Advisory Opinions - Is That a Mein Kampf in Your Pocket?

Episode Date: January 31, 2023

Have you been feeling too optimistic about the state of free speech recently? Don’t worry! For AO’s 300th episode (!), Sarah and David wade through some of the latest, most migraine-inducing attempts to stomp, quell, restrict, and penalize free inquiry and expression. On the docket: -SCOTUS update. -In Texas, an influencer-slash-journalist brings together right and left in defending free speech against qualified immunity. -California really, really wants to ban “misinformation…” Now, if only it could figure out how to define it… -Hamline University’s getting sued… for religious discrimination? -Reading Hitler’s memoir can get you in trouble at Stanford. Learn more about your ad choices. Visit megaphone.fm/adchoices

Just say at the moment, if there's a thud, just say, I apologize if you hear any thuds. I'm dragging a body while I do the podcast. Multitasking. Multitasking. I'm particularly interested in the grand jury cases right now for unrelated reasons. Unrelated.

Don't worry about it. Don't worry. Welcome to the 300th episode of Advisory Opinions. I am your new host, Sarah Isger, joined by David French, who has no title whatsoever on this podcast. I mean, we're happy he's here, but like, what are you, David? You know, you tell me, because the tanks have rolled through the town square, the coup has been completed, and now, like, I just am awaiting your judgment. Like, that's my position right now. Good, good. As it should be. I mean, for the 300th

episode, as the prophecy foretold, here we are and all is as it should be. We have, as the previous host might have once said, an action-packed pod today. We'll do a little SCOTUS update. packed pod today. We'll do a little SCOTUS update. The Fifth Circuit had an interesting en banc argument that we'll discuss. California's misinformation law enjoined. We promised you we'd update you on the Hamlin University lawsuit. And at Stanford, you can get in trouble for reading books that they keep in their library, which was confusing to me. So we'll see what's going on there. David, you ready for this? I'm ready. Let's do it. Let's do it. All right. First up, little update on a case that we followed the oral argument of quite recently, just a couple weeks ago in Ray Grand Jury. Do you remember this one, David, about the scope of attorney-client privilege when other

things are discussed in that conversation? Well, the justices heard the argument. Remember, I told you that I thought this was like a 9-0 case. This wasn't following along any known patterns of justices. Everyone seemed like, what? If you bring up any law questions suddenly the whole conversation is privileged and then they digged it david they just digged it so dismissed as improvidently granted a few things that are interesting about this one we've seen cases digged before it's and i know it's weird to not say doug but it's digged. It's digged. And they're digged like way later. This is digged like two weeks after the argument. So this wasn't a close call, it appears. You know, they talk about the cases at the conference at the end of the week,

basically. So they must have sat there and taken the vote and been like, nobody wants this. A few reasons why that might have happened. One, they might want to truly grapple with the question of this scope of attorney-client privilege issue and just thought that this case, frankly, was going to be 9-0. It wasn't a particularly interesting version of this question, perhaps. Number two, the grand jury aspect of it might have been difficult if the whole point is to provide guidance to lower trial courts and you can't really read the record

because it's all sealed in grand jury testimony. That's a tough one. However, I will say that none of that makes a ton of sense because those are both things that they knew when they granted the case in the first place. Right. It's a little mysterious. It was.

Look, the oral argument wasn't great for the law firm, the expand attorney-client privilege. So if you were a justice who voted to take this case in the hopes of perhaps changing that privilege standard a little bit and you heard the argument and you were like, oh, not ideal. So I don't know, but it's gone now.

So wipe that case off your bingo card. What about your memory? Should you even remember it? I don't think so. I think this should just be memory. If you've got limited hard drive space in the cranium, just go ahead and clear some of that out. Did you watch Severance, David? Oh, did I watch Severance? I haven't stopped thinking about Severance. Okay. I thought that might've been a Severance reference. This is a show on Apple TV

about basically your work self can't remember anything from your outside self and your outside self can't remember anything for your work self. You're severed. Yeah, so you liked it? I thought it was one of the best television shows. I'm putting it in my top five of the last five years category. Wow, that's an overrating. Okay. No, it is a proper rating.

Because, and I think the reason for the proper rating of top five in the last five years was the gap between expectations and reality. Because I watched it reluctantly. Expectations are everything, whether presidential campaigns or television. I know. Always. I watched it reluctantly just because we were in between British crime dramas and had not yet discovered the next one to watch. And I thought, I hear people saying good things about severance. And then from episode one, I was absolutely hooked. And the premise sounds kind of weird and unappealing.

Well, it sounded weird and unappealing to me when I first heard it. But in context, it made this weird kind of sense, reminds me of how another phenomenal show that I rejected initially because the premise was weird and unappealing to me, which was Station Eleven. Station Eleven is the best show of the last five years.

It's so good. Episode seven of Station Eleven might be best show of the last five years. It's so good. Episode seven of Station Eleven might be the single best television episode I've seen in a very, very long time. Okay, David, wait. Before we leave this cul-de-sac, this total digression from the law, speaking of British crime dramas,

this one's Irish, first of all, but also mostly American. Have you seen Bad Sisters? Oh, have I seen Bad Sisters? It's incredible. Oh my God. What does David do but for reading cases and watching television? I mean, look, Nancy has a Twitter thread of all of the complete series that we have watched and enjoyed over the last several years. And I think it's 41 series long. Now, this demonstrates a commitment to having fun and a lack of commitment to sleep. But I would say Station Eleven

was one of the best, most moving TV shows I've seen in a very long time. And I, you know, the premise, the one sentence premise is following a Shakespeare troupe in a post-apocalyptic, post-pandemic landscape in the northern Midwest

does not exactly describe the kind of show that I'm going to be all into. But my gosh, is it incredible. I thought the episode Last Night of Last of Us was the best single episode of a television show that I've seen in years. Ooh, I got in late last night from a trip and I haven't

been able to catch up. David, if anyone is going to love this episode, honestly, it is you. Okay. I don't, I'm not going to spoil it. Okay. I cannot wait. Okay. We need to get back to a legal podcast. Okay. Back to law. Back to law. All right. So that's the SCOTUS update. We are not going to have arguments until mid-February at this point.

So we'll have these little updates along the way. I've got a Kavanaugh speech to talk about in our next episode this week. But the SCOTUS updates are going to be a little slower

for the next month. Yeah. All right. Let's move to the Fifth Circuit's en banc argument. David, we talked about this case. We've talked about this case now a few times, actually. This is the Facebook journalist. And boy, there was nothing anyone agreed about here,

including whether she was a Facebook journalist or a social media influencer. Oh my gosh. It made me tense to listen to the argument. It was an unpleasant argument to listen to. So this is the case where the woman who does her, again, I'll put it in quotes, I suppose, quote reporting on Facebook gets arrested. She's put in jail for publishing two stories on her Facebook page,

had about 200,000 followers. The first one was about a border agent who committed suicide, and the second revealed the identity of a family involved in a deadly vehicle accident. She, in both cases, had sort of a tip with the information, but then she goes to the Laredo Police Department and asks them to confirm her tip. A person at the Laredo Police Department does confirm her tip, and she then publishes it on Facebook. She is arrested under a Texas statute that basically makes it a crime to publish non-public information for a benefit. And the argument is that she sought out the non-public information, published it, and that the benefit is that sometimes she, you know, gets lunch or dinner from a Facebook follower and that this improved her clout on Facebook. It was sort of a clout argument, if you will. Yeah.

So she sues, and the majority of the panel opinion written by Judge Ho, who we've talked about, who's, I mean, he's a First Amendment fanatic, David, and I do mean like fanatic in the original sort of sense of that. Which is one of his finest qualities,

if you ask me, Sarah. Absolutely. I mean, it is a high compliment. The district court gave the Laredo police qualified immunity. The Fifth Circuit panel rejected that majority by Judge Ho. They took it en banc, which is not a good sign, David, because en banc means a majority of the 16 judges basically vacated that panel opinion. So it's like the panel opinion never happened even before this argument starts.

Does that make sense? Yes. So you just go back to it going basically straight from the district court to all 16 judges. And if a majority wanted to do that, it generally tells you that the panel opinion is about to be reversed. Not every time. And sometimes there's a lot of splits and concurrences and who knows what. But in general, not great. So boy, the en banc was testy. I thought that, frankly, the advocates didn't do the best job teasing out the sort of law and the facts, which are a little bit messy here because you have this statute. Nobody has really held the statute as unconstitutional. There's one case that might. And remember, this goes back to

qualified immunity, David. The law that they're violating has to be clearly established. The law was sufficiently clear that every reasonable officer would understand that what he or she is doing is unconstitutional. And so one of the arguments here is that, for instance, they have this statute on the books. It's never been taken off the books. And a magistrate judge signed off on it. And we talked about this in a different case in the Onion amicus brief where you have the prosecutor

and the magistrate judge and all of these other actors. And it goes to that clearly established. How can something be a clearly established violation of the First Amendment if everyone involved didn't see that? At the same time, it is bonkers.

The idea that a person asking a government official for information and then publishing it, that somehow that is jailable a jailable offense and the answer from the laredo police department's lawyer by the way was deeply concerning he's like of course you can ask for that information obviously that's protected by the first amendment i was like okay and then when you get one step further he's like like, oh, but I mean, you have to go through the process laid out by the Laredo Police Department, which requires you to go through the PAO officer

and then file this paperwork and blah, blah, blah. Oh yeah, if you don't do that, yeah, then you can be arrested under Texas law. What? Yeah. It's a wild case, Sarah. It is, you know, she has 202,000 followers on Facebook. She's engaging in the kind of conduct

that every reporter engages in who is employed by an actual media company. Or let's say you're a sub-stacker, right? That you have your own sub-stack and you sell subscriptions to it. Scoops are going to build subscriptions. That's going to be a tangible financial benefit. And this idea that,

and the, you know, the idea that she was able to get information confirming her scoops from the government. And yet then the government is going to go ahead and try to throw her in jail for obtaining information from the government is pretty astonishing. And look, we've talked a lot about qualified immunity, but it seems like if we're gonna move towards a standard

that says, okay, wait a minute, if enough people have signed off on this, then at enough levels, then qualified immunity is gonna have to attach because isn't it reasonable for arresting officers to arrest or prosecutors to prosecute or whatever state officials involved in the process if everyone is signed off on it?

If you think about that for one half a second, what that essentially can mean is the deeper the level of the corruption or the deeper the level of legal of legal recklessness or disregard for legal standards, the deeper help. If that pervades a department or a jurisdiction sufficiently pervasively. Then you're in the clear. And, you know, as you were talking about, this statute is on the books. It's never been clearly held to be unconstitutional

or it's arguable whether it's been held to be clearly unconstitutional. I'm reminded of, correct me if I'm wrong, Sarah, but aren't like the Alien and Sedition Acts still on the books? Yeah, look, honestly, this whole case is so upsetting. The argument was so upsetting. The, I will tell you, the judge who is leading the charge on, you know, coming out the other way, finding qualified immunity is Judge Jones, my judge. Right. And the judge on the

other side was clearly Judge Jones versus Judge Ho. And it was hard to do a head count. Not all 16 judges, you know, showed their cards. So I don't know how the case will turn out. But look, let me give you a silver lining, David. You ready? Yeah. It's a pretty good silver lining, though. Okay, please.

I have talked about how I find it annoying, somewhere on the annoying to upsetting spectrum. I think everyone knows that spectrum well. That the right and left both champion First Amendment arguments that I agree with, but refuse to champion the other side's First Amendment arguments. So 303 Creative, the case about the wedding website to the social media bill cases,

it's like they stick their fingers in their ears and won't recognize the other way. Villarreal is a very liberal person. Right. You know, this Facebook influencer and or journalist. Yeah. She's very liberal. Her whole thing is criticizing the police, rooting out government corruption,

like from the left. Yeah. And yet, I will tell you, it brings me a lot of joy that a lot of the amicus briefs in this case came from conservative organizations. Alliance Defending Freedom, Americans for Prosperity, Cato, and Constitutional Accountability Center. conservative organizations alliance defending freedom americans for prosperity cato and

constitutional accountability center that's on the left uh electronic frontier foundation also mostly left like finally finally yay um i honestly even if this case turns out the wrong way it will have been something that everyone's recognizing that when the other side's First Amendment rights are under threat, so are yours. The principles adhere regardless of the politics. Well, here's a good quote from the ADF amicus brief. Miss Villareal's right to gather and publish truthful news has been clearly established for decades. Correct. It is plainly unconstitutional for defendants to attempt to bar Miss Villarreal from using standard journalistic techniques to uncover and report news. Correct. You know,

I have a theory about civil libertarians as to why over time civil libertarians tend to be so much more effective and successful than their numbers would bear out. Because the number of consistent civil libertarians in this country is really small. But the one thing is, you're always going to have a big, a huge chunk of the country on your side. So essentially look at it this way. Whatever the case is, you're going to have a big group of people in America outraged about it because it's that partisan group,

whoever's ox is being gored, right? Yeah, and I think the bummer for Villarreal is like, it's not a culture war issue. She's not some actual social media influencer. And you run up against, I agree, the qualified immunity questions are difficult here. While I think it is clearly established that someone asking a government entity for information,

even the person who's not the public affairs officer, heavens to Betsy, as a former public affairs officer, I can't imagine someone trying to go around me in my office. But, you know, there's this law on the books in Texas, is every reasonable officer, it is impossible for them to objectively believe that that was so clearly an unconstitutional law. You know, but this goes to the point on qualified immunity.

We could, I mean, as we've talked about before, it is a textual. The clearly established test is stupid because this case could come out, by the way, where they don't even determine whether this is a clearly established whether this is a constitutional violation so that it could happen again it'd be like well it was never clearly established yeah yeah i i think qualified immunity it's calling it a textual is mild it-textual. Because the text specifically says,

specifically uses the word shall to indicate liability when civil rights are violated under color of state law. And so, yeah, it's a contra-textual doctrine. It's more than a textual. And it leads us exactly where we are right now. And imagine, Sarah, when you're a DOJ, imagine if you could publish the protocol for seeking information from the Department of Justice and then prosecute anyone who didn't follow the protocol. Anyone who didn't follow the protocol.

It's wild. And by the way, there's no question that the officer who provided this information, I don't know whether she violated the law or could simply lose her job at the Laredo Police Department. Fine. Again, exact same thing at DOJ, right? If you're an attorney with privileged information, you give that to a journalist. You have violated DOJ's rules and maybe the law, but the journalist hasn't, it's their job to ask and your job to say,

no, yes, it would, no, I was going to say it'd be a real treat to just throw all the reporters in jail all the time, but actually it wouldn't. It wouldn't. It wouldn't have made my job better or easier. It would have been stupid. And, you know, qualified immunity. One, was there a constitutional violation?

Two, was it clearly established at the time um it's very possible that they're going to say that not answer question one which is how all of these cases now come out and then answer question two it wasn't clearly established whether or not there was a constitutional violation so that this law stays on the books the next villarreal has no guidance over what they're doing and whether what they're doing is jailable by asking their government for information and potentially getting the information. And we do this whole rodeo again. And yes, there have been many alternatives proposed to the current qualified immunity standard, one of which gets to an intent question. And yes, that can get messy and muddy and

all of that. But the intent question would absolutely screw the Laredo Police Department here because they undoubtedly arrested her because they did not like what she was printing about them. Right, right. And they had the intent to violate her constitutional rights. It's just, it's an absolutely remarkable case and it's so remarkable it's one of those circumstances where you're trying to think of what is the filter through which this thing is being processed and you know i we've talked about various distortions in the law so we have you know the drug war distortion we've had the abortion distortion. And I think of the qualified immunity line of cases is, you know, there is a distortion effect there as well. And it's kind of hard to pin what the distortion effect is. But the qualified immunity strand, and I'll just, I want to read you the underlying statute. Listeners, I'm reading you the underlying statute too, so that you can understand why I have, I'm all,

what is it that you young folks say, Sarah? I'm all in my feelings about this. Is that, is that a- That doesn't sound right. That doesn't sound right. Okay. I'm an elder millennial. I'm not the right person to ask.

Oh, sorry. Well, I have strong feelings. So here's the actual statute. Every person who under color of any statute, ordinance, regulation, custom, or usage of any state or territory or the District of Columbia subjects or causes to be subjected any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding

for redress. Shall be liable. Now, the way judges have interpreted the statute, it now essentially truthfully reads, at least according to the case law, may occasionally be liable. But that's not what the law says. It's shall be liable. So they're acting under color of a statute here, this Texas statute that's crazy, that deprives this Facebook journalist of her constitutionally protected rights. Under that formula, this is black letter, shall be liable, should apply. But here we are, Sarah, here we are. It does not because of the way qualified immunity has been crafted, interpreted, and extended for decades.

And this is where it ends you up. This is where it ends you up, where you're actually having a real live argument, where there are actual viable legal arguments that, you know, this isn't really clearly established. Why? Well, because you can't point to a specific other case in the Fifth Circuit saying, don't jail journalists for securing information from public

officials outside of normal channels. What are we even doing? Some of the hypotheticals, David, were depressing. So these were all from Judge Ho. Your superintendent has been fired over all the stuff that's currently going on. And you want to find out who they're considering for the next superintendent. So you call your friend on the school board to try to find out. Did you just violate the law? Maybe.

You're a lawyer and there's been an opening in the judiciary. And so you call your friend at the AG's office or whatever in the legislature. And so you call your friend at the AG's office or whatever in the legislature to ask about like what they know about this judicial opening and like when they think they'll put out, you know, for applications or whatever. You violated the law according to the lawyer for the Laredo Police Department because you did not go through the public affairs officer and the proper channels to ask your government for information. The government A wild argument, David. I've never really heard anything like it. You sort of are like, wait, this is the United States?

It was baffling, truly. In this podcast, we try, I try, we try very hard to give the best arguments for both sides, explain the law. I'm having a hard time doing that in this case. Yeah, it's quite a case. It's quite a case. And Judge Ho fighting the good fight, by the way, for the First Amendment. And boy, and I will just mention, because this was weird. So when the Laredo Police Department lawyer was arguing, every time Judge Ho would try to ask him

a difficult question, he would say he couldn't hear him and then keep talking as if Judge Ho wasn't talking. And then Judge Ho would interrupt again. So we know he could hear him because every time Judge Ho talked, the lawyer stopped talking. Like at one point, Judge Ho says, can I ask a hypothetical? What? Can I ask a hypothetical question? I can't hear you. I'd like to ask you a hypothetical question. I'm having a hard time

hearing you today anyway. And he tried to go back and Judge Ho was like, I'll ask the hypothetical. And that's when he asked the one about the judicial opening. And then the guy answered it. So like he could hear him. I'm very confused. And mind you, we're getting this from the recordings that include the microphones in front of the judges. So we can hear everything just fine. I'm not sure what was happening in the room, but it's a hell of a tactic in an en banc argument to only be able to hear the judges who are on your side. Yeah. It seems like the live courtroom version of going through a fake tunnel with your cell phone.

Yes. Going through tunnel. Can't. Sorry. Yeah. It was that. And it kept happening over and over. I was so weird.

I can't even tell you how weird this en banc argument is. Jeez. It was that. And it kept happening over and over. I was so weird. I can't even tell you how weird this en banc argument is. Jeez. Well, can we go from Texas craziness to California craziness? I would love to. Let me read you a statute, David. Yes. A.B. 2098 took effect on January 1st, 2023. The statute provides that, quote,

it shall constitute unprofessional conduct for a physician and surgeon to disseminate misinformation or disinformation related to COVID-19, including false or misleading information regarding the nature and risks of the virus, its prevention and treatment, and the development, safety, and effectiveness of COVID-19 vaccines. What could be wrong with that statute, David? You don't want to disseminate mis- or disinformation, especially from doctors. David, why is this even on our list of things?

Well, and especially, Sarah, when misinformation is so helpfully defined as, quote, false information that is contradicted by contemporary scientific consensus. Ah, contemporary consensus. Yes, contrary to the standard of care. Which can change based on whatever. We don't have what contemporary isary consensus. Yes. Contrary to the standard of care. Which can change based on whatever. We don't have what contemporary is or consensus

or when those things would change and what we do about the fact that they changed. But did you say it when it was the old consensus? Or the new consensus? Right. What a statute, Sarah. What a statute. This is the problem when the other branches, by the way,

absolutely abrogate their requirement to understand and follow the constitution as well. State and federal constitutions. Like as the legislature, you now just get to do whatever you want and let the courts figure out whether it's constitutional. No, your oath is to uphold the constitution and defend. You know, it's funny how the defense of you,

so I've been doing first, I did first amendment litigation for, so the first case I volunteered on, we've talked about before was in 1992, the hot, sexy and safer case out of the first circuit involving students and a sex ed presentation. So I've been doing constitutional litigation versus a volunteer intern, whatever, in law school in 92. And I filed my last brief in 2022. So that's 30 years. And what's interesting to me is that how often the same doctrines come up across 30 years

and how often states and other public entities will violate the same doctrines in spite of not just in spite of a tsunami of case law, like a tsunami of case law. And so, you know, in this instance, you have this doctrine called void for vagueness. In other words, when a statute or law or policy is drafted, it has to be understandable by a person of ordinary intelligence. Now that's a little bit modified

if you're talking about a statute that regulates a particular profession. In that circumstance, terms that might be unclear if you're outside of the profession can be clear if you're inside of the profession and it's a term of art within the profession. But misinformation and scientific consensus

are not terms of art within the medical profession. And so this, how does this guide you, Sarah? This doesn't provide guidance for a doctor. And look, I know, I know full well, there has been a lot of garbage information that has come out about COVID. There's been a lot of contradictory information. It's a novel coronavirus. But you know what? If you apply the statute on its face, then could you take action against officials in the CDC that have given conflicting guidance over the course of the COVID pandemic? I mean, that's what I find fascinating about it, because by the terms of the statute, I think you could, you could take action against them

for what they said at the time when the scientific consensus was changing, if that makes sense. Right. Which is wild. As in like, you're not even necessarily held to the, which is wild. As in like, you're not even necessarily held to the, if it was scientific consensus at the time you said it, but the scientific consensus has now changed, there's a chance that you're still liable for the thing you previously said. Right.

Because if you said it, when it contradicted the scientific consensus, even if it was true, Also correct. Then you're definitely liable. Exactly. And doesn't something like this serve to sort of make the scientists...

Freeze the consensus. Yes, just freeze it right there because if you challenge it, you can be liable. It's a remarkable statute, Sarah. It's just a remarkable statute and it is not at all surprising. The only thing that would surprise me is if this was upheld. It's a remarkable statute, Sarah. It's just a remarkable statute. And it is not at all surprising.

The only thing that would surprise me is if this was upheld. It would surprise me if it's upheld at the Ninth Circuit. I would fall out of my chair in shock if it was upheld by SCOTUS. It's just a remarkable statute. And can I just mention something for, just as an aside, it's interesting to me that California and Florida, Newsom and DeSantis kind of are going at each other, hammer and tongs over which state is the freedom state, when the reality is both of them are in the running for most enjoined states for violating the First Amendment. It's amazing. You know, so Gavin Newsom has lost. He's, you know, this one is enjoined presently,

district court only, right? District court only, but it's enjoined. Major Supreme Court loss last term involving donor disclosures. Major Supreme Court laws a year or two before that involving mandatory advertising for free or low-cost abortions in crisis pregnancy centers. Florida right now has an injunction against it for its social media law. It has two injunctions against it for its Stop Woke Act. They're just competing with each other and passing unconstitutional laws that violate the First Amendment for their partisan cause and then calling themselves the freedom states.

It's good times. Good times, Sarah. So, for instance, I thought it was deeply concerning that the government's response, California's response, to the clear scientific consensus question. They said, well, the scientific consensus may sometimes be difficult to define.

There is clear scientific consensus on certain issues. For example, that apples contain sugar, that measles is caused by a virus, or that Down syndrome is caused by chromosomal abnormality. Is this a joke? So first of all, I think that the measles is caused by a virus is such a telling example

because that's not what they're talking about with COVID-19. They're not punishing people for saying COVID-19 is caused by Jewish laser beams. That you actually might get away with. Right. Like, that's the comparison to measles is caused by a virus.

No, this is like masking, vaccination, whether you should take, what's the Paxlovid? Paxlovid, yeah. Yeah, like the Paxlovid stuff. I've had friends with very weird responses to that all across the board. You know, again, like, it's not whether COVID is caused by bats or space lasers.

This is how to treat it. What is involved? What is the efficacy of cloth masks? Do you need to wear an N95? What? How are they possibly saying that there is scientific consensus on all of this

and that to do anything contrary to that scientific consensus, including challenge it, it now makes you legally liable? It's remarkable. And the other thing, Sarah, is it's totally, completely unnecessary as a statute. Why is that?

Well, yes, that too. Because there is still something called medical malpractice. That's right. So let's suppose you go to a doctor and they say, you know, what they want you to think is that this is a virus. But what I'm here to tell you is it's space lasers. And if you wear mirrors on your head, it will reflect the lasers back up, okay?

And you'll be fine. And so you wear the mirror on your head and next thing you know, you go through a horrible bout of COVID, it's terrible and doctors treat you more effectively and you recover and you file a lawsuit because of medical malpractice. This is something that exists, still exists, will exist after the statute is hopefully struck down, that provides the safeguard that each one of us have against

truly negligent medical counsel. It is a check. It's a check that already exists. And so this idea that, what it seems to be aimed at is this battle, this seems to be a battle over social media by proxy that it's really aimed at sort of public expression more than anything else,

which makes it even more vulnerable, even more vulnerable to First Amendment challenge. But again, this is not something that is necessary to protect you from truly horrible medical advice. You have the ability to file a medical malpractice lawsuit if you have actually been harmed by negligence or recklessness or intentional misconduct. You can do that.

You can file suit and be compensated. So it's utterly, utterly unnecessary to deal with actual identifiable real-world harm caused by negligent medical advice. Instead, it's really much more of a culture war tool. And sorry, you can't fight the culture war government by restricting

the free speech of your opponents. That's just not how this works in a First Amendment regime here in the United States of America. Well, unless you live in the states that we've already discussed, in which case, you know, maybe. Maybe. Maybe. At least for a time until you're enjoined so and we'll take a quick break to hear from our sponsor today aura

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This is my go-to gift. My parents love it. I upload photos all the time. I'm just like bored watching TV at the end of the night. I'll hop on the app and put up the photos from the day. It's really easy. Right now Aura has a great deal for Mother's Day. Listeners can save on the perfect gift by visiting AuraFrames.com to get $30 off plus free shipping on their best selling frame. That's A-U-R-A frames.com. Use code advisory at checkout to save. Terms and conditions apply. All right. Next up, Hamlin. David, there's been a lawsuit

filed. Will you please update us on the Hamlin shenanigans? Oh, yeah. Yeah. This is interesting. Oh, yeah. Yeah, this is interesting. So Hamlin, if you remember, is the private school, private university in Minnesota that fired, or depending on how you respond, did not renew the contract of, let's just say lost, caused a university lecturer to lose her job for showing an image of the Prophet Muhammad after warnings, multiple warnings, to students that this might be offensive to some of them.

It was an image of the Prophet Muhammad painted by a Muslim artist. There is division in the Muslim world as to whether or not images of the Prophet Muhammad are always verboten or sometimes permissible. But a student who is sort of of the view that it's always verboten got very, very upset, raised complaints.

Other students agreed with the complaints. Professor is fired. And it was really, and then it's just been an unbelievable saga ever since. So the university president puts out a statement on academic freedom that was, we've talked about it a little bit on the podcast, that was really utterly contrary to what academic freedom actually is because she conditioned academic freedom on sort of the response of the community, which is not academic freedom. The faculty voted no confidence in the president.

The professor has filed a lawsuit. And now what's interesting here is the lawsuit itself. What, you know, obviously there was a loss of, you know, you have damages, you have, you know, she's claiming emotional distress, damage to her professional reputation and job prospects. Now, it's very difficult to, however, to sue a private university because private universities, if Hamlin wanted to say tomorrow

that we are a Muslim university and you're going to have to uphold our specific version of Sunni Islam or Shia Islam or whatever to be a professor here, it would have that right. It would have that ability. I mean, there's all kinds of Christian colleges right now that say, you know, professors have to sign statements of faith, professors have codes of conduct, professors even can have codes of speech or speech codes regarding how they teach their subjects because the private university, the private Christian university has its own free speech, free association, religious free exercise rights. And so in theory, Hamlin could say tomorrow it wanted to be a Muslim university

and it could impose those kinds of codes of conduct. But interestingly, she filed a religious discrimination suit against Hamlin because Hamlin is not a religious university in that sense. And she alleges that it's therefore bound by religious non-discrimination rules. And it says that she is not Muslim. This is Dr. Lopez Prater, the professor, It says that she is not Muslim. This is Dr. Lopez Prater, the professor, that Hamlin treated her negatively because she is, quote, she is not Muslim because she did not conform her conduct

to the specific beliefs of a Muslim sect and because she did not conform her conduct to the religion-based preferences of Hamlin that images of Muhammad not be shown to any Hamlin student. And she therefore claims religious discrimination. What do you think, Sarah? Interesting.

Yeah, I have questions on this. Generally, when we see religious discrimination lawsuits, it is affirmative, i.e., you are discriminating against me because I am fill in the blank. Right. Here, the argument is you are discriminating against me because I am fill in the blank. Right. Here, the argument is you are discriminating against me because I am not Muslim. So, A, I find that interesting because, boy, this one's hard. I think it's hard to shoehorn this claim into the facts.

That's not really what happened. They weren't upset that she wasn't Muslim. They were responding to sort of their student outrage and the woke idea, I hate that term, but in this case, it kind of fits because it was a nonsensical ideal they were trying to, the president here was trying to reach for

that she didn't know anything about, that then she has to backtrack off what she said, which was false. You know, if it were actual religious discrimination, there would be, I think, a clearer through line. Well, this is the policy of the school and this is what we wanted and you didn't do it. That's not what happened here.

It was, we're reaching for this ever more progressive offending place. Oh, but I offended people by saying that that offended people. So now it's a different offending place. I don't know.

This isn't a religious discrimination fact pattern to me. Yeah, it's interesting. I like the way you frame that, that it's not that they've discriminated her for being anything. They took action against her for not respecting, allegedly,

the religious beliefs of other students. Is that religious discrimination? I've been trying to think of comparable cases. And it's hard for me to think of a comparable case. There's some cases that have been filed down here in Middle Tennessee. Have you ever heard the name Dave Ramsey, Sarah? Don't know.

He's kind of a, mainly in Christian spaces, financial guru. He's sort of like this debt-free guy who has a, you know, he's became famous for something called Baby Steps to Financial Freedom. He's an advocate of debt-free guy who has a, you know, he's became famous for something called Baby Steps to Financial Freedom. He's an advocate of debt-free living, etc. And he has a huge operation here right outside of Nashville, just giant, where he has, I believe, hundreds of employees. And he has, it's a for-profit business, it's subject to Title VII,

but he has Christian codes of conduct that he imposes on his employees. And so, for example, no premarital sex, et cetera. Now, there's open question as to how consistent he is in this. Do women have different standards that are applied to them than men? And there's a lot of these kinds of issues, but there have been Title VII cases filed against him,

essentially over this imposition of a Christian code of conduct in a business subject to Title VII. And that's the closest analogy that I can really think of. And I'm sure listeners can help us out. But it's like, but this isn't really an imposition

of a Muslim code of conduct, truly. For instance, it's not clear to me that if she had been Muslim, but of the majority of Muslim sects that don't have any issue with showing the Prophet Muhammad, so done exactly what she did, but she were Muslim, that this would have changed the outcome at all. The whole point was that the president wanted to recognize and celebrate the sort of most offended person in the room idea. Right. So then you're arguing that like, well, no, it's that I didn't belong to this specific sect of Muslim belief. Again, I'm not sure that really fits the fact pattern here, because it was about the student's offense. It didn't really need to be about the Prophet Muhammad. It could have been about anything this student was offended about. And I think you would have seen the same outcome. this Hamlin president, in my opinion, should lose her job. She's not good at her job by virtue of the fact that she puts out this absurd statement about, we definitely believe in academic freedom, except where it runs up against anyone who's upset by academic freedom. Then that's not academic freedom. Then that's not academic freedom. Then she puts out the statement, it's like, actually,

it turns out I didn't understand anything about Muslim culture. And it turns out that I offended people. But I mean, you got to be kidding me. Like, this is culture. And it turns out that I offended people. But I mean, you got to be kidding me. Like, this is insane. And the whole time saying that, like, I'm a woman of color as the president, and therefore I have special solicitude in this opinion. It was weird. And no real business on a university campus.

So I wish that she had a colorful claim, but I don't think so. Yeah, it's tough. It strikes me as the kind of claim that you file hoping to get past your motion to dismiss and then settle the case. There are cases you file like that where essentially the goal is

to get past a motion to dismiss, and then you know, you know, you know, this is not something that the university wants to drag out for weeks, months, years, especially when there might be really embarrassing stuff that comes out as soon as you're able to get access to all the internal correspondence. And, you know, now putting aside any sort of breach of contract claims she might have, which, of course, are analyzed differently. Yes. Absolutely analyzed differently. And I have been involved in cases at private universities college in upstate New York who was a graduate student. is the fact pattern, Sarah. Wildness, in a paper advocated for corporal punishment in schools. In a paper advocated for corporal punishment in schools. Professor liked the argument.

Somebody else did not. And he was immediately dismissed from the program for arguing in a paper. Now, corporal punishment was legal, I believe, at that time in close to 20 states. Corporal punishment was still legal in schools. And so he was advocating a process that was legal, and I believe also the state he came from, and was immediately dismissed. And we were at fire, and at that time, fire was not litigating, but we got him engaged with a lawyer. got him engaged with a lawyer, and he won his case, but he won it on contract grounds that his due process rights that were guaranteed to him by the university were not granted to him. And so there are ways you can sue private universities

that violate their contracts. And there are other circumstances where you can sue private universities for violating non-discrimination statutes from Title IX to Title VII to Title VI. I'm just going to be very interested to see where this goes. All right, last topic today. I'm going to read you a couple paragraphs from an article in the Stanford Daily. Oh my. And there's going to be several terms in here that may not be familiar to you and may sound a little Orwellian, so bear with me, we'll get there.

A protected identity harm report has been filed after the circulation of a Snapchat screenshot of a student reading Mein Kampf, the autobiographical manifesto of Nazi party leader Adolf Hitler, according to an email sent to Jewish students Sunday by Rabbi Jessica Kirshner and Rabbi Lori Hahn Tapper. The protected identity harm reporting process is the university's system to address incidents where a student or community member feels attacked due to their identity.

The photo of the student reading the book was posted to another student's Snapchat story Friday evening, according to a screenshot of the image obtained by the Daily, university spokesperson Dee Mustafi confirmed that the Office of Student Affairs and the Office of Religious and Spiritual Life became aware of this incident on Saturday. The two offices, along with Stanford's Hillel chapter, are working with the leaders of the residents that these students belong to to address the social media post and its impact on the community. David, I thought you might be interested to know that Mein Kampf is available in the Stanford library. Sure it is. And that it's required reading in at least one Stanford humanities class. But this student who was seen publicly reading a book

that people don't like, is now potentially going to be up for academic discipline. What? Yeah. You're not allowed to read things that other people find offensive? You're not even now talking. You're not offending them by something you've said. You're not offending them by something you've said.

You're not offending them by showing a picture of the Prophet Muhammad in class. You are now offending people by reading something on campus that someone else took a picture of you doing and posted to social media. You didn't post it to social media, mind you. Someone else saw you reading wrong think,

David. Amazing. Amazing. Now, again, again, you know, I think I talked earlier about years of First Amendment violations that I've seen. This is not the first time something like this has happened at a university. And, you know, I thought it made national news all the way back in 2008, Sarah, all the way back in 2008, a person who was working at Indiana University, Purdue University, Indianapolis. Now that's actually the name of a university. I-U-P-U-I. He was a university employee and a student who was reading a book called Notre Dame versus the Klan, how the fighting Irish defeated the Ku Klux Klan. And he was a university employee and a student who was reading a book called Notre Dame versus the Klan, How the Fighting Irish Defeated the Ku Klux Klan. And he was, IUPUI officials didn't like it

and compared it to bringing pornography to work. Wait, I'm so confused, but this sounds like it's an anti-Klan book. It is. Yeah, it is. It is an anti-Klan book. So at least Stanford's a little better because Mein Kampf is actually a pro-Nlan book. It is. Yeah, it is. It is an anti-Klan book. So at least Stanford's a little better because Mein Kampf is actually a pro-Nazi book, whereas the Klan book from 08 was an anti-Klan

book. But this kind of... I'm so confused. I mean, Mein Kampf is... Lots of people have read Mein Kampf. How is this different than, I don't know, reading Karl Marx or any other historical document? Look, I personally haven't read MindConf. I consider it a failing, honestly. I probably should have had to read MindConf at some point and understood it. I mean, especially right now when we're dealing with rising authoritarianism

around the globe, there are a lot of academic reasons to study and read Mein Kampf to understand authoritarianism, to understand fascism, just to understand the history of the rise of Nazi Germany. I mean, there's countless reasons to read the book that have nothing to do with saying, I am, I like Hitler. Like there's no, there's so many reasons to read that book that have nothing to do with affection for Nazism and a lot of reasons to read it

that have a lot to do with loathing of Nazism and wanting to understand how it could have happened and how to prevent it from arising in the future. So this student may be required to join mediated conversations, restorative justice sessions, or indigenous circle practices to help move towards resolution. This is outrageous.

Thankfully, by the way, FIRE has sent a letter to Stanford asking for clarification. And I hope the letter just read WTF. Now, interestingly... So I think this student will be just fine, but it has a chilling effect. Now, if you want to read controversial stuff, you need to make sure no one can take a picture of you.

Yeah. Now, interestingly, Sarah, there's an interesting quirk in California law. And that might be very directly relevant here. California has something called the Leonard Law, which is the sort of the colloquial term for SB 1115, which extends free speech protections to students enrolled in non-religious private institutions of higher education. So Stanford is under the scope of the Leonard Law. So that student has the equivalent of constitutional or close equivalent of constitutional free speech protections under California law. And interestingly, Stanford has felt the bite of the Leonard Law before. And this is 1995,

a case called Corey v. Stanford University, one of the first court cases ruling against a university speech code. And so that was one of the very first of the speech code cases was Corey v. Stanford applying the Leonard Law to Stanford. So I wonder if we might see a repeat performance. David, I just, I don't understand. This book is in the Stanford library.

How can the school offer the book to students but punish them if they take them up on the offer? And it's required reading in one of the classes. Yeah. What? How are we even here? What is going on? Yeah. And it's important to note,

let's just presume for the sake of argument that the student is a Nazi, that what we also understand and know, if we're applying First Amendment precedent, which might well be applicable to Stanford because of the Leonard Law, as we know from Free Speech 101, Nazis have free speech rights as well.

But there's no evidence. There's no evidence that that's what was going on here that we know of. What it seems to be is that the mere fact of reading the book without any inquiry into the student's point of view or the person reading the book's point of view, just the mere fact of reading it

is enough to trigger this restorative justice process. Wow. Also, just thoughts on the student who took the Snapchat. Give me a break. Right. Yeah.

That is some dumb, dumb stuff. You're a Stanford student. Go have some intellectual curiosity. Yeah, it's remarkable. So this has been a First Amendment free speech podcast. Yeah, it's not been a good one. It's been an upsetting First Amendment free speech. So let's go back to TV.

Okay. Bad Sisters is a dark comedy about killing an abusive husband. Yes. And it did. It brought me a fair amount of joy. It's a nice whodunit. You know he's dead at the beginning,

but you don't know how and you don't know who did it. And every character is delightful. It has the woman from Catastrophe, which is great. Which Catastrophe is an all-time, all-time great series. Fantastic series. Yeah. I don't know why.

It's like a running inside joke in my house. In Catastrophe, they get accidentally pregnant. It's a catastrophe. It's like one night stand, basically. And she names the kid Mweren. And so the joke is that he can't pronounce his own daughter's name. And so all the time, Scott will talk about Mweren. Yeah. They have a one night stand or it's more like a one week stand. She gets pregnant and then they decide to just get married. Barely know each other. Have a life together. Yeah. It's awesome. He's American. She's Irish. It's a delight.

Yeah. It's phenomenal. Yeah. And Bad Sisters, again, one of those between British crime dramas. And then we look and we see it's an Irish crime drama. Close enough. Close enough. And oh my goodness, it was really well done. Did you figure it out before the reveal? I did. But literally minutes.

Same. Yeah. Same. I figured it out in the episode where the reveal was. Maybe the end of the episode right before it. I was like, wait, maybe, but that's pretty well done. It makes you feel good like they do the reveal.

And it wasn't a cheap reveal. There are crime shows that surprise you with a twist, but it's cheap because there weren't... Right. You couldn't have possibly known. They didn't provide you the information no you had you had there were plenty of little drops along the way plenty of drops

and yeah it made all the sense in the world and context at the very end but it was still surprising as it you know as it unspooled it was phenomenal and their efforts to kill him like they do try to kill him many many times

and they fail Phenomenal. And their efforts to kill him, like they do try to kill him many, many times. And they fail. Each sister fails and it's great because there are collateral consequences. It's so comically. It's so comical. It's dark comedy. But it's definite comedy. Yeah.

All right. That makes me feel a little better. I don't know. I like what Adam says in Slack. He said, listening to today's stories is making me claw my face.

Adam, That's how I feel. I, you know, I could just sit here and tell you stories of cases from the pre-Twitter era, because everyone thinks nothing happened before Twitter,

that would just make your brain explode for how wild they are. Okay, but reading a book on college campus and then being called up for an indigenous restorative circle? What? Come on, David. Even that has to feel particularly egregious. Except I brought you one worse

from 08. It's like reading a book called My School Versus the Nazis. But that one doesn't make any sense. I know. That makes it worse. No, this one's worse because it does make sense

because you know what they're trying to do. They're trying to say that now there are certain things you cannot read because other people find it offensive that you would read a thing that they themselves don't want to read. Right. But this is like if you hold up a book and you're reading it and the cover says the Klan is bad. I know, but that makes no sense.

I know. Okay, listeners, in the comments, tell us what is worse, Stanford and its restorative justice for someone reading, for a screenshot of someone reading Mein Kampf or I-U-P-U-I-U-P-U-I-U or whatever it is,

coming after an employee and a student for reading a book called Notre Dame versus the Clamp. So which one is worse? And as host and the 300th episode, obviously, thank you so much for all of your support and for being here with us. I did have someone tell me recently that they had been listening to the pod since 1990 that was weird

we've been around a while but not that long but just a reminder the comments section we read all the comments I try to get in there and answer the ones that I can but I'm reading them all so don't you worry I'm seeing them in there

you can become a member of the dispatch to leave us a comment. And it's where we get lots of our show ideas. We get questions from it that we answer on the pod. So just a reminder here in episode 300 that the best way to communicate with us, the way that you're sure that we will see it is in those comments on the dispatch website.

So come to the dispatch website, podcast, advisory opinions, comment down there. And David, any other notes as you are relegated to peon status on this pod? No, I'm just thankful that the coup has not resulted in my execution. So I'm just happy to be breathing right now. So, you know, whatever you want to do.

Good. Yes. Well, next episode, we will talk conversion therapy, whether we should be looking at the sincerity of religious held beliefs. Jack Phillips, the cake maker, is back in court and he's lost again. And finally, Justice Kavanaugh gave a speech at Notre Dame that I thought we'd just do a little chit chat on. So

we already have an action-packed pod next time. And that's who knows what could happen in the next 48 hours. Well, host, are you going to close the podcast? Is there a special closing? Do I wave a wand? Oh, how do you close the Dispatch podcast? I don't know. It's all, it's like severance. I'm severed from that pod to this pod. Happy 300th episode, David.

I'll see you in a couple of days. Is that a Chewy's t-shirt? Yes, it is. Thank you for recognizing. Yeah. It's the heroes of Tex-Mex and it's like a jalapeno Groot and stuff. Ha! I have mixed feelings about Chewy's.

It's really our only decent option out here. Oh, is that right? Do you have Uncle Julio's, perchance? I think Chewy's is better than Uncle Julio's. What? Uncle Julio's is Dallas-based. Chewy's is Austin-based. I don't think it's close.

Man. I don't think it's close. Man. I don't know like what Chewy's like is Chewy's like exponentially different in DC because here Chewy's is like mid-tier Tex-Mex and Uncle Julio's

is like that's where you go for business meetings like with real people. I mean yeah that's where you go for business meetings, like with real people. I mean, yeah, that's probably true here, but like the tortillas are lame at Uncle Julio's. Chewies are homemade. Have you had the steak fajita at Uncle Julio's medium rare? Look, Tennessee dude

I'm just not sure that you have the standing to challenge my fajita preferences I have taste buds I mean look Tennessee dude