miss TikTok a lot. Like TikTok would have made a lot of sense to me. Well, you know, one thing didn't didn't we have the Snapchat case? BL, the angry cheerleader. And yeah, but she was sending it to her classmates and then they sent it to other people, I guess. Yes. You're right. Yep. Yep. Yeah. Well, there's a nice little ending here.

The big picture takeaway from today's decision deserves underscoring. The police could have avoided this outcome by taking a small but necessary step. The suppression testimony confirmed the Sagamon County, where Springfield is located, has a judge on call 24 hours a day, 365 days a year to consider an issue search warrants. The officers here had more than enough to pick up the telephone, call the on-duty judge, and get the authorization the Fourth Amendment required before stepping onto Banks's porch. A good discussion on reasonable suspicion that like, for instance, if you saw that Snapchat and it was him on the sidewalk or something carrying a gun, it's very different for frisking than, for instance, stepping onto someone's home,

which is so explicitly noted in the Fourth Amendment requiring that warrant and probable cause. And that's what the warrant's for. So reasonable suspicion, not probable cause, even if your reasonable suspicion is the gun is literally on Snapchat. Hi, I'm reminded of our fun discussion over the Netflix documentary about the college admissions scandal where the police flip the architect of the scandal. So then get him to go ahead and call back all of the people he's crimed with and just like go through this whole thing of, you remember how we crimed? Do you? Do you?

If they just are like quiet about it. No, we crimed, right? I want to hear you say we crimed. And people eventually just went ahead and admitted to their criming, but making it all easier. All right. Last up, I want to do a quick plug.

We have a book club at the dispatchpatch, and I am in charge of the book club. And as such, I rule it with an iron fist, which won't surprise anyone. I don't really, I don't read one-off books. I like reading books in a theme. And so this quarter's theme is the 1920s. And the first book we are reading is called American Midnight, The Great War of Violent Peace and Democracy's Forgotten Crisis. David, it's like a book written for the Advisory Opinions podcast. I'm talking to the author later this week. We're going to post the conversation in the book club. This is for dispatch members.

So become a member if you want to hear the conversation. I will tell you, I might have gone into this book with relatively low expectations. I was wondering how sort of a more liberal historian, for instance, was going to treat Woodrow Wilson and the progressive era. Fascinating. If you are a lawyer or law adjacent or legal curious, especially about First Amendment stuff. Boy, is this the book for you. So much detail about the trials of the Wobblies, you know, these labor folks about the Espionage Act. All of the people arrested during World War One for speech, for just your speech. for speech, for just pure speech. And kept in jail after World War I and arrested after World War I. As well as the, you know, speaking of common carriers,

one of the laws allowed the U.S. Postmaster General not to send things in the mail that he thought were, you know, not good. So all sorts of newspapers were all but banned because the Postal Service wouldn't deliver them. Lawyers' letters, like defense attorneys' letters, were often not delivered by the Postal Service under the same, you know, sort of wartime idea. And it doesn't paint Woodrow Wilson in a good light. idea and it doesn't paint Woodrow Wilson in a good light. Yeah. You know, I have noticed there is now a lot of progressive consensus. Whenever I talk to anyone, law professor,

you name it, about Woodrow Wilson, there is no longer any lingering affection for that dude. Like it, it is over. Even on top of the racism and the eugenics stuff and like just sort of the speech stuff, he also just wasn't a very good manager. So, for instance, he sent a letter to the postmaster general. He's like, so we should probably stop doing that now, I guess. And the postmaster general ignored it. So he sent another letter that was like, don't you think we should stop? Postmaster General ignored it. And he just never followed up.

And he did that with his Attorney General. He would constantly ask things as questions or suggestions. And they'd be like, thanks for the suggestion. No, thanks. And keep doing exactly what they were doing. So even if you liked some of his policies, he wasn't good at implementing them. This was a government run wild. You know, there's this conversation to be had about the problems, for instance, with fill in the blank, capitalism, democracy, whatever you want.

And I actually think this book's really interesting on that point because I can talk to you all day long about the problems with various systems. All systems have problems. But the question is, what replaces it? And here you have the progressive era, I think, really laid bare because what replaces it is government and experts, quote unquote, and a lack of accountability. And it turns out, not surprisingly, that experts and government, when they get together, don't like being criticized. And that's how you get thousands of people thrown in jail for their speech trials that are at one point, there's 112 wobblies on trial. There's only four defense attorneys. The judge is wandering around the courtroom looking for good views. The jury

deliberated for, I don't know, half an hour and found them guilty on all counts for all 112, despite the fact that evidence wasn't presented on all 112. I mean, yeah, this is a really dark time. And yet there's something really hopeful about it, David, because that's 100 years ago. And you talk about this all the time. Our speech protections are so much stronger. Our religious protections are so much stronger. Our religious protections are so much stronger. So much about this country has gotten not incrementally better, but it has gone down and come back up again better at certain points as well. It's not heading in one direction. There's no arc of history in that sense. And that's good

news if you think that you don't like what's going on now, things go down and back up. Yes. Well, and the other thing, this is a very good reminder of why there's an argument. I think I've seen it on the left. I've seen it on the right that to actually truly protect free speech, we need to give the government more power over speech. So like we don't like Twitter's moderation policies. Let's give the government power. Or we don't like that, you know, to use the second, the case out of the Southern District of New York that we just talked about. We don't like the way they deal with hateful conduct, so to speak. We're going to give the government more power. Guys, this is what happens when you give the government more power over speech. It's it is not the case that they then become your knight in shining armor to come in and provide you with all of the protections that you want from all of your enemies. No, no, no, no. When you grant the government more power, you cannot predict how it will use that power.

What a great reminder about whatever the institutions you think you control today won't be the ones you control tomorrow. So many examples of conservative university administrators cracking down on liberal, you know, law professors or, you know, just the exact reverse that you have now. Aha! It turns out. Don't back today's authoritarian because they're on your side. Exactly. So anyway, it's this great book, American Midnight. We'll be talking about it.

If you're a member of the dispatch, join the book club. If not, think about joining because this is good. Our next book is on the election of 1920, by the way. And then we're going to read like one of my favorite books by Bill Bryson, where he does the summer of 1927. It's really, really fun. All right. With that, David, another pod in the books.

Very honored to be the host emeritus, Sarah, and just follow this ship wherever you guide it. Yeah, we're just so pleased that you pop in from time to time. Very happy to do it. Bye. Thank you.