Advisory Opinions - Justice Department Sues Idaho Over Abortion Law

Episode Date: August 4, 2022

Sarah and David have a lot to talk about as the midterm primaries wrap up and federal lawsuits are filed stateside. What is former President Trump’s role in the midterm elections, or does he even have one? Also on the agenda: near-total abortion bans and pro-life amendments face a difficult path in Idaho and Kansas, and Justice Samuel Alito goes to Rome.   Show Notes: -The Sweep: What We Learned -Blake Masters campaign ad -Washington Post: Justice Dept. sues Idaho over near-total abortion ban coming Aug. 25 -Idaho Statutes -French Press: A Crucial Court Case Exposes the Darkness of America’s Worst Industry -Fleites v. MindGeek -Justice Samuel Alito delivers keynote address in Rome Learn more about your ad choices. Visit megaphone.fm/adchoices

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The roller, lightly cradled in his hands, applying just the right amount of paint. It's like hearing poetry in motion. Benjamin Moore, see the love. You ready? I was born ready. Welcome to the Advisory Opinions Podcast. I'm David Fringe with Sarah Isker, and we've got a lot to talk about today. One thing about August, when you go to one-time-a-week law, one-time-a-week geekery, it tends to make the law part of the August podcast action-packed. But we're not going to

start with law. For me, for me, I'm going to ask Sarah a few questions about the primaries. Not a lot there today for those who are saying that the Republican Party is, that Donald Trump is losing his grip on the Republican Party, would you say? Okay, let me, I'll try to make the best case, Uh, okay. Let me, I'll try to make the best case, which is mostly that the case that Donald Trump still has a grip on the party didn't get a lot of support last night either. And here's my reasoning for that. One, yes, Trump endorsed Blake Masters, who then won the Arizona Senate primary last night. But Blake Masters has actually been an exceptional candidate who's gotten support from really across the board. He's maybe caricaturized a little bit

in the Josh Hawley, J.D. Vance populism. But his brand of populism, I thought, was quite more nuanced and well done than some of the other forms of populism. One of the core messages of his campaign and some of the best ads I've seen this cycle have been from Blake Masters, by the way, on this message, which is that you shouldn't need a two-income household to survive in America, let alone succeed in America. It's a message that I would have heard from a Midwestern Democrat in 1992, and it would have seemed cliche, almost boring. And a Republican doing it in 2022, you know, got calls from the Arizona Democratic Party that he was being sexist. And then of course they pointed out Democrats saying the same thing and around and

around we go. But regardless, I, again, we can put the ad in the show notes. He had several of them, but, um, the, the one that made sort of the biggest splash on this, it was just a good ad. He turned out to be a good first-time candidate, which isn't always the case. He impressed people kind of across the conservative political spectrum. So to say that somehow he's proof that Donald Trump has a grip on the party, I don't think so. I think that's just proof that good candidates rise and that his opponents weren't as good, frankly, as candidates. Okay. Move on to Arizona governor's race. It still is too close to call by the time we're taping this, which is Wednesday. And look, that was maybe better evidence, but it's better evidence on both sides. So you have the Trump-backed candidate who is like a full-on, full-on election denier

saying that it's like her top issue is the 2020 election. What? And then you have the Pence-backed candidate. They're statistically tied. And the Ducey. Pence and Ducey. And basically everyone who's not Donald Trump.

You know, they're statistically tied. Arizona's kind of a weird state. This is a Republican primary. So you're getting a very small sliver of even Republican voters, by the way. Right. It's not great. I'm not going to say it is, that they're even tied. And I will also say that I think that if Carrie Lake, the Trump-backed candidate, ends up pulling out the nomination, who, by the way, she said last week, if she doesn't win, the election was rigged, which is such a great, like, if we win, we win.

If we lose, we win. Cool. On brand. Very on brand. Very on brand. If she ends up with the nomination, it might actually scramble the Republicans' chances of taking back the Senate. Now, in Missouri, the guy who was really going to scuttle their chances of winning that seat didn't win. The other Eric won. So Eric Greitens, the former governor, didn't.

Eric Schmidt, the attorney general, did win the nomination. That puts Missouri in the safe column. We're never going to talk about Missouri again this cycle. But when you have a top of the ticket that is distracting or worse, where every second Blake Masters is going to have to answer to something Carrie Lake said, do you agree with her? Do you disagree with her? And do you want to have sunlight between you or no? It could really change turnout in the race. It could change enthusiasm, all sorts of stuff. And it could really drag Blake Masters down in what's already going to be a very tight race. He's running against an incumbent Democrat, a new incumbent Democrat. Mark Kelly isn't the sexiest character in Arizona. His name ID is

actually relatively low compared to what you'd think for a sitting Senator. So he's a vulnerable incumbent Democrat. Mark Kelly isn't the sexiest character in Arizona. His name ID is actually relatively low compared to what you'd think for a sitting senator. So he's a vulnerable incumbent, certainly, but he's still an incumbent with all the advantages of that. And so I think this governor's primary, when it gets resolved, will actually not only have an effect on the chances of Blake Masters winning, but there's not a great path to Republicans taking back the Senate without going through Arizona, especially as Pennsylvania has the same problem, maybe worse, where the top of the ticket is distracting and the Senate part of the ticket isn't particularly doing very well right now either. And then in Georgia, where it's reversed, the top of the ticket's overperforming

and the Senate candidates underperforming. So again, they really need Arizona and you don't want that top of the ticket hot mess. Right. Arizona and then Rusty Bowers, who testified before the January 6th commission about the pressure that was placed on him and his refusal to bend to Trump's pressure

in the 2020 election, lost his primary. And Peter Meyer in Michigan, one of the 10 Republicans who voted to impeach Donald Trump, lost his primary. It looks like the other two who were up in tough primaries in Washington are going to win their primaries. Also fascinating, though, because Michigan, of course, has a traditional partisan primary, and Washington just instituted their

top two primary. So it's not a partisan primary. And lo and behold, look at the distinction between the outcomes. Now, also worth noting, Democrats poured lots of money into that Michigan primary to boost the election-denying candidate. They didn't put any money into those Washington primaries. But again, I think that's actually still causal. They didn't put money into the Washington primaries because it was a top two primary and they didn't think they could have the same impact. That's why they meddled in the Michigan primary. That was particularly depressing to me, not because Peter Meyer was a good congressman. He was, but good congressmen lose all the time. There were plenty of reasons, I think, why the most sort of conservative wing of the Republican Party of Michigan thought he was too moderate. You know, there's lots of other

votes. The same guy who's going to vote for impeachment also tended to be a more moderate Republican. But it really is this idea that the Democratic Congressional Campaign Committee thought it was okay to take the risk that the other guy would win. They've put $4 million, by the way, into Colorado to try to elevate election-denying candidates. The Democrats, including the ones on the January 6th committee, are considering, I guess, putting out a, what do you call it, denouncing statement? Yeah, a denunciation. A denunciation. They should. But also, they're in charge of these committees.

They put money into them. Yes. It's not good. And your point on the dispatch pod was really important, I thought, because a lot of people are saying, why are you angry at the Democrats and not Republican primary voters? Okay, fair. Republican primary voters are adults responsible for their choices.

But the ads, which dwarfed all of gibbs's own spending and mastriano's in pennsylvania and definitely the dude in colorado whose name i don't even remember all of his ads were run by democrats right it's not the ads were not this dude is an absolute conspiracy theorist lunatic the ads were he's too conservative. Donald Trump backs him and he likes patriotic education. Sorry, when you're talking to a Republican primary audience and you're saying he's too conservative for Michigan, that's not a negative ad in a Republican primary.

That's not an ad detailing the reasons why people have worries about this guy. And to be clear, the whole point, they've said out loud that they want this person to win the nomination so that he'll be easier to defeat in the general. So the whole, they know the point is to help him in the primary. So how are they doing that? Running ads that they think will help him with the people who are likely to vote in the primary by saying he's super conservative and just by upping his name ID. This guy had no name ID in this Michigan district.

He came out of nowhere. And so yeah, running hundreds of thousands of dollars of ads just with his name, it doesn't really matter what the message is. So yeah, that was, I have no objection. It's not like the Democrats need to not run a candidate against Peter Meyer to thank him for his impeachment vote. Run against him, of course run against him. But what makes it particularly bad is, and even if you're, I mean, politics ain't beanbag, even if you're sort of gaming the system to try to get the easier candidate to defeat. But when you're talking about a person who would be, who would get into office

and be all of the things you worry about. Well, that you say you worry about. What you say you worry about when it comes to the future of democracy. That's where this is utterly, just utterly beyond the pale. And I think that all of the anger and frustration directed at the DCCC is

completely, completely warranted and justified. All right, next question. Okay, you have one more. I have one more. Kansas pro-life amendment. In many ways, this is kind of the biggest news of the night. And big not just because a pro-life amendment went down in a red state, although Kansas is not as red as, say, Tennessee or Alabama or Mississippi, but it's pretty red. Kansas has a Democratic governor. Right, right. It's red, but not super red.

And it went for Trump by double digits, I believe. And the story there was the turnout was really high for this primary election that featured this ballot measure, and it wasn't close. What are your thoughts on it, Sarah? So a couple of things. Kansas, Kentucky, and Louisiana are weird states. They are deep red states in a lot of ways. And they all have Democratic governors. Right. And so you have to factor that in to understanding the voters in these states.

And I do think that's important because you're right. It's a deep red state when it came to the presidential. And then in 2018, they elected Governor Kelly with about 48% of the vote, by the way. There was an independent in the race who drew about 6% of the vote. So you could argue like that's sort of how that happened, but you know, that's not that unusual. And so in plenty of states, there's an independent, and yet still the deep red state will elect a Republican. That being said, first of all, I thought up front, this was a lose-lose for the pro-life movement. I don't know why they did this, because if they won it, people were going to say, it's a deep red state.

It doesn't matter. Right. And if they lost it, it was going to put enormous momentum behind the pro-choice side. So why would you take a lose-lose as your first time out of the gate post-Dobbs? Very strange. Okay. Turnout was through the roof. So if you combine the Democratic primary and the Republican primary turnout, you're still missing 50,000 more voters who turned out just on the ballot question, which means lots of people in

Kansas did not care who governor was going to be or anything else. They were just coming to vote on this question alone. And obviously the no won by a lot. Caveat number two. Whenever you're talking about a ballot measure, status quo comes in with a built-in advantage. It's hard to say exactly what that percentage is, but no always has, you know, is it three points? Is it seven points? Some advantage because status quo people are generally happy with slash don't want to change. Even subtracting that status quo advantage, this was a blowout. Caveat number three, how someone votes on a particular issue does not have much predictive value of how they're going to vote on candidates. And for good reason, right? If you actually put

abortion on the ballot, then people are telling you how they feel about abortion. If a candidate has an opinion on abortion that they don't like and an opinion on inflation that they do like, which issue is more important to them? And a whole bunch of other things mixed in about, you know, do they like the candidate? Do they want to get a beer with him? Do they know the candidate's name? What party does the candidate belong to? And a million other things. And that's why you can see very different outcomes on ballot initiatives than you do from candidate outcomes. And again, just look at the gun control stuff. I mean, that's had tons of ballot initiatives around the country. And so we can really compare and contrast candidate outcomes versus ballot initiative

outcomes. Of course, in those cases, it's been the opposite. In 2016, Hillary Clinton outperformed background check ballot initiatives in a bunch of liberal states, which was very surprising to me. With all of those caveats, this does change and rejigger my feelings on whether this issue will impact the 2022 midterm elections. shoe will impact the 2022 midterm elections. Because it really, turnout is the big thing for me that is changing my calculation. Recalculating. Yeah, that was the thing for me because my own thought was making it a ballot measure, which may, which to be clear, and I'm sure that someone's listening who's an expert on this, which may have been necessary from the standpoint of reversing, say, Kansas Supreme Court precedent.

So if you have to have a constitutional amendment process, for example, that process, like it does in Tennessee, may end up with a ballot measure. And that's what we did in Tennessee to actually reverse a Tennessee Supreme Court precedent. Longstanding Tennessee Supreme Court precedent on abortion went to a ballot measure several years ago. And they tried to do everything they could to kind of guarantee that this thing was going to pass, putting the ballot measure in the primary calendar when in a red state where there was thinking there would be much more Republican turnout. And then turnout, that's the thing that really was sobering to me, was the turnout. Because the turnout indicates priority to me even more than the outcome. If you had the outcome with roughly the same normal primary turnout, that doesn't indicate intensity as much as the turnout did. And that

turnout indicates intensity. And I'm starting to wonder if some of these issue polls that we've seen are maybe a little off on or misleading. Could you imagine a misleading issue poll, Sarah? I can't. Stop. I can't conceive of it. But this is all an appetizer, David. We will talk more about all of the politics on the Dispatch podcast with Stephen Jonah tomorrow. Yes, but I had to get 15 minutes out. I had to do it. All right, let's move on to the law portion

of this legal podcast. And let's talk about a new lawsuit, another lawsuit filed by the Biden administration. This is a lawsuit filed against Idaho. Idaho has a near total abortion ban that's about to go into effect on August 25th. And we have, this is another version of the litigation that we've already talked about, another version of the litigation that we've already talked about, which is what about emergency medical treatment, which is guaranteed under federal law? So Sarah, do you want to walk us through it? So last time we talked about this was Texas suing the Biden administration over a

guidance letter in which the Biden administration, you know, quote unquote, reminded hospitals that are accepting federal funds that they have to provide emergency stabilizing care to people. And Texas sued saying that wasn't guidance, that was actually changing the law. And I said that both the Biden letter was a press release and the Texas lawsuit was a press release, neither having any impact on the law. And the Texas lawsuit was a press release, neither having any impact on the law. The Biden administration lawsuit against Idaho, first of all, it's flipping it, right? So Biden is now suing Idaho. But it's under the same law that they sent that letter about, about hospitals receiving, rather, being required to perform emergency medical care.

Rather, being required to perform emergency medical care. And they're saying that the Idaho law in question is superseded by this federal law and therefore is unlawful. Supremacy clause. And David, unlike the Texas thing that we talked about, this is not a press release. I think the Biden administration wins this one. And let me tell you why. So the Idaho law in question, passed in 2022, is set to go into effect in a couple weeks. It makes it a crime to perform an abortion, imprisonment of no less than two years, no more than five years. You can have your professional license taken away, lots of bad things. Okay, so what are the exceptions? There's really only two.

It's an affirmative defense that the abortion was necessary to prevent the death of the pregnant woman. And if the person has already, previous to going in to get the abortion, reported to a law enforcement agency that they were raped. If it's in a minor, if the parents have already reported it as rape. Now, to those who, you know, we had arguments with, when we talked about the Missouri law and I talked about ectopic pregnancy, let me give you the definition of abortion and pregnancy in Idaho law. Abortion, the use of any means to intentionally terminate the clinically diagnosable pregnancy of a woman with knowledge that the termination by those means will,

with reasonable likelihood, cause the death of the unborn child. First of all, a diagnosable pregnancy, you can get human growth hormone results within about four days of fertilization and blood tests maybe even sooner. So this is any pregnancy. This isn't a heartbeat pill. Okay. Here's the definition of pregnancy. The reproductive condition of having a developing fetus in the body.

Oh. Anywhere in the body, David. In the body. Okay. So let's combine these two ones in the definitions portion of the chapter and ones in a punishment portion of the chapter. It's all chapter six, title 18 of Idaho Code. That means that the only time you can perform an abortion,

as an affirmative defense, by the way, you can still get arrested for performing the abortion and then it would be up to you to say, no, no, it was to prevent the death of the mother. So an ectopic pregnancy, as we've gone over before, is a fertilized embryo that implants somewhere other than the uterus. It has no chance of coming to term.

And it has some chance of rupturing in the fallopian tube, for instance, which could lead to death. But David, it doesn't necessarily. And as I shared with our listeners in a bit of TMI, as someone who has been through this, I was fortunate enough that mine resolved itself. Now, it involved a lot of doctor's appointments and everything else, but it did not result in my death. But according to this statute, as I read it, being diagnosed with an ectopic pregnancy would be a pregnancy. It would be detectable, like all the hormones are the same because you are pregnant, so you have that human growth hormone, and it would be a developing fetus in the body, so it meets all the definitions,

it would not result in death. Removing it would not prevent death. You don't know. And so according to Idaho law, as I read it, you would need to wait and monitor the ectopic pregnancy until it ruptures and only then be able to quote unquote perform the abortion, that is mind blowing because again, and I'm only, I can only report what I was told by my doctor at the time. I had to stay within 30 minutes of a basically certified surgical unit for a few days if I wanted to go home at all. Because if that ruptures, you don't have a lot of time on your side. And according to Idaho law, I think that's what you have to do or else the doctor can be arrested for performing a criminal abortion. All right, so what makes that unlawful? Because under federal law, supremacy clause, federal law wins,

the Biden administration seeking a ruling on that. David, I think they'll get it. I don't see how this Idaho law is even close to not falling under that federal statute. I'm a little surprised they didn't bring a constitutional argument. That the Biden administration didn't bring a constitutional argument? I mean, like Justice Kavanaugh said, I mean, there could be constitutional issues with any of these laws separate from any right to an abortion under the Constitution. I mean, I think there's a due process problem here. Actually, I think there's multiple due process problems here. Yeah, the, you know, the EMTALA clearly says that, you know, there's gonna, that emergency medical conditions are conditions that place a patient's health in serious jeopardy

or risk serious impairment to bodily functions or serious dysfunction of any bodily organ or part. And so, if your standard is life only with no exception for health at all, the conflict there seems to be just completely transparently obvious on its face. So I agree with you. It does seem to conflict pretty clearly with the MTALA. And also the definition of pregnancy that you read, wow. Okay, so, you know, because there's this big fight online over do any statutes encompass ectopic pregnancies

or do they all exclude ectopic pregnancies? And some of these statutes- Yes, and I've been told by a lot of non-lawyers, including those on Twitter, that I'm wrong and that none of them could possibly include ectopic pregnancies, that the definition of abortion excludes any fetus that is implanted somewhere other than the uterus. And I would point you to chapter six, title 18 of Idaho's code. Yeah. So this is going to be very interesting to watch. And I'm with you. I would expect that the Biden administration will win this lawsuit.

It's different from the Texas case where it was, as you said, it seemed, as we talked about, it seemed to be two laws that were substantially the same. Texas, our words are in slightly different order that say the same thing. Yes. So I look forward to people telling me how this somehow doesn't apply to an ectopic pregnancy, which again, I think would raise all sorts of other issues as well. But I think the Biden administration wins easily under Imtala. Yeah, the conflict here is pretty clear and the supremacy clause is pretty clear. I'm going to be interested to see how this plays out, but

tough at the moment to see how Idaho wins this thing, but happy to hear from commenters who have a different point of view. So we'll be interested in your analysis. This ad for Fizz is only 25 seconds long, but we had to pay for 30. Those leftover five seconds shouldn't just disappear, right? It's kind of like what happens to your unused mobile data at the end of each month. Except at Fizz, your unused data from the end of the month

rolls over so you can use it the next month. Hey, you paid for it, so keep it. Try the other side. Get started at fizz.ca. If you need some time to think it over, here's five seconds. Certain conditions apply. Details at fizz.ca. All right, next case. Now, we don't talk too much, even though we're just now talked about a new complaint, about district court cases. We don't talk about them nearly as much as we talk about cases at other levels for some pretty

good reasons. District court cases, it's the beginning of the process. It's not the, you know, district courts are rarely setting key precedent, especially if you're talking about a district court case that's at the beginning of the district court case. But every now and then, like in this Idaho lawsuit, and the lawsuit we're about to talk about, it's important enough to talk about a bit. And this is- Can I tell you my main reason why we don't talk about district court lawsuits?

Yes. It's because it's so fact-based. And that unless you are willing to read thousands of pages of record and discovery, that it's a little bit unfair for us to comment on a district court proceeding versus at the appellate level where the facts have been decided. Facts have been decided. Key facts are summarized in the appellate court opinion. Yeah, that's a very good point. But nevertheless, we're going to talk about

another district court case. And this is a case, well, let me just say there is a downside, Sarah, to always getting your news by reading as opposed to hearing. So I don't know how to pronounce the name of the plaintiff in this case. The plaintiff is named Serena Fletes, F-L-E-I-T-E-S. I'm going to say Fletes or Fletes, I don't know. Her story is horrible. So this is a case that she has filed against MindGeek, which is the company that owns Pornhub, and also filed a lawsuit against Visa, which helps MindGeek monetize its pornographic content. And her story, as alleged, is really horrible. When she was 13 years old, a boyfriend pressured her into making a nude video. Then again, all of these are her allegations that without her knowledge or consent, it was uploaded to Pornhub, whereas posted under the very subtle title, 13-year-old brunette shows off for the camera. The video received hundreds of thousands of views. It was downloaded and then re-uploaded again to Pornhub. One, just one of the re-uploads got 2.7 million views. She tried to get the video removed.

She contacted MindGeek posing as her mother, noted that it was child pornography. MindGeek didn't remove it for a long time. It just kept coming back, kept coming back. As you might imagine, the existence of this video had a dramatic impact on her life. She was bullied, harassed at school. She began to skip school. She battled depression and anxiety. She self-medicated with

drugs. She attempted suicide. Then when she was in the midst of her drug addiction, she had a relationship with another man who pressured her into making more videos. He sold them on Craigslist. She became somewhat well-known because she was featured in a Nick Kristof feature, a December 2020 New York Times story called The Children of Pornhub, that talked about how Serena was not the only person who faced the kind of challenges that she was facing, that Pornhub was extraordinarily permissive only had a handful, as few as six, but never more than 30 untrained minimum wage contractors, according to the lawsuit, who monitored the daily uploads. And they were paid bonuses not for catching child porn or videos of rape or sexual assault. They were paid bonuses based on the number of videos they approved. To make a long story short, after the Nick Kristof story came out, Visa and MasterCard sort of brought down the hammer on MindGeek for its failure to police its content. Visa, I mean, MindGeek responded by removing, and again, this is the allegation in the case, over 10 million unverified videos from its sites constituting over 80% of its content.

Visa then went back into business with Pornhub. So Serena Suess, she has an absolute tremendous case against MindGeek. Her case against MindGeek is, I think, uncontroversially solid. This is an institution that profited from child pornography. There's no credible argument that it didn't know it was doing it. MindGeek is facing an enormous liability. Now, different questions to whether it's collectible, we can get out of that. But Visa, the Visa piece of this is particularly interesting because it's got some pretty strong defenses. I mean, can we hold Visa accountable for the bad acts of all of its

vendors? Weren't there a whole lot of people who did bad things before Visa even was a piece of this pie? How can, you know, the people who directly uploaded the pornographic content didn't get any money through Visa? How can you hold Visa liable? And that's going to be one of the key questions in the case. And the court said, Visa, it can potentially be held liable under a conspiracy count in the Trafficking Victims Protection Reauthorization Act, TVPRA. It's going to be interesting to see over time how that claim fares. But for now, Visa is on the hook, and that's a pretty darn big deal. Sarah, your thoughts? The part of the complaint that just floored me was not the, I mean, just awful facts about the videos and the women involved, in part because I guess you just sort of know that.

Like, obviously, of course. I mean, the video was titled 13-Year-Old. This isn't like, we didn't know she was 13. Literally says she's 13 in the title. No, the part that floored me legally was that they had six and no more than 30 people hired to take down illegal content and paid them bonuses if they didn't do it.

That's a problem. Right. The legally interesting part about Visa, of course, is that Visa's actions clearly affected their content moderation. And that's unique to some of these lawsuits that I think are losers from the start. This idea that you can tie in everyone involved in something, even though they didn't know or had no effect on the illegal activity. Here, there actually is a very small, in my opinion, but nevertheless existent nexus to Visa. That being said,

I don't think that this will end up the way you want it to end up, but it's more interesting than most of them because Visa's actions result in 80% being taken down, then Visa comes back, and it goes back to business as usual. Yeah, that's what's interesting to me was, and this is what the judge highlighted. So the judge, Judge Carney, is a George W. Bush appointee. That's what the judge highlighted was the incredibly dramatic effect that Visa's action had on the actual business.

But just because, like, it's more than most of these cases have, but I don't think it's enough. So this is what the judge said. Visa has claimed it doesn't have any control over MindGeek, and the judge responds this. Visa quite literally did force MindGeek to operate differently, and markedly so, at least for a time. And the astonishingly strong response from MindGeek, who is otherwise alleged to stonewall and even harass victims, is consistent with plaintiff's allegations that unnamed former MindGeek employees have explained

that MindGeek constantly worries that Visa could cut it off and make decisions based on what content the major credit card companies are willing to work with. So all of that I think they'll be able to prove. What they have to prove, though, is the Visa side, not the MindGeek side. Of course, MindGeek was worried about Visa pulling their platform.

But this will have such huge ramifications across so many industries. Like, is Amazon responsible for shoplifting at Walgreens? Because we know that some amount of the product that's shoplifted, deodorants and stuff, then show up on Amazon. Amazon says they put in some controls. They want invoices for how you got your product, for instance. But no doubt that these shoplifters are very responsive to Amazon's incentive structure. So is Amazon then like felony shoplifting? Can we charge Amazon with that? I don't think so. And if you don't think so, then I'm not sure Visa's on

the hook for Pornhub. I think one of the, the other issue though with you, Pornhub is, let's imagine you go to Visa and you say, well, we sell guns, okay? Legal activity. A lot of people don't like it, but absolutely illegal activity. But it's quite obvious if you're visa and it's quite obvious that the actual legal sale of guns is a mask for about 80% of your business being in illegal transactions. And you're monetizing these illegal transactions. And it's plainly obvious. I mean, after all, there's nothing subtle about, and the lawsuit, which is much longer, and the court opinion, which is much longer than what we summarized, describes how there was nothing subtle about Pornhub. There was nothing subtle about it at all. about Pornhub. There was nothing subtle about it at all. This was not hard to decipher, hard to discern in the same way like your analogy with Amazon. It's not obvious if deodorant is stolen.

It's obvious if a video says 13-year-old girl that this is, it's broadcast broadcast it's a confession right it's a confession and so it was plain open notorious obvious completely out in the open brazen that this is a business trafficking that is exploiting and profiting off the trafficking of minors and off of things like rape and sexual assault that to me is the part about this that makes this so interesting was how openly notorious and obvious. It would be like, here's the gun dealer and they have a part of the website that says guns for sale legal, guns for sale without background checks. And Visa facilitates it all. I think that this lawsuit will not turn out the way that you want on the law. But one, people who are listening to this who occasionally dabble in some Pornhub should go read the facts of this case because you are part of the market and the supply and demand curve here. Visa should pull their platform from Pornhub.

Yes, absolutely. Forget the law to the point, as you said, where 80% of the content is illegal guns here. But it's worse than that. Yeah. Because illegal guns aren't... The creation of the gun itself is not a crime. Yeah, the malum prohibitum versus malum in se. Yeah.

An illegal gun is malum prohibitum. A 13-year-old being raped in a video for pleasure is malum in se. Yeah, exactly. And I wanted to put that, and I wrote about this in my Sunday newsletter. We can put it in the show notes. I wanted to put it out there for that reason as well, Sarah. Number one, highlight it because it really is an interesting legal case, very interesting legal case.

And I'm with you. I think the case against Visa is much tougher, much tougher than the case against MindGeek. But also, people need to know what they are enabling and subsidizing. Even if they're going to a site like this, even if they're not clicking on the worst of the worst, they need to know what this is and what this entity is. And you can't wash your hand of it by saying, well, that's not the content I consume on Pornhub. Sorry, sorry.

This is a rotten to its very core enterprise. And the other interesting thing here, Sarah, there's a lot of anger on the right against corporate activism. In other words, people don't want corporations to take actions based on sort of corporate political values. I wonder, does that mean that a conservative should now support Visa staying in business with Pornhub? Because is that really the principle that we want to create now? Is that businesses like Visa should have? for example, that DeSantis has championed, basically preventing corporate entities from making viewpoint-based kinds of decisions regarding their businesses. We need to think this through

because I don't think you want a legal regime that Visa could argue binds it to staying in business with Pornhub. That we do want Visa to have the ability to cut ties with Pornhub. So there's some value in corporate liberty here. And we'll take a quick break to hear from our sponsor today, Aura.

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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 All right. Next up, Justice Alito goes to Rome. Yes. Go for it, Sarah. So, as the justices are wont to do with their summer vacations, they travel. Weirdly, several of them seem to travel to Italy. Justice Alito is no exception. He gave the keynote address at the 2022 Notre Dame Religious Liberty Summit in Rome. You may know this because it made headlines in a specific section where he went off script and, well, I'll read what he said.

I had the honor this term of writing, I think, the only Supreme Court decision in the history of that institution that has been lambasted by a whole string of foreign leaders who felt perfectly fine commenting on American law. One of these was former Prime Minister Boris Johnson, but he paid the price. He goes on to say, but what really wounded me, what really wounded me was when the Duke of Sussex addressed the United Nations and seemed to compare the decision, whose name may not be spoken, with the Russian attack on Ukraine. Okay. This has gotten a lot of criticism.

Obviously, he's talking about Dobbs and the abortion decision. And so we got a lot of requests to talk about this speech, David. I listened to the whole thing. It's about, actually, it's only about 30 minutes because there's a long intro. So the video is about 40 minutes, but his speech is about 30. Let me give some explanation. So the speech was about religious liberty and he was talking at that point about how positive law, where things are specifically laid out of what you cannot do, isn't much of a protection because a judge can simply shrink positive law. And then it seems like he is about to talk about various

cases in European countries where that has been the case, because they all have positive law, and where there have been egregious examples of religious liberty not being protected. But then he says, but basically, I'm loathe to criticize other countries' courts and their interpretation of their law. Like, I'm not a law professor. It's both not my job. It's not my expertise. And then he kind of looks aside and is like, basically, but they feel free to criticize me about American law, something they don't know anything about. So that's the context for what he's saying in the example where he's criticized. The second point, the speech itself said that it was going to be about why it's important to protect religious

liberty regardless of whether you yourself are religious. And in a time where secularism is on the rise or people even think religion is not just neutral but bad, how do you convince those people that protecting religious liberty is in fact good for a flourishing society? And he gives an example of a Green Bay Packers fan. It's a long example with lots of meat to it. But in the end, three lawyers walk into a courtroom. One is wearing not a cheese head, but a very respectful yellow and green hat. One is wearing a kippah and one is wearing a hijab. Why are those second two allowed to cover their heads, but not the first guy who really, really loves the Green Bay Packers? In this example, by the way, his marriage has fallen apart

because of his obsession and loyalty, faith in the Green Bay Packers. He prays to St. Vincent Lombardi, you know, yada, yada, it goes on. And I was actually really looking forward to the answer to this, to Alito's answer to this at least, of yes, why should we? And so his first answer is,

because the Constitution says so. And he says, but I get it. Not everyone is like me. We're like, that's the end of the story. What is sort of the first principles? Then he says, international law says so. And he points to the Declaration on Human Rights and a bunch of other sort of restatement-y equivalents from the UN and others about international law. And he says, yeah, but A, that's not that different than the Constitution in terms of like, okay, but what are the first principles? And B, positive law, of course, is in and of itself problematic. And then he never answers the question, David. Right. I was, what? Huh? I even went back and listened to it a second time and I don't hear the answer.

So I'm confused about that part. Of course, giving a speech about religious liberty to the Notre Dame Religious Liberty Conference, it's hard to imagine a more receptive audience to thinking that religious liberty is important. And so I found myself a little frustrated, I guess, because, and obviously you guys know me and you guys know what I wish he had said. When you're speaking to an audience that adores you and that will take everything you say very seriously, that's when you need to give those sister soldier speeches to tell your audience something to challenge them and make them feel a little uncomfortable.

This wasn't that. Okay, that being said, that's my beef with like the speech, I guess, as a whole. He talks... Did you have beef with the joke? So that's my second point. I then was like, okay, I don't quite understand why everyone got have beef with the joke? So that's my second point. I then was like, okay, I don't quite understand

why everyone got really upset about the joke. So I went and read a bunch of op-eds and opinion pieces from far-left websites to try to understand why they're upset. Why the joke was offensive. The joke was offensive because they don't like the Dobbs opinion and they don't think it's funny

to joke about taking rights away from women in the United States. I hear you, but that wasn't really the joke, and you weren't going to like anything he said. You don't like the Dobbs opinion. You think it was badly decided. You're sort of assuming, I think, some things that maybe aren't there in terms of, you know, like in one line it said, you know, it's not funny to joke about taking away rights from half the country because of your minority religious beliefs. You're taking rights away from millions of women, many of whom will die. Okay. Again, we talked about this at the beginning of the podcast. It's actually not that I'm somewhat sympathetic to that argument, but give me a break.

That he was making a point about criticisms of an American Supreme Court opinion by foreign leaders, which I think is fine. One of the other types of criticism, so there's the I hate Dobbs criticism, and then there's the Supreme Court as an institution shouldn't be wading into politics. They shouldn't be talking about cases pending before the court. He undermined the institution and American foreign policy by criticizing foreign leaders while abroad. Okay, except the normal iteration of that

is you don't criticize American leaders while you're abroad. Right. Second, he wasn't talking about any pending cases. He was talking about criticisms of an opinion that's already out, not about abortion as a whole or abortion rights or any state laws that might come in.

He's literally talking about what other people said about an opinion he wrote. laws that might come in. He's literally talking about what other people said about an opinion he wrote. And three, I don't, like, they made the point of like, this is why they don't talk about things in their confirmation hearings. Again, he's not, those questions are about what do you think about the right to an abortion? Or what do you think about religious liberty? Yes, in confirmation hearings, they tend to say, I'm not going to answer fact-based questions that could have come before me as a justice on the Supreme Court. He's not doing that. He's talking philosophically about religious liberty, and then he is basically commenting on how he saw the criticisms of a public opinion. So I thought this opinion, or sorry, I thought the speech was cool on religious

liberty. I thought it might've been more, it was missing some things for me personally. I think the criticism of him is stupid, meritless. Oh, way overblown. Way, I mean, way, way overblown. The religious liberty point you make is really, really interesting because when I'm talking, I look at, if I'm talking to friendly audiences about issues that really matter to me, I can tend to have a couple of approaches. One is the sister soldier approach that is, hey, wait a minute, you know, we don't need to be sitting on our high horse here. We've got a lot of work to do. Another one is a more of an educating approach because

a lot of times like-minded people, when they get together, they don't learn how to make the case for something to others who are not of the same mind. And for a deeply religious audience, the value of religion to them is sort of so self-evident that making the case to them as to why religious liberty is important is, of course, but what is the case? How could you educate people to make the case that religious liberty is important to people who don't share your values?

And I think that that's a very important teaching tool. And so, you know, I've spoken to religious liberty, about religious liberty to friendly and to hostile audiences for a lot of my life. And I tend to make a two-fold argument. One is a principled argument. One's a more pragmatic argument. And the principled argument roots religious liberty among these sort of fundamental human needs. So, for example, express, and live according to your ultimate and deepest values, so long as the act of living those values does not diminish another

person's liberties. Think of religious liberty as a protection of your ability to speak, to believe, express, and live your core values. When you are talking about that, you begin to see the value of it. It's rooted in human agency and liberty in a very fundamental way, but then there's this pragmatic aspect as well. What happens to human beings when you deny that right? And the history is really clear. I'm listening to this podcast called Revolutions that Jonah has recommended, and it starts with the English Civil War. And what's incredibly striking to me about the dawn of the English Civil War, and one of the delights of this podcast is I know that there are listeners who are right now, their ears are pricking up and they're going, this is my area of expertise.

So forgive me in advance for anything I misstate. But one of the things that's really interesting is how much the consolidation of spiritual power in the hands of the king was destabilizing. That if you had a theological dispute, so for example, trying to tell Scottish Presbyterians that you're all going to read from the Book of Common Prayer absolutely made a lot of those guys lose their minds in anger because what was happening was the sovereign was telling them to contradict their deepest values. And when you have a society that does that, where the sovereign takes the role of commandeering these deep values and prohibiting their free exercise, you create the conditions for incredible instability and many, many times armed conflict. Why? Because that ability to believe, express, and live according to your, those deepest values

is so fundamental to a person's identity. So that's kind of a short version of how I talk about the value of religious liberty. The problem with that for me though is, David, it doesn't need to be religion. Like the fact that religion loomed so large in those eras becomes sort of circular. So then when

the sovereign did something against religion we say it's about religion what if it was just about what a large minority or plurality held dearly and what if that large plurality this is where i think the green bay packers example from justice alito's speech is too dismissive obviously it was meant to be dismissive but what if that deepest held value is about climate change? It's not necessarily about religion. And so in that sense, to protect religious liberty is to assume the role that religion specifically plays for people in terms of their conscience instead of other conscience-bearing things. And now Justice Alito has a couple defenses to this. One, he says what you just said. Protecting religion means

protecting speech and assembly and all of these other rights that we hold dear. Two, he says the history of religion, there have been very few social progress moments that weren't driven by religion. Think abolition, William Wilberforce, civil rights, the Reverend Dr. Martin Luther King, all of these people driven by a deep religious conviction for social justice. for social justice. I think that's true, although if you weigh it in the balance, there's William Wilberforce on the one hand and Bloody Mary on the other hand. And there's the Reverend Dr. Martin Luther King

on the one hand, and there's William and Isabella on the other hand. Yeah, the instrumentalist argument can really suffer depending on who you're looking at. Yeah. And John Paul II, he credits with having a huge role in ending and defeating the Eastern Bloc communist Russia, undoing the Warsaw Pact. But

again, I can point to religious leaders who very much brought about bad historical events. Well, the Russian invasion of Ukraine is in many ways motivated by Vladimir Putin's religious vision. So that purely instrumentalist argument, I think, we protect religion because religious people are good people who do good things,

has some problems. It absolutely has some problems. I do think it's worth reminding people who only dwell on the negatives the vladimir putins that there is a mother theresa there's a martin luther king you know that these are the it's worth reminding people who are negative about the virtues of about how religion can manifest itself in tremendous virtues so i think that there's value in that but protecting religion because religion is good, yeah.

Doesn't that go more to the inherent person than a value of religious liberty? To me, you could, it's hard. I am not convinced that the value of religious liberty is different than the value of conscience liberty. And that the historical examples are simply because religion played such a big role for the last of conscience liberty. And that the historical examples are simply because religion played such a big role for the last many millennia,

but it's playing less of a role now. And so when we think about the future, it's going to be harder and harder to justify as religion per se and what that is. Well, you know, in American religious liberty has been interpreted to encompass more than religion. It encompasses the absence of religion as well. It encompasses an atheist is protected by the free exercise clause. It is integrated, religious liberty is integrated with a host of other protections that add together from free speech to freedom of association to due process as well, for example, that protect that individual conscience, the rights of conscience, the right to expression for religious and non-religious alike. And I think that the addition, I think if you had a constitution that only protected free exercise in the category of expression, it would be a deficient constitution.

I agree. But the question to me is, do you include religious liberty along with all of the other expressions or protections for conscience and expression. And I think so. I agree with that. I do, actually. So we end on a point of solid agreement here. David, before we go, though,

I do have one great case that I need to read you. Okay. A woman in Mississippi was sentenced this week to 10 years in prison in a murder-for-hire scheme. She hired a hitman to kill her husband. Tale as old as time. Do you want to guess who the hitman worked for? Let's see.

Let me guess. So she reached out to find a hitman. Yep. Google hitman to kill my husband. Yep. So she reaches out to find a hitman. There's an eager hitman willing to supply the services. Yep. So she reaches out to find a hitman. Uh-huh. There's an eager hitman willing to supply the services.

Let's do crime. Yeah, that's 100% FBI agent. Absolutely. She hired an FBI agent to kill her husband. And it's like, why are people not, they're not listening

to this podcast? But someone, someone made this great meme from Arrested Development. I'm a huge Arrested Development fan. I think you are too, David. Oh, for sure. That's on the Mount Rushmore. And it's the great scene between Tobias and his wife, and they've obviously changed out the words of the script, but it says, she's saying to him, we could try to hire a hitman who isn't the FBI.

Next scene, she says, well, did it work for those people? And he says, no, it never does. I mean, these people somehow delude themselves into thinking it might, but it might work for us. Oh my goodness. Yeah. Stop trying to kill your spouse, people. If you're Googling how to do crime, you can be sure that the eager response to you is federal law enforcement. Every time. Oh, gosh. All right.

That's a good note to end on. All right. Well, thank you guys for listening, as always. We'll be back on Monday. Do we want to tease Monday? I'm really excited. The Dooms. We'll be talking I'm really excited. The Dooms. We'll be talking about

The Dooms. The Dooms. That's all we need to give. That's right. That's it. The Dooms. Alright. We'll be talking about The Dooms on Monday so you cannot miss that. Please rate us. Please subscribe. Please check out thedispatch.com and we'll

be back. I said Monday. I meant Tuesday. We'll be back on Tuesday. That's the sound of fried chicken with a spicy history. Thornton Prince was a ladies' man. To get revenge, his girlfriend hid spices in his fried chicken. He loved it so much, he opened Prince's Hot Chicken. Hot chicken in the window. This is one of many sounds in Tennessee with a story to tell. To hear them in person, plan your trip at tnvacation.com.

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