Advisory Opinions - ISIS and Algorithms

Episode Date: May 25, 2023

Sarah and David react as SCOTUS weighs in on social media regulations. Sigh. Also: -Justice Jackson cutting to the chase -Patent Act and dad jokes -Reader Comments -Judicial side eye for banning platforms for speech -West Virginia and the abortion pill -Constitutional rights and admission standards -Happy Memorial Day weekend Learn more about your ad choices. Visit megaphone.fm/adchoices

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Certain conditions apply. Details at phys.ca. You ready? I was born ready. Welcome to Advisory Opinions. I'm Sarah Isger. That's David French, who has brought back with him a little bug. So, you know, David might be a little coffee, but normally that's me. So finally, finally, David is the sick one. We're going to hit on the tech cases. Yes, the Twitter case from the Supreme Court, the Google case, and then we're going to take a

little bit of a veer into Montana to talk about TikTok. And finally, we'll wrap. The Fourth Circuit has their opinion out on the Thomas Jefferson High School admissions policy. And this is the once and future case, man. We've talked about it before.

We'll talk about it today. We'll talk about it again. The cert petition is coming. I'm surprised it hasn't already been filed two seconds after this opinion. But let's start with the Supreme Court. David. Yes.

The Twitter case and the Google case were sort of different sides of the same coin, a ISIS-related terrorist attack, and whether and how you could hold the social media companies responsible. In the Twitter case, which was under the Anti-Terrorism Act, this was an aiding and abetting question. Did Twitter, by knowing

that there was ISIS content on their platform, aid and abet ISIS in carrying out this terrorist attack that killed the person whose estate is suing? It was a unanimous decision. Thomas writing a one paragraph Jackson concurrence. And no is the answer. Nope. Can't hold Twitter liable, not aiding and abetting without something more. Basically, aiding and abetting requires action, not omission. And David, the tech part is what we were looking forward to. Right.

But I got to say, I just really enjoyed the common law discussion on aiding and abetting. Yeah, yeah. I mean, we were walking into this saying, okay, here we go. This is a tech case, tech case, tech case. Not a tech case, tech case, tech case. Not a tech case. And then, as so often happens, these tech cases get resolved on pretty mundane, normal legal, on the basis of pretty normal, mundane legal doctrines. You know, when I've tried to explain, for example,

Section 230 to folks, I always use offline examples because there are offline examples of speech and actions that are analogous to online examples. Online is not some sort of, what is this crazy thing we can't see or recognize? It's another form, another forum for speech and forums and forums for speech have been around for a long time. So, yeah, it was not at all surprising to see just basic common law principles applied to something new. And when you walk through those common law principles, you knew as soon as these principles are articulated, just the test being outlined, you knew Twitter was not losing this

case. But some interesting stuff here. So the Anti-Terrorism Act has this aid and abet language. And so what was new about this case was that aid and abet language hadn't been fleshed out. Thomas then brings in the common law aid and abet, same as you'd have in any robbery case. And then that aid and abet language in the Anti-Terrorism Act is then applied to this tech example. So it was a layer cake, if you will. But let's start at the bottom layer, which is the common law of aid and abet, where Thomas, for a good, I don't know, 15 pages, is discussing a single case, which again, if you are a law student out there, go read pages, start at page 14, bottom of page 14 of this opinion. Sorry, it's bottom of eight of the opinion, 14 if you're just looking at the pages at the top of your thing, which

included the syllabus. So page eight of the Thomas opinion turns to a case called Halberstam versus Welch. It is a 1983 DC Circuit case. And go through the facts very quickly here. Welch is a serial burglar. Halberstam is the guy he kills. Halberstam is the guy he kills. The question is whether Linda, his live-in partner, can be charged with aiding and abetting. Linda wasn't present for the murder.

She wasn't even aware of the murder. But she was clearly a willing partner in Welch's criminal activities. She had lived with Welch for five years, during which time the couple had risen from modest circumstances to possess a substantial fortune. How? This rapid ascent was remarkable because Welch had no outside employment. Rather, he left the house most evenings and returned with antiques, jewelry, and precious metals, some of which he melted down into gold and silver using smelting furnace that he had installed in their garage. Meanwhile, Linda did the bookkeeping. She had his customers make checks payable to her,

falsified the tax returns at his direction, kept records of incoming payments from Welch's customers with no records of outgoing funds for his, quote, suppliers. Their arrangement continued until Welch was arrested after he killed Halberstam while burglarizing Halberstam's home. So that's the setup of the facts here. Not techie, as you say, David, or having anything to do with terrorism. But there you're going see the i think the most attenuated aiding and abetting right this and that's why it's an interesting case she's not there for the murder she doesn't know about the murder nevertheless they're gonna sustain her aiding and abetting conviction

because she's doing the aiding and abetting stuff right she is affirmatively helping him be a burglar and it's reasonable that is affirmatively helping him be a burglar. And it's reasonable that when you're helping someone be a burglar, things could get violent and someone could get killed. So therefore, she was aiding and abetting the commission of a crime that led to Halberstam's death. And so then we're going to get into the difference between sort of overt action versus omission. And we've talked about that before a lot here. Very little in the law is going to allow you to be charged with not doing something.

Now there's special circumstances, right? If you find a baby face down in a two inch puddle and all you have to do is kick the baby out of the puddle, not to have it drown, you probably don't have any affirmative duty to do that unless you have any special relationship. You created the puddle, not to have it drowned, you probably don't have any affirmative duty to do that unless you have any special relationship. You created the puddle. You put the baby in the puddle. You are a parent or special relationship to the baby. All of those things might mean that you actually do have an affirmative duty to act and you can't just watch the baby. But even in the most egregious

circumstances, not doing something is rarely going to be a crime. And you can see the alternative, right? You watch someone burglarize a bank and you don't call 911. Did you aid and abet? No, like, we're not going to charge someone with crimes for that. So that's like the setup, the common law aiding and abetting. And then you see Thomas say, look, now like you put that into the Anti-Terrorism Act, and then you put that into the Twitter example here.

Defendants' mere creation of their media platforms is no more culpable than the creators of email, cell phones, or the internet generally. And David, I think that's where your example of like, you could use cell phones here. ISIS, I'm sure use cell phones, but nobody thinks you can charge Verizon. Right. And, you know, the argument that the plaintiffs might be something along the lines of, well, as soon as Verizon knows that there are terrorists on its network, it needs to do

what? Everything that it can possibly do to knock them off? What does it need to do? Because remember, in a lot of these circumstances, moderation rules were being applied to try to remove ISIS-friendly accounts. It was just that there was not enough done, that there were still ISIS-friendly accounts on there. So yeah, the analogy to email, to say to Gmail, wait a minute, the analogy to email, to say to Gmail, wait a minute, do you know if anyone on ISIS is on Gmail? Well, if we know they're in ISIS and they're on Gmail, maybe we do something about it.

Well, how much overt investigation do you do? That began to be running down the slippery slope of what becomes the affirmative obligation as soon as you know that terrorists or criminals use your product. What is your affirmative obligation as soon as you know that terrorists or criminals use your product? What is your affirmative obligation? And Sarah, when I was in Iraq, the pickup truck of choice was the Toyota Tacoma for virtually any jihadist activity,

especially those where they turn their truck into a technical, where they would put a machine gun on it or something like that. And I mean, this was a very known thing. Toyota Tacomas were crawling all over the Middle East being used by terrorists and to such an extent that, you know, Toyota was even asked about it. So what's Toyota's response? What do they do? Do they stop selling Tacomas in the Middle East? Do they put some sort of background check on every purchaser of a Tacoma? I mean, you begin to see how this gets difficult. And so, A, the outcome here wasn't surprising at all. And B, the unanimity of it wasn't surprising to me either. And I think, you know, you looked at all, there were all of these factors. So there was a two-factor

test followed by a six-factor test, but it all came down to was your assistants knowing and substantial, knowing and substantial. And once that's the test that's applied, there was no way Twitter was going to lose its case. But it is interesting because I do feel like the Thomas opinion at points elided the best arguments of the plaintiffs here, which was, look, yes. Okay. So Twitter has them on the platform. Twitter is trying to remove them from the platform, but they're not doing a whole lot to try to remove them from the platform. And this is going to take us over to the Google case, in which case Google's not just, and again, almost the same exact setup. Terrorist Act, we're talking about YouTube videos instead of tweets here. But the argument over on the Google case was that in fact,

Google in the algorithm was promoting ISIS videos to people who liked ISIS videos. So not just that they weren't removing it, but their moderation was affirmatively promoting it. And whether, now not under necessarily the Anti-Terrorism Act, but were they protected from liability under Section 230? And remember, this is the Communications Decency Act that protects moderation if you have a platform. And well, we really kicked that can down the road.

So the answer from the court was, we're not doing that today. We're just not interested because it's taken care of by the Twitter case. And what do I mean by that? That because the Twitter case said they couldn't be liable under the Anti-Terrorism Act for aiding and abetting, it doesn't actually matter whether Section 230 would even protect them from liability. Now, at oral argument,

these cases were consolidated or argued on the same day. It's actually more accurate. The justices kept asking, we only need to resolve one of these cases, right? Which one do we need to resolve? The liability question or the aiding and abetting question? And it depended, as you can imagine, on which counsel you asked. But they decided to resolve the aiding and abetting question and not the liability shield question, instead saying,

since you can't find them liable anyway, it doesn't really matter whether they have a shield then from liability under this other, you know, congressional act. So we're sending it back down. This case is done. I don't know, David. Pretty unsatisfying result to these cases. Well, it's also pretty much exactly what we predicted, as I recall, which was, you know,

when you were listening to the oral argument, was it Justice Kagan that essentially said something like, we are not the nine experts on the internet here? Yeah. Yeah, you're right. I mean, the oral argument just basically, we went into the oral argument feeling very differently about the cases. And coming out of oral argument, it was like, oh, no, they have no intention of doing this. No, exactly.

Going into it is, ooh, tech cases. We're going to resolve a ton of the arguments out there about tech regulations. They're going to distinguish between not taking something down and actually promoting it in their algorithms. And this is going to be all about the algorithms. No, it was not. No, no, no. It was common law, hundreds year old kinds of doctrines applied.

And yeah, I think one thing that is, so there are remands and there are remands if you're a practicing lawyer. So sometimes you win a case or lose a case and the case is remanded down to lower court and you think, I've got a fighting chance. Maybe it's remanded for a new trial. Maybe it's remanded down to lower court, and you think, I've got a fighting chance. Maybe it's remanded for a new trial. Maybe it's remanded for reconsideration

of a summary judgment motion. Let me just say. This wasn't that. We therefore decline to address the application of Section 230. This is the end of the per curiam opinion with no dissent. So we don't know what the lineup was. We know there were at least five with no dissent. So we don't know if what the lineup was. We know there were

at least five and no dissents. So here's the last part of the per curiam decision. We therefore declined to address the application of section 230 to a complaint that appears to state little, if any, plausible claim for relief. Instead, we vacate the judgment below and remand the case for the Ninth Circuit to consider plaintiff's complaint in light of our decision in Twitter. That is the kind of remand, Sarah, that is like the slow walk to the chopping block.

I mean, that was like, hey, this is a total gnaw dog for us, nine Supreme Court justices, but you do you, Ninth Circuit. Whatever you want to do. Yeah. Okay. And by the way, on the algorithm question,

here was the line from the Twitter opinion, which I did find fascinating. And there is something here for these future tech cases. As presented here, the algorithms appear agnostic as to the nature of the content, matching any content, including ISIS's content, with any user who is more likely to view that content. The fact that these algorithms matched some ISIS content with some users thus does not

convert defendants' passive assistance into active abetting. Once the platform and sorting tool algorithm were up and running, defendants at most allegedly stood back and watched. They are not alleged to have taken any further action with respect to ISIS. Well, there goes the moderation argument. Well, this is again echoed exactly what they said about in the oral argument where they kept using the term neutral or as I recall, use that term neutral once or twice. I think agnostic is better. It's a better word that in other words, that the, it's not that the algorithm was really neutral.

It wasn't neutral. It was actually just feeding you what you want. So it was agnostic in the sense it didn't care what you wanted. It just gave you what you wanted. It served that up. And so I think that that's an important fact here and something that if you had different facts where you had for some bizarro world reason, YouTube decided, you know, bizarro world reason, YouTube decided, you know, we need more jihadist content to surface. And it left the agnostic behind and became an actual affirmative pushing of a viewpoint unrelated to the viewpoint of the user. Then you might have a different case here. But it was very clear that the agnosticism of the algorithm was very important to the justices.

that the agnosticism of the algorithm was very important to the justices. Well, what about, for instance, Twitter currently? And again, I'm going to make up the facts here. These are not the facts of Twitter, everyone. But Elon Musk takes over Twitter and tells them to change the algorithm so that it's still agnostic

in the sense that they sit back and watch the algorithm, but they change the algorithm so that it is more likely to surface certain types of content. And let's say for our purposes here, it's white supremacist content or something like that. You mean like current Twitter? I'm not saying what current Twitter is doing.

I'm kidding. That's the de facto result of privileging the current class of blue checks. But anyway, go. Nope. See, you can get sued for that. Not me. But so you do tweak the algorithm, but then you sit back and watch it. I wonder how cases like that would come out under this aiding and abetting type concept. Because I don't know, maybe it doesn't change anything. Yeah, you know, because current Twitter does tweak the algorithm. It is not neutral.

It privileges blue check speech. So if you... It privileges all sorts of stuff. Sure, sure. So one prominent category is blue check speech. And so if you're going to play out the argument, the argument would then be, well, all we've chosen to privilege, I think under the Twitter case would be, we're just Twitter, we're privileging blue check. And the demographics of

the people who choose blue check, we're not privileging their, that's up to them. You know, the fact that X percentage of people from one side of the spectrum choose to pay for the blue check and Y percentage choose from the other side of the perspective of the ideological spectrum chooses not to pay doesn't mean that we're choosing to privilege, in this case, the right. It just means we're choosing to privilege people

who've paid for the service. And I think that they're going to be people who've paid for the service and i think that they're going to be completely safe under this kind of analysis even if it turned out that the demographics of the people who were paying the check mark were paying for the check mark were disproportionately crooks um that wouldn't make twitter liable because the actual algorithm is not, oh, okay, we're going to give a blue check to everyone in ISIS. That would, that would, you would be in real trouble then. But if it's, we're giving the blue check to everyone who pays us eight bucks a month, you're clear. Because it was clear from

this opinion, it's knowing and substantial. It's gotta be, there's gotta be that intent requirement. So we're not doing disparate impact analysis in the algorithms. All right, well then let's talk briefly about Justice Jackson's concurring opinion that says a lot while giving me no guidance as to what she means.

I joined the opinion of the court with the understanding that today's decisions are narrow in important respects. What respects, you might wonder? Well, I do as well. Both cases came to this court at the motion to dismiss stage with no factual record, and the court's view of the facts, including its characterization of the social media platforms and algorithms at issue, properly rests on the particular allegations in those complaints. Other cases presenting different allegations and different records may lead to different conclusions. So literally, this concurrence says, I agree with the outcome of this case, but in different cases, agree with the outcome of this case but in different cases i might feel differently thanks yeah okay yeah was that about what my example do you think is that about i don't know it felt

a little kavanaugh-esque i almost david if i get a tattoo that's going to be my tattoo other cases presenting different allegations and different records may lead to different conclusions. Yes. Well, this is how I mean that it felt Kavanaugh-esque. And both Bruin and Dobbs, remember how he broke out and at greater length basically said, we're only deciding this case, right?

We're not deciding in for example in dobbs the travel case um moving between between state lines or in bruin we're only really deciding this case we're not deciding all other cases involving guns and so uh kavanaugh's done that at greater length but that's why i meant by jackson just cut to the chase she's like but in kavanaugh, he gave the example of constitutional right to travel and like what some other cases might look like. She's not head.

She's just hedging her bets, man. She's just hedging her bets. I mean, other cases presenting different allegations and different records may lead to different conclusions. Literally is all other cases like a death penalty case or a patent case. True.

But I love it. I love the sentence. As I said, I'm thinking of getting it as a tattoo. It'll be my first tattoo. It's as surprising to me as it is to you that it would be a Jackson concurrence in a tech case. But honestly, there's so much wisdom there. I'm not being sarcastic. I actually love that sentence. That is a tech case. But honestly, there's so much wisdom there. I'm not being sarcastic.

I actually love that sentence. That is a great sentence. But if you're going to get it tattooed, it raises a lot of other questions. So one is what's the font? So are you going to be doing it in like Chinese characters? I think I would try to do it in exactly this font, right? You want it to look like a Supreme Court opinion on your leg. I don't know. Is this a thigh tattoo? Blue book citation included? Probably. Yeah.

Yeah. I think that would be extra pain. But yeah, I think it's worth it. That would be. Well, then that raises me and it's like a long... That's a long tattoo. That's a lot of time in the chair. Yeah, that's why I think you might need your thigh.

It's going to need to be tiny, but like you're gonna need a pretty big canvas yeah i don't know i heard rib tattoos are really painful so i'm not gonna do that yeah yeah i i i'm really out of my depth here but i do know you only like this isn't an ankle tattoo you know it'll just you'll have to keep turning and twirling for people to read the whole thing. All I know is you've only started to answer the questions about the tattoo now that you've decided on the text. Okay. And we'll take a quick break to hear from our sponsor today, Aura. Ready to win Mother's Day and cement your reputation as the best gift giver in the family? Give the moms in your life an Aura digital picture frame

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frame. This is my go-to gift. My parents love it. I upload photos all the time. I'm just like bored watching TV at the end of the night. I'll hop on the app and put up the photos from the day. It's really easy. Right now, Aura has a great deal for Mother's Day. Listeners can save on the perfect gift by visiting auraframes.com to get $30 off plus free shipping on their best-selling frame. That's A-U-R-A-Frames.com. Use code ADVISORY at checkout to save. Terms and conditions apply. Before we go to Montana, there was one other case worth mentioning, but David, I got scared about mentioning it. So this was a Patent Act case. And again, you think that it's going to be,

it's the patent equivalent of tech, right? It's antibodies. It's sort of biomedical new frontier stuff. And instead, it's going to go back to incandescent lamp. This is Thomas Edison. And there just is this great sentence at the end. It's Gorsuch writing unanimously. Section 112 of the Patent Act reflects Congress's judgment

that if an inventor claims a lot, but enables only a little, the public does not receive its benefit of the bargain. For more than 150 years, this court has enforced the statutory enablement requirement according to its terms. If the court had not done so in incandescent lamp, it might have been writing decisions like Holland furniture in the dark. That's a dad joke. It's a patent justice dad joke.

But the idea of this, again, it was sort of similar to the aid and abet going back to extreme. This is a common law, but very old in this case, statutory interpretation principles under patent law. You can't have invented something very small and then patent the waterfront. That's a good way of putting it. So I'll give the incandescent lamp example. And I'm reading here from the opinion again. For much of the 19th century, gas lamps helped illuminate streets and supplemented candles inside homes, factories, offices, and theaters. But gas lighting had drawbacks.

It took effort to ignite the lamps each night and extinguish them each morning. Then there were problems of soot and fumes. By the 1870s, many had experimented with other forms of lighting, including incandescence and the arc light. Enter Thomas Edison. Love the dramatic sentence. From his laboratory in Menlo Park, Edison and a team toiled to improve upon the prevailing method of incandescent lighting, which tended to employ carbon filaments. The problem with carbon filaments was that they disintegrated rapidly. In a sense, carbon contained in itself the elements of its own destruction.

Another great sentence. That's fun. That's fun writing. Right? Seeking an alternative, Edison tinkered for a time with platinum, but it was expensive and difficult to bring to the point of incandescence without melting. Eventually, Edison dispatched men across the globe to collect specimens of bamboo. One sample from Japan worked brilliantly because its fibers ran more nearly parallel than in any other species of wood. Satisfied, Edison arranged to have a Japanese farmer supply all of the bamboo he would ever need.

But there was a catch. William Sawyer, an albem man, had obtained a patent for, quote, an electric lamp with an, quote, incandescent conductor made of, quote, carbonized fibrous or textile material, which they claimed was an improvement over conductors made of mineral or gas carbon. Sawyer and Mann's patent had not won them commercial success. They had designed a lamp with a conductor made of carbonized paper, but the lamp proved effective and quickly fell out of use. Still, their failure did not stop them from seeking to share in some of Edison's success. Sawyer and Mann alleged that Edison's lamp infringed on their patent because it made use of a fibrous or textile material covered by the patent. What was the offending material? Bamboo. So that's what I mean by you just made something with one carbonous material

and it didn't actually work. When that guy then searches the globe to find the perfect bamboo, you don't get the benefit of the waterfront because remember, patents are basically a government-granted monopoly. And so the public needs the benefit of the monopoly that it's granting. And what the court's saying is if the public's not getting the benefit of the monopoly that it's granting. And what the court's saying is, if the public's not getting the benefit of your monopoly, in this case, you didn't actually create an incandescent light for anyone to actually work, then we don't give you the monopoly.

We're giving it to Edison. But David, I got... We got a comment from a listener that made me really scared to talk about this. Uh-oh. I'm going to read you the comment. Uh-oh. Okay.

Because that was all the conversation I can have about it. That's correct. It's the same. And this is why I almost didn't even have that conversation. Okay. Because here it is. And I'm so glad you wrote this. Honestly, I'm going to make fun of it,

but only because we're dumb and you're smart. Okay. When you cover the Amgen case next time, consider that the court did not perform the Wands Factors analysis. I'm curious if any patent experts like myself found that important or just a minor oversight or just irrelevant to the final analysis of scope of enablement. Personally, I find Juan's factors analysis unnecessarily formal and burdensome, distracting from the actual statutory requirements. On another note, the court really should strike down the written description and enablement bifurcation of section 112A because it too is unnecessarily formal and burdensome, distracting from the actual statutory requirements. is unnecessarily formal and burdensome,

distracting from the actual statutory requirements. Right. Yeah. Totally with you, man. Totally. I'm just so glad. Was it here or she? Presa.

I don't know. Presa. Okay. Well, I'll just say Presa. Presa, you said it before I could. But I will say this, David. you know, I'm going to try to convert this into us sounding like we know what we're talking about on this case, which again, I want to be very clear. We don't at all. Obviously press a knows a lot and we know not just very little, like nothing. Um, but you know, we've talked a lot about the, that Y axis, the institutional axis for the court.

And putting that under that text history and tradition idea, right? That the court in general is trying to wipe away all of these, you know, every statute and every constitutional clause has its own multi-factor balancing test. clause has its own multi-factor balancing test. And unless you're a lawyer who's an expert in that area, you can't possibly wade into this because you don't know the wands factors in this case or the lemon factors in that case. And Gorsuch has been leading the charge on wiping all of this off the books and instead returning to these first principles, be it sort of common law or sort of initial statutory textual interpretation. But that is what text history and tradition, the whole point of text history and tradition is doing here is replacing factors that are, and again, I'm just going to quote press it here, unnecessarily formal and burdensome. So then we'll go back to common law factors

like the two-factor slash six-factor aiding and abetting test. Okay, I did think that was funny coming from Thomas. When I read that, because I was like, ah, this is fitting really like reading the Twitter case and the aiding and abetting stuff. I was like, oh, see, this fits exactly into my theory of where the court is going overall,

big picture philosophically. And then Thomas is like, here are the six factors. I was like, wait a second, no factors. No factors. So can we raise another reader comment directly related to last? So this is from Aim Detect. So that's probably not their name, but it begins. Thanks, David.

Yeah, just that those are the kinds of insights you need me for and not David Latt. All right, it begins. All right, Roman historian here again with Latin pronunciations. Oh, yes. I did read this one. Ipsy Dixit, which is how I pronounce it. That is not how it's pronounced. I know that comes as a surprise to you, Sarah,

but it is Ipsy Dixit. Right, which, no. No. No, I mean, that's exactly what he said. And yes, I don't doubt that's how Romans pronounced it, but that's not how lawyers pronounce it. Romans pronounced it, but that's not how lawyers pronounce it. Well, that's like saying Versailles is how the French pronounce it.

Versailles is how they pronounce it in Kentucky. We're training lawyers on this podcast, David, not Romans. Okay. Okay. But Ipsa Dixit. Ipsa Dixit is so hard to say correctly. No. Ipsa Dixit. The hard to say correctly. No, Ipsa Dixit.

The uh and the eh go together. Well, for me, see, I don't know if that's the right way to approach this because my entire life I've pronounced pen, P-I-N, and pen, P-E-N, exactly the same. Right. Because it is very difficult to say pen.

Okay, in context though, we probably have a decent idea of what you're talking about. Well, sure. But still, don't you strive to pronounce pen correctly, even if it's difficult for your mouth to form the word, like that pen, pen, pen. It's hard. No, no, because there's homonyms in our language.

Our language is horrible and stupid in a thousand different ways. Okay. All right. Well, I'm going to say Ipsa dekes it and feel superior about it from this point forward. I'll keep saying voir dire because I like my roots. All right, let's talk about

the other tech case that is bubbling up. It was only a matter of time until one TikTok ban was going to make its way. And I think Montana is going to win the prize here barring unforeseen hurdles. Montana passes a ban on TikTok under the national security idea, right?

That they don't want the Chinese government spying on Montanans. And a lawsuit is filed within hours. And we're off to the races, David. Yep. It's fascinating. And it really gets down to the conversation we had earlier about TikTok,

which is, okay, you know, there's a lot of judicial side-eye when you start banning platforms for speech. And so you're going to be in real trouble if you're passing a ban on TikTok because you're saying, that much dancing and that many Taylor Swift covers is bad for young minds. And so therefore, what we want to do is limit access of young people to this content.

Now, to be clear, there are certain kinds of content that young people don't have a right to see, for example, pornography. But this is content that otherwise would be in isolation, non-controversial. The kinds of content, well, watching another teenager dance to a Taylor Swift song or watching somebody sitting in the front seat of their F-150 with Oakleys on ranting about, you know, Q. Like Those kinds of things would be, that's normal, constitutionally protected speech. But if you're saying, well, wait, the way TikTok does it, it's particularly addictive. Young minds are being exposed to too much, too soon, too fast, et cetera, et cetera. We're going to ban this platform. You've got a lot of First Amendment issues. But if you're saying, regardless of the content of the speech, regardless of the content of the speech,

regardless of the viewpoint of the speech, the Chinese Communist Party has access to tons of confidential information about Americans, and that's a bad, bad thing. That's a different analysis. But then it raises the question, Sarah, of who gets to do this?

Indeed. Yes. This is the problem. Donald Trump tried to do it, and that was enjoined, at least, you know, preliminarily by a court that said the enabling statute that Donald Trump is pointing to does not give the president the power to do this in this case. Here we now have a state trying to do it. What is the state's power to take national security interests into its own hands? So this is going to be an unclean vehicle in that sense, as opposed to a congressional statute.

Time and time again, David, we're back in the same place. Yep. I foresee, and if I'm wrong in this, I don't want to face the same penalty imposed on Old Testament prophets who are wrong about a prediction, which was stoning, Sarah. So I'm just calling this a guess, an educated guess, not an actual prophecy to avoid the stones. But I foresee this case being punted on those. I mean, I foresee Montana's ban being punted on those very grounds that, hey, we don't have to get into. In theory, can the state take this, in theory, can the government ban it?

We just know that this government cannot ban it, that this government does not have that sort of national security authority that Congress has. This is not a direct pork producer's case, but it gets to my pork producers grand unified theory, which is when Congress is stagnated, all of these other branches of federalism, by which I mean the other two branches of the federal government,

but also then the states are going to try to step up and fill these voids where they see them. And obviously California felt the need to fill the void on pig protection. And remember, there had been bills in Congress that had died on that. You can take that either way, right? They died because Congress is stagnating or they died because Congress decided it wasn't a good idea

or there wasn't support for it. Both of those are fair, I think in this case. But here, same thing, right? There's bills sitting in Congress about banning TikTok and Montana's like, y'all aren't doing anything. We're just going to handle this on our own. So again, not that I think this is a dormant commerce clause case, but rather it is an example of states just going at it on their own. And I'm a big believer in federalism, but I'm also, also understand that there are certain topics that are not suitable for federalist solutions.

So one is the Bill of Rights. We do not have a federalism of the Bill of Rights. My first amendment- We used to. We used to, and it didn't work very well. Justice Thomas wants to go back to it. He'd like to revisit that whole incorporation doctrine. I know, I know.

Not my favorite thing about Justice Thomas. So we do not work well when everybody's rights are dependent upon which state they're in. So that does not work very well. Immigration is another arena where it's begging and crying for a national solution. It doesn't work so well if, say, Arizona is passing,

making it more difficult for immigrants to be there, and California is making it easier for immigrants to be there. And it's just a mess. It just becomes a mess. And then national security is another area that screams for a national solution. So you can be a good federalist like I am and believe in subsidiarity like I do, but there are still some national interests that have to be met. Can I bring up another example of this, David, and see where you come down? Yes. So there's

another vehicle percolating in a similar fashion on a very different issue. West Virginia banned, almost without exception, the importation of Mifeprestone into the state. They are being sued under several grounds, one of which, by the way, there was just a filing on how the pork producers case applies to this, which I think is nonsense. It's written by very good lawyers. So it's not that the lawyers are nonsense. It's that their argument is nonsense. This is nothing like in the pork producers where you had a, a, um, out of state unified industry that was being told what it had to do to produce its product, to sell it in state here. You just have a ban. California has bans on all sorts of things. Haven't you ever bought something that says cannot be sold in the state of California?

California has bans on all sorts of things. Haven't you ever bought something that says cannot be sold in the state of California? There's no dormant commerce clause problem with that. So I reject that whole part of it. But they are making a preemption argument that because the FDA has approved this drug, that that preempts then a state from banning the drug. Now, I think you should think of preemption

as like having floor and ceiling issues, right? And we're going to get into, believe me, we'll be talking about this West Virginia case again. I don't want to talk about the details of whether the FDA has preempted this and how preemption works, but I'm curious what you think about the federalism aspect on West Virginia banning it as compared to Montana banning TikTok. Yeah. So I'm, as a general matter, if unless the actual activity is constitutionally protected, I don't necessarily have a problem with the not suitable for sale in California kind of analysis. I don't, as a general matter, I don't really have a problem with that.

The question, the interesting question for me is the preemption question. How much has the, to what extent has the FDA occupied the field at all levels? Not just the approval level of the drug, saying it's safe for use, but the access issue as well, which seems to be a different deal. So that is that's the question that I have in this is a general matter. This idea that you say, for example, a particular truck just doesn't have admission standards suitable for California,

that's fine. I mean, we used to have emissions testing in my county and some cars were going to have a problem where in the neighboring county, they didn't have a problem and that's fine. But it might raise practical issues that a legislature should address. But I'm much more interested in the preemption piece of it. Yeah, and just for those who are like, wait a second, I thought we already had a Mifeprestone case. Let me remind you, the Texas Mifeprestone case, that's the Judge Kazmarek one,

that's actually challenging the FDA's approval itself. It's original approval back in 2000. It sort of expanded approval in 2016 this is accepting as fact the FDA's approval the West Virginia case and simply saying okay but can then a state ban mifeprestone for sale inside the state and it's still fine if all the other states want to have it we just don't want it in our state. And as someone pointed out, David, you know, what is it? 80% of abortions in the United States are chemical abortions done before, you know, at or before 10 weeks. And so this is not just the next battlefield. It's sort of the only battlefield in a lot of ways, legally speaking.

battlefield. It's sort of the only battlefield in a lot of ways, legally speaking. And this person was saying, well, if Dobbs meant to say that this was preempted, they could have said it. And I was like, whoa, whoa, whoa. Back to your Kavanaugh concurrence point, David. That Kavanaugh concurrence was pretty broad. And to quote my tattoo other cases presenting different allegations and different records may lead to

different conclusions that was fast administration of a tattoo by the way oh yeah I just got it done while we were

taping this podcast I had someone on demand uh last case for today Thomas Jefferson High School did you ever imagine when we started this podcast that we would dedicate i think this is our fourth might even be more than that

honestly but it's at least our fourth time discussing a high school charter school's admissions policy amazing amazing sorry it's not a charter school. It's a magnet school. Yeah, it's amazing. And it is, the case is really interesting to me. This decision in particular was really interesting to me because what we have here is a majority opinion and a dissent

that just, it's hard to even encapsulate how differently they see this case. Walk us through the facts again. This is the Fourth Circuit. We have a three-judge panel. It's going to be 2-1. So essentially the facts are that we have this magnet school

that had an admissions composition that was majority Asian. So this is one of the most prestigious magnet schools in America. This is one reason why we're talking about it. And through its prior admissions practices, it would have classes that might be 71% Asian American. White students would be 19.5%. At some point, there were so few black students that they didn't account for even a percent. So it was deemed too small for reporting. 10 or fewer black students had been in extended offers of admissions for TJ's class of 2024.

So the school board decides, well, we're going to revamp the admissions criteria. Now, what makes this interesting to me is it is not that, and there's no rule that says that once a certain kind of admissions standard has been set, then you have a constitutional right to that admission standard now and going forward because changing the admission standard might change the racial composition and therefore changing the racial composition is going to be presumptively racially discriminatory for whoever sort of lost ground. That's not this case that you don't have a constitutional right to a status quo admissions standard. The question is, was this enacted for the purpose of diminishing Asian American representation quite specifically?

And if it was enacted to target Asian Americans, then it's going to be subject to strict scrutiny and it's going to lose. If it was, hey, you know, we want to increase socioeconomic diversity or we want broader representation of all the various schools in the district or something that is not related to racial targeting, then you're going to have rational basis review where you're going to have, it's going to be the state's almost always going to win. And this is sort of what happened in this case. You had the two ships passing in the night, the majority saying,

this wasn't about race. This wasn't about targeting Asians. And the dissent going, what are you talking about? This is entirely about targeting Asians. And the racial composition was front and center throughout this entire process. And so those are the two competing frames. And the majority here took the view of this was not about race. This was not about targeting Asian Americans.

This was changing the admissions composition, our admissions criteria for totally different reasons. And the dissent said, no, this was all about fewer Asians. And on the facts, Sarah, I got to say the dissent kind of brought the receipts on this. Unfortunately, I do have an opinion about this case. You know what I mean? Yeah.

What do you mean, unfortunately? Well, look, on some of these, I don't have a whole lot of beef in the Amgen-Sinophie patent law case. If it had come out the other way, I'd be like, yeah, that's probably right too. I don't know. But here, and because I've been following the case

since they changed the admissions policy, since before the lawsuit. Yeah. Yeah, I mean, I just, I saw it as being about race because that's what it was about when they changed the admissions policy. I live here. This is my district.

My son would be able to go to Thomas Jefferson High School if he made it through whatever admission policy it is. And look, here's my beef with the majority opinion. What it seems to say, and by seems, I mean definitely explicitly says, is that as long as a policy results in a racial group being represented at population level or above, it cannot be racially discriminatory. And therefore, you always end up in rational basis review. So to put this in a different context, I'm a racist. And it really bothers me that there's so many black kids on the basketball team. The tryouts are based on merit, you know, who can make baskets. And the result has been all of these black kids who are good at basketball. It's ridiculous.

So I create a new policy because I'm sick of all the black kids on the basketball team. And in my new policy, basically, I take, you know, one kid from each street in the neighborhood or something like that. It's facially neutral. Now, the basketball team goes from 80% black to now 13% black. According to the majority opinion, no problem because the population is 13% black. Oh, great. Racists everywhere rejoice.

Right. And here, I mean, the facts were that even under the new system, Asian students did pretty well, still got in well above the percentage of Asian students in the overall student pool. But that shouldn't matter. Shouldn't matter. The question is,

was this targeted to decrease Asian admission? That should be the question. Was this targeted to decrease Asian? In other words, so that's what turned something into invidious discrimination. Invidious discrimination is when you're saying, this racial group, we need fewer of you.

That you don't get much more clearly, starkly invidious discrimination is when you're saying, this racial group, we need fewer of you. That you don't get much more clearly, starkly invidious than that. And by the way, this is a statement against interest for you because you know who benefits from this invidious discrimination? My son. Yes. My very white son.

Yes. And so, yeah, this is a situation where, and this is going to be very important if the Harvard UNC cases come out the way I expect that they will, we expect that they will, these cases are going to say, look, explicit racial targeting, explicit racial sorting is, for diversity purposes, just is not going to cut it anymore. No more, no more of that. And so what you're going to have is a whole bunch of institutions going back and saying, huh, what are the race neutral, race blind ways to achieve diversity?

And so you're going to have a second layer of litigation that says, well, wait a minute, if you were seeking to achieve diversity by targeting a specific racial group for negative treatment, that's where you're going to have a problem. And I think I will say, let me back up the school board here a little bit, which is, I think their best argument is we weren't trying to lower the number of Asian students. We knew that would be a result of what we're talking about here because Asian students so predominated the admissions. I think it was 80 percent or something. What we were trying to do was increase the number of students of other races, like black students and Latino students and white students maybe in the periphery. So we weren't feeling negatively towards Asians. We were feeling positively towards other races. And the reason that I bring that up is that I think it's important

for people to have to grapple with positive racism. The positive racism by definition has at its core, negative racism in it. It's built in. There's no way to say we wanted to increase the number of African-American students. It wasn't about decreasing the number of Asian students, but we knew that would be the result of this. Therefore, we're not racist against Asian students. We're pro-racist for Black students. It's all the same, right? And that's why the facially neutral but racially implicated admissions policies are a problem so the next question to debate is when the supreme court decides the harvard case and remember the harvard case is not facially neutral right the harvard question is it's not facially neutral but it's um you know benign or helpful or it's for diversity's sake, it's all of that stuff. But yes,

we're taking race into account. It's holistic, yada, yada. In light of Harvard, do they then sort of grant, vacate, and remand this case and send it down and say, try again in light of Harvard? Even though Harvard isn't race neutral, but there'll be enough sort of atmospherics about how you can't do things to races that are helped, yada, yada? Or is this just the next case to say, okay, we've decided the race is a holistic factor question and now we're gonna decide race neutrality admissions policies

that have an intentional impact on race. I think that's a close call. I think they are more likely to punt under Harvard than they are to take it. But I'm sure the people in the comment section will disagree. Yeah, I think they're more likely to punt under Harvard unless this is just a narrow, Harvard's just a very narrow decision that says

race as an explicit factor is out. Period. End of opinion. If it's, well, race as a specific factor is, well, you know, because the question before was, or the answer before was like, look, it survives strict scrutiny. Here they're going to say, well, under what circumstances does it not survive strict scrutiny anymore? And if it's because,

well, wait, if you're thinking about race when you're building this, you're trying to diminish a particular number of a particular percentage, then you're done. You're out. I can see that as being the basis of grant, vacate, remand in this case. But I don't know. I don't know. So much is going to depend on the scope of the Harvard decision. Oh, fair. You want to actually wait for a decision to decide how it's going to affect... Don't forget your tattoo. Other cases presenting different allegations and different records

may lead to different conclusions. Perfect. All right. Well, we're going to leave it there then. And David, have you watched all of White House Plumbers yet? I haven't even started. I've had to catch up. I was gone for 12 days.

I had to catch up on Love and Death. We're at the trial of Candy Montgomery, which is a real life case that I'm just, I haven't yet read all of the explainers about because I got to see how this all ends. And then I had to catch up with Succession. So we caught up on Succession. Are you still watching it and scorning it or have you just abandoned it? Watching and scorning. Okay. I'm watching and enjoying. I was going to say, you know, for someone who claims to be sick,

you don't sound like you're watching enough TV, but okay, you're just watching different TV. Yeah, just different. I had, I had a backlog. I had to catch up.

I gotcha. And then one of our favorite British crime dramas is coming out with its third season in America called Happy Valley, which is a weird name. No, Happy Valley, everyone knows Happy Valley.

I've seen Happy Valley. Happy Valley is amazing. So season three, episode one of season three dropped. No, Happy Valley. Everyone knows Happy Valley. I've seen Happy Valley. Happy Valley is amazing. So season three, episode one of season three dropped. Oh, see? This is why I need to tune into this podcast. Absolutely. Why you need to tune in.

Absolutely. Absolutely. All right. Well, then we will have more Supreme Court decisions. Fingers crossed. Let's see for the next episode. It is Memorial Day next week. So this next episode

may be one day delayed. Please don't freak out and think that we've been murdered by raccoons. Raccoons? Raccoons are going to do it? They do look like little burglars, right? And we just learned

that burglary can lead to murder in the Halverstam case. Fair enough. Fair enough. They're aiding and abetting one another. My mother, my mother was a state and federally licensed wildlife rehabilitator. I think I've mentioned that before. And we took

in everything, you know, owls, deer, hawks, mocking birds, rabbits, like you name it. there were two animals that she would not take squirrels raccoons squirrels and raccoons

yeah interesting we had a loon in our freezer for a good amount of time the loon was dead don't worry like we had everything but squirrels and raccoons

they were banned they were not deserving of her help fascinating that's invidious discrimination right there it really is I mean you know deserving of her help. Fascinating. That's invidious discrimination right there. It really is. I mean, you know, I have a soft spot in my heart for both, but, oh, and just, it wasn't just mammals, by the way, my dad became quite a specialist in using wood screws to screw back together turtles that had been hit by cars on the road. Fascinating. You can do that. Yes.

the road. Fascinating. You can do that. Yes. I mean, you can't be hit too badly. Let's be clear. Okay. He's not resurrecting turtles. Okay. Well, that wasn't what I was considering, but that's fascinating. Did not know that as a treatment. By the way, so Ann Compton, some of you may know her, famous ABC reporter, trailblazer, all of that. Her son asked chat GPT, I guess, like, what did Ann Compton do for women or something? And anyway, Ann told me that it said that she died in 1991. And I was like, wow, that is trailblazing for women.

She died and came back the first woman ever to do that. Oh, AI isn't there yet. Yeah, it's nowhere close. All right. With that, thank you for joining us. Hope you enjoyed the ramble at the end. And we will talk to you next week. Have a great Memorial Day weekend.