Advisory Opinions - Last Dance for Pandemic Law

Episode Date: February 8, 2021

After duking it out over their Super Bowl disagreement, David and Sarah get into the meat of today’s episode: The ongoing saga of religious liberty in the age of pandemic law. On Friday, the Supreme Court partly sided with a California church’s First Amendment challenge to religious service restrictions enacted by Democratic Gov. Gavin Newsom. Per David: “Pandemic law—while not entirely gone—is mostly dead.” Stay tuned to hear about technology company Smartmatic’s lawsuit against Fox News, Trump’s First Amendment defense in his impeachment trial, and more. Show Notes: -South Bay United Pentecostal Church v. Gavin Newsom. -Typography for Lawyers by Matthew Butterick. Learn more about your ad choices. Visit megaphone.fm/adchoices

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And we've got lots of interesting stuff to cover. We're going to start with a raging legal dispute regarding the Super Bowl that broke out in internal dispatch communication channels in the middle of the game. So this is going to be like, you know, blowing the lid off of like, say, New York Times Slack channels, Sarah. This is blowing the lid off of dispatch group texts. So we're going to have to settle it. You and I, we had a legal dispute. Throwdown. A throwdown on group text. Then we're going to talk about a ruling on California churches, the continuing saga of California churches and pandemic law. We're going to talk briefly about a giant lawsuit filed by Smartmatic against a whole collection of people, including Fox News, leading Fox News personalities.

And then we're going to also discuss Trump's First Amendment defense in his impeachment trial. And then we've got a few other additional details, including a wedding invitation to discuss at the end, Sarah. So, but first, let's start with the Super Bowl. All right, you know, look, you don't tune in here for football commentary. This is a legal, political nerd podcast. But there was a legal dispute that arose. I was kind of crowing over Tony Romo's prophecy and how Tony Romo is the greatest of the great in football commentators because he had said repeatedly that Kansas City holds.

Kansas City holds. They have a defense and they even showed this video evidence of how much Kansas City holds wide receivers. And then what happens in the first half of the game? Kansas City keeps holding and keeps holding. In which Sarah then broke in and said, those weren't holds because the passes. Whoa, whoa, whoa, whoa, whoa. Nuh-uh.

Well, those weren't penalties. Those weren't penalties because the passes were uncatchable. And I said, well, the best way to avoid getting penalties for not catch, best way to avoid getting penalties for holding catch a best way to avoid getting penalties for holding is to not hold. And you retorted Sarah. Um, the best way to avoid jail is not to speed rather than trust the police.

They won't charge you with murder, Sarah, Sarah. Okay. Well, first of all, I think we should actually go to what was actually said, not David's, like, version of events.

Romo said early that Casey holds all the time. Romo was right. Romo was always right. David French. Steve Hayes. You also like the Aquaman. Yeah, he called it the Aquaman. The Aquaman.

And the Romney plan. So I'm beginning to discount your questionable opinions. Me, yeah, but the pass was the definition of uncatchable unless they now make 11 foot seven inch receivers. David, oh, so you did the math on the acceleration of an unimpeded wide receiver, did you, Sarah? And I said, it was 15 feet in the air. And you said, you're speaking of the end zone call. Oh, so did the math on the maximum vertical reach of an

unimpeded wide receiver. Did you, Sarah? And I said, well, frankly, both of them were uncatchable. One was 15 feet high and the other was 15 feet downfield, David. And this is the important part, listeners. I mean, my best advice on avoiding holding or PI penalties is not to hold or commit PI rather than trusting that the officials will deem balls uncatchable. Go Bucs. So let's dissect that for a second. One, not a neutral observer, given that in your judicial opinion, you included one party and said, go that party. So already recusal in order,

bad news bears. Second, you're the one who introduced the analogy that you shouldn't do something if the person who decides your fate could possibly slap you with a totally unreasonable penalty based on no evidence. So I said, actually important here because Steve Hayes then says in his nihilistic fashion, none of it matters. The Packers lost. It was so sad. I know it's so sad.

And then he tried to bring me down by talking about my Titans when I was just thought they had a good season and was happy. It's true. He went after David

pretty hard about the Titans. In fact, if we skip ahead here, Steve Hayes says, Can you remind me when did the Titans go out? David, opening round of the playoffs,

but we don't have your expectations. We had a great season. Good times, Steve. Those expectations grow with every Super Bowl win. It's a burden, but I'll carry it. That was funny. Okay. So back to none of it matters. The Packers lost. I said, the best way to avoid jail is not to speed rather than trust that the police won't charge you with murder. Now, David, my point here was addressing your earlier point that you shouldn't ever commit holding because then the officials don't have to

follow the rest of the evidence. They can just go evidence free. As long as you were holding, they don't have to follow anything in the rest of the rule book. You don't have to trust them to do that or hope that they'll do their jobs because the uncatchable rule just, you know, if you're holding, just throw the book at them. And my point is you could get pulled over for speeding by the police and they could just at that point, according to your logic, decide to have whatever penalty they want. Because maybe you did commit that murder that you like. Maybe the murder was committed by a human. And therefore, similar to there was a ball. Uh,

it doesn't matter whether the ball was uncatchable and it doesn't matter whether that human was you. So they just arrest you for murder. And according to David logic, um, the way to avoid being charged with murder is never to interact with the police. And the way to avoid getting a holding penalty is to never commit holding, even if the ball is 30 feet up in the air.

And Aquaman himself could not use his powers to catch that ball. The Aquaman. Is that what Aquaman does? I haven't seen Aquaman. He uses powers to catch the football. Does heaman does? I haven't seen Aquaman. Use his powers to catch the football. Does he have powers? I hope he has powers. Oh, he's got a lot of powers.

I mean, he's mid-tier. Nope, nope. I'm so sorry I said this. Please address my original point. Okay. No, see, my view is the best way to avoid a holding penalty is not to hold

so that you don't have to trust the judgment of the officials to bail you out with another portion of the rule book and to continue with your speeding analogy. Here's my, let me tell you a real world incident that occurred. So I'm driving through, I think it was Fairview, Tennessee. Tennessee readers may know where that is. It's a little bit to the west of Franklin. Anyway, so I'm driving back from a canoe trip and I'm driving through Fairview, Tennessee. And there's part of Fairview

that has a lower speed limit and then a part that as soon as you get out of town, the speed limit ramps up dramatically. So I'm driving and I can see with my eyes, I believe it's a 50 mile an hour or 55 mile an hour speed limit sign. I immediately accelerate to 55 miles an hour, at which point I'm pulled over by the police, and I pull over on the side of the road, probably 100 feet from the actual sign that says 55. And he says, you're going 55 and a 40. And I said, respectfully, Mr. Police Officer, the sign is right there. And I was going 55 and a 55. And he said, oh, but the 55 only starts from that point forward. And I said, is that correct? Are you sure about that? And I wasn't sure about that. Honest question. He said that's where it started. Where do you think it started, David? Do you think it starts before the sign?

From when I see it. From when you see it? When I can see the sign. Yes. Oh, that's... That's when it's providing me with notice of the law. And so I thought there was a gray area here, but the point is, the point is how could have I avoided getting the 55? No, this isn't analogous at all, David. You were speeding. Oh, it's perfect. The problem here is that the penalty, like you were speeding

and the penalty for speeding is a speeding ticket. The problem here is that the penalty for holding is wildly different if the ball is uncatchable. So it is part of the initial determination. So the ball was uncatchable, therefore the penalty cannot be the same speeding ticket. It would be actually, ha, let me give you closer to your analogy. You know how there's a regular speeding ticket that's $100,

but if you're speeding in a work zone when workers are present, it's like $500? Yeah. But you have to determine whether workers are present. So in that version of your events, you were speeding. Therefore, you get a speeding ticket. They committed holding. They should get the holding penalty. But because the ball was uncatchable,

you don't get the penalty to move all the way to the one yard line because there weren't workers present. But then they just ignored that rule and gave them the $500 penalty as if workers were present without even addressing whether workers were present. It's like they didn't even think about the fact that workers needed to be present. The ball twice was uncatchable. Now look, I actually was rooting for the Bucs. So all well and good, but it made for an incredibly boring football game because after the half, Kansas had to then play a different ball game because of how far behind they were.

And so it wasn't very good because, and you know, this is sort of the fun of football, I guess, but if Mahomes had only been down by seven at the half, then, you know, you throw some three yard passes, you punt, uh, or sorry, you get the field goal when you have the opportunity when you're down by fricking 20 points, you've got to throw long balls, risk interceptions. You, you have to go for it on fourth down. There's no point in kicking the ball. Um, and so, and it never just, it never gelled. It never came together because they were having to take a lot more high risk plays.

So it didn't work. It was maybe the most boring second half of a Super Bowl game in like, what, the last 10 plus years? It was real boring. I'm interested to see what you thought of the halftime show. But, but, and maybe we should save this to the end.

We have to talk about the Jeep commercial. Oh, we do need to talk about the Jeep commercial. Okay, we'll save the Jeep commercial to the end. And the halftime show. Should we save that? Because I have thoughts. Yeah. And I will say this.

I will agree with you on the second half, with the exception that, well, two things. And again, I know you're not tuning in for football commentary, but here's one small bit of football commentary. I think the pass interference calls and all of that, although they obviously tilted the balance of the game against the Chiefs at the end of the first half,

the more we watched the game, the mores at the end of the first half. The more we watched the game, the more I think it would have been moot. Kansas city was, it was as if they're playing without an offensive line. I mean, poor Pat Mahomes. Yeah. Yeah.

I mean, it'd be actually really, I think frankly, Tampa Bay with any quarterback would have won that game. And I know that's blasphemy. I don't mean the whole season. I mean, this game.

Right. And vice versa. Tom Brady with the Kansas City Chiefs and no offensive line would have been crushed. Yeah, that's true. And Mahomes pulled off some pretty ridiculously remarkable plays with no offensive line. And that was the only bit of excitement was I was just,

I was yelling at the screen, live, Pat. Live. We want to see you keep playing. But okay, people don't tune in for this, but I will say in response to your last analogy that if you're going to speed through what might be a work zone, don't leave it up to the subjective point of view of the cop as to whether the workers are close enough to be present. Look, maybe so. To be deemed present. But there is objective truth in this world. And while you may be wise not to speed through a work zone when you know there aren't workers present and leave it up to the officials, the law enforcement officials, to agree with you. Although, again, I think it's pretty objective

whether there are or are not workers present. There's objective truth. There weren't workers present. The ball was uncatchable. So while you may be sort of wise in like a practical sense, that's not the way justice works, David. And justice was not done.

All right, let's move on from the Super Bowl to the Super Bowl of religious liberty in the Supreme Court of the United States, Sarah. Impressive segue. Thank you. Thank you. It's something that is vitally important legally and a whole lot fewer people care about than the outcome of Buck's chiefs. But we had yet another ruling in the ongoing saga of religious freedom in the pandemic. And there's a couple of takeaways here. One is that pandemic law, while not entirely gone, is mostly dead. In other words, conventional legal doctrines are going to apply and much more likely to have conventional legal analysis apply to religious liberty claims made during the pandemic. Number two, Amy Coney Barrett and Judge Kavanaugh were instrumental in denying some of the relief in this case regarding singing and chanting in church,

which I thought was also interesting. And let's just say number three is, why does the Supreme Court have to be so stinking confusing in some of its important rulings, because this one is kind of a mess. It's kind of a mess. Essentially, what you're dealing with here are a challenge to bans on indoor worship, a challenge to capacity restrictions in indoor worship and a challenge to singing in indoor worship. And the way it worked out is that the ban on indoor worship was enjoined. There was the attempt to lift the capacity restrictions of 25% limitation on indoor worship services. That attempt was denied.

That was denied. So the capacity limitation can still apply. And the attempt to lift the ban on singing and chanting during indoor worship services was denied. And the combinations here are interesting. You have Thomas and Gorsuch who say they would grant the application in full. You have Alito who would grant the application in respect to all of the capacity restrictions on indoor worship services and the prohibition against indoor singing and chanting and would

stay for 30 days in injunction against the attendance caps and the prohibition against indoor singing and chanting. Then you have Amy Coney Barrett, and in a very short statement, joining with Kavanaugh to say that she agrees with Gorsuch that on everything except the indoor singing and chanting, and then you have the three more progressive justices who began by saying justices of the court are not scientists, nor do we know much about public health policy. And it would those three justices would be fully on board with pandemic law by and large. And here we are. Here we are. Sarah, help us make heads or tails of this. Well, important to talk about the posture. This was not an opinion of the court. Like if you go to the Supreme Court website

and you want to find this, you click on the opinions tab and then you go to opinions relating to orders. So this came up as an application for injunctive relief. Also fun because it is Amy Coney Barrett's first published written work as a Supreme Court justice. It is one paragraph. So the next time that she has any published writing from the court and it's two paragraphs,

we can say that is the longest writing from Amy Coney Barrett as a Supreme Court justice. So there'll be lots of firsts coming from Justice Barrett. Yeah, so this seems to happen from time to time. Guys, get ready for some buckets. So you have the three buckets of relief, and then you have a messy, messy set of opinions where you put different justices' little tokens in each bucket. And any bucket that wants to be granted needs to have five justice tokens. And sometimes it's confusing why some of those middle granted needs to have five justice tokens. And sometimes it's confusing why some of those middle buckets don't have five.

And this is one of those cases. Now, on the singing, which I think is by far the most interesting one, because we do sort of know, we think we know where everyone stands on the third bucket, the singing and chanting bucket. This is where explaining legal standards to non-lawyers, it's like I hear myself. I know what I'm about to say and how annoying this is going to be. So the standard for injunctive relief is that you, the person who wants to prevent the government from doing something in this case, have to show that you're going to succeed on the merits. You have a likelihood of success on the merits. But then when we get to the merits and you're talking about a burden on free exercise, then you have strict scrutiny, where the government has the burden to show that they

are using the least restrictive means necessary to achieve these important ends. Well, because of that, you end up in kind of this weird, burdeny, shifty world in which what Justice Barrett's point is, is that she would not grant the injunction against the singing band because they didn't show that they were likely to win because the record down below is very confusing on whether, for instance, you can sing if you are, for instance, filming a movie. So there's a separate treatment for Hollywood in California. They have their own order in California,

their own regulation. And so as Amy Coney Barrett says, of course... What's a chorister? Chorister. Okay. Of course, if a chorister can sing in a hollywood studio but not in her church california's regulations cannot be viewed as neutral but the record is uncertain and the decision below unfortunately shed little light on the issue as the order notes however the

applicants remain free to show that the singing ban is not generally applicable and to advance their claim accordingly. And Justice Gorsuch, in his separate writing, addresses this too. There's this concern that it seems like Hollywood can sing their little hearts out, but that no one else can. It's not just churches, but of course, because of the way free exercise law works, it matters. If there's any exception, it doesn't matter that there's a whole bunch of other things that are treated like churches. What matters is what is treated differently than churches. All you need is one. And in this case, if Hollywood is treated differently, that's a big deal. I also think that the point on manicurists, for instance, which they've made before, I mean, this case has gone up and down.

This is the same case, guys, that we've talked about. This is the South Bay United Pentecostal Church case. We have seen it before. We've talked about it before. We'll see it again. Yeah, we'll see it again. We're going to see it again.

You can get a manicure in California and have the manicurist, you know, with an hour up sort of, you know, for those who haven't gotten a manicure, the person is pretty close to you. They're not six feet away, that's for sure. And it takes, for like a gel manicure, that's like a 45 minute, 50 minute activity, even if you have like a great manicurist. But what I think is interesting and what they don't talk about, what jumps out to me, David, is that

clearly California is worried about commercial activity. They're worried about these businesses closing. They're worried about people making money. They're worried about people being unemployed. They're worried about people paying their taxes. If it implicates any of those things, it is just treated more favorably. They don't see churches as producing any tax revenue because they don't. And I think that what others are ascribing as hostility to religion, it's more like they don't care

about the religion, which is, of course, not what the law allows, by the way. I'm not saying that that's permissible under any strict scrutiny standard. But it's pretty clear to me

what they are doing. There's a reason manicurists are open and that Hollywood is open and that churches aren't. Yeah, they're trying to save the economy. Yeah. Yeah, they're trying to save the economy. And they're willing to take risks to do that.

And they don't see a purpose in taking risks to leave churches open. And the Constitution, of course, has the opposite thumb on the scale. Right. And see, that's the really, I think you just hit the nail on the head on the really key difference. And one of the reasons why people, there's such a wildly different reaction that people have to this court ruling, sort of depending on what is your view of religion and religious worship and religious practice going into the case.

Now, a lot of people, very few people are, when they hear about cases like this, they're not constitutional scholars. They're just sort of ordering priorities according to their own prior, how they prioritize things. So somebody who might prioritize economic aid doesn't really go to church, doesn't understand why somebody feels the need to go to church during the pandemic. Why can't you just stay home and watch it on TV? Or outside. Everyone in California is allowed to do any worship thing they want outside. Or outside, exactly. And so why on earth are you making a big deal out of this? And then there's sort of this, and of course we have to maintain some degree of commercial activity if we just have to. And yet the constitution of the United

States is pretty darn explicit in granting, there are rights that are granted in, you know, in the first amendment from free speech to free exercise, religion, freedom of the press. These are things where the constitution puts its thumb on the scales. Now, on the flip side, I thought there was a lot of celebrating sort of, you know, from religious liberty advocates that, hey, look, finally California is being sort of brought into line

with a lot of other jurisdictions around the country, but not really, Sarah. So this ban on singing and chanting is kind of a big deal. I've literally never been to a worship service in my life that did not contain singing. And so if you're going to continue to ban singing, what you're talking about is, at least from the standpoint of the way in which people experience a worship service, you're probably still going to be outside. You're still going to be outside if you want to have a conventional worship service. singing, which, by the way, just as a side note here, does any of this opinion,

does any aspect of this opinion hint to you at all that Smith is not long for this world? Not really. No. No. It just sort of treats the standard as the standard. There's no real

secondary discussion of maybe this shouldn't also be the standard. Right. Even in Gorsuch's long, you know, march to the end here, Gorsuch spends a lot more time talking about pandemic law needing to be revisited. No doubt California will argue on remand as it has before that its prohibitions are merely temporary because vaccinations are underway california no longer asks its movie studios malls or manicurists to wait and one could be forgiven for doubting its asserted timeline government actors have been moving the goalposts on pandemic related sacrifices for months

adopting new benchmarks that always seem to put restriction, that seem to put restoration of liberty just around the corner. As the crisis enters its second year, hovers over a second Lent, a second Passover, and a second Ramadan, it is too late for the state to defend extreme measures with claims of temporary exigency if it ever could. Drafting narrowly tailored regulations can be difficult, but if Hollywood may host a studio audience or film a singing competition, while not a single soul may enter California's churches, synagogues, and mosques,

something has gone seriously awry. The funny thing to me about that, David, Gorsuch has been saying this for months. Yeah. Gorsuch has been reading the French press, Sarah. There's no other conclusion that we can draw. This has been a French press, thedispatch.com, subscribe, sign up to receive the French press. fog of uncertainty about many, many aspects of the spread of COVID that that absolute judicial deference needs to recede. Gorsuch and I are singing from the... Well, no, no, we're not singing. Thank you. Thank you, Justice Amy Coney Barrett. We're not singing. We're not chanting.

We're reading aloud from the same songbook. But really, you have five votes on the singing. You just have to advance the record on this Hollywood exception. And I'm very unclear why that wasn't done before going back to the Supreme Court. Again, we're not one month into the pandemic. A year, what, we're now eight months since their initial application to the court, and you still haven't developed the Hollywood record? It seems very obvious to me that if Hollywood can, as Gorsuch says they might, host a studio audience or film a singing competition,

that that would be a big Smith problem. But, you know, Gorsuch is... They're basically saying the same thing. Gorsuch is saying, we think this is the case that Hollywood has this exception. And Coney Barrett's saying, we're not sure if it's the case. They're just reading the record that is confusing below a little bit differently.

Frankly, kind of unacceptable for either party not to have developed that more. Yeah, that was interesting to me. I'm sure if we had the attorneys on, they would give us a reason why that is the case. It may very well be the case that Hollywood, there's just not a lot of singing going on at Hollywood, and that bridge has not been crossed. But that's not true. We have television shows like The Masked Singer and Name That Tune that are airing live episodes on my television.

Where are they filming them, David? That's a good question. I don't know. I don't know. Dollars to donuts. Now listeners are going to say, well, are they being filmed in California? I bet they are.

I don't know. Yeah, now listeners are going to be all over us. You had minutes before this to Google where they're singing the Masked Singer, and you didn't do it. That's true. Inexcusable. Can I talk just briefly about Justice Kagan's dissent?

Yes. Okay. So here, what is interesting to me about Justice Kagan's dissent, I've sort of with a broad brush said this, they're more apt to apply, quote-unquote, pandemic law. But really, when you dig down into it, what they're doing is they're trying to, whereas Justice Gorsuch will say, here's my comparison. If a commercial establishment, as a matter of sort of fact, allows a lot of people to be in

close proximity for an extended period of time, that's like with like. And so if you are saying commercial establishment, you can have a lot of people in relatively close proximity for extended period of time, and you don't allow a church to have a lot of people with, you know, because of the 25% capacity restriction, you're going to be distanced a lot of people, but still indoors for an extended period of time. That's what like with like is. And what Justice Kagan says, no, we have to narrow it down, that narrow it down. So it's not just that California singles out churches. It also says the restricted activities include attending a worship service or political meeting or going to a lecture, movie, play, or concert.

So these are both secular. So what she's saying is that California meets this sort of like-with-like standard because there is a category of expressive activity that matches religious worship that is also banned, that is also subject to dramatic restrictions. And so, therefore, the Smith standard is set. So a lot of the argument here between the two sides is, what are we comparing worship services to? And Kagan would compare it to a much smaller universe of activity, and Gorsuch would compare it to essentially any activity in which functionally the same kind of exposures are occurring, if that makes sense. Well, you shamed me because here I was talking about The Masked Singer and realizing that,

of course, I could Google where The Masked Singer was filmed. Starting on August 20th, 2020, Masked Singer season four was filmed at the Red Studios in Hollywood. They did not have a live audience, but they do have all of their singers there. Now, if you're wondering why I can Google this and Justice Gorsuch can't, because that's not actually the way it works at court.

You have to have it in the record. The justices or clerks can't, you know, Google something stated as fact in republicworld.com and simply announce that it is. So I am surprised though, and perhaps it goes to the cloisterization of Supreme Court justices. I am surprised that none of them mentioned the fact that there are clearly singing shows on television right now, because that you don't need to have in the record. Something that you, a justice, can see for yourself, if that makes sense.

Right. Maybe they're not aware of the Masked Singer and what was the other one called? Name That Tune. I've never watched these shows, but I'm very aware that they exist. Why aren't they, one wonders? Yeah, it's fascinating. It's fascinating.

I was just going to say, in the end, this was a limited religious liberty victory, and not as nearly as large a victory as when I first saw the headlines about it, because I don't think people who read the headlines understood and people who don't necessarily attend church all that much understood the Kavanaugh-Barrett agreement that they were going to continue to impose, allow the state to impose the ban on singing, how as a practical matter, that does not permit a conventional worship service.

No, but at the same time, again, there were these three buckets, total ban on indoor worship, the percentage caps on indoor worship in non-tier one areas, and then the ban on singing and chanting. The total ban on indoor worship being gone is a win, no question. Yep. The percentage caps, I'm not sure they'll ever win on because the percentage caps do seem universally applicable. And frankly, I'm surprised that they keep including it in their lawsuit. I think they would be more persuasive

if they dropped that probably. And the singing and chanting, you're right, David. I think that there's sort of an eye of the beholder issue. If you are allowed to gather in worship, singing and chanting is fundamental to many religions. know that this is spread by spittle yeah that some types of religious worship that are more specifically dangerous um are different and look what they're going to say about the hollywood thing even if hollywood does have an exception is that no one is within 20 feet of someone singing on whatever singing show and if you have a choir they're all standing next to each other if you have people in pews they're all within 10 feet of each other. Or maybe for singing in particular, you need to be further than six feet away. And they didn't want to have a whole different category of restrictions teach

people how far away you have to be for singing. So that's all to say, even if the record is developed, I think there's a decent chance that singing might still fall into pandemic law. Yeah, that's why I say mostly dead. But here's the other thing, though, that is interesting to me. So again, we're a year into this. I have been attending church since June of 2020 indoors, social distance, masked. We have singing. Here's what we definitely know. We definitely know that if people are not masked close quarters in churches, it essentially can

be a COVID crockpot. You can just be marinating in COVID if you're in that kind of situation. But where are the scientific studies of spread or any identification of spread in a capacity-limited, social-distance, masked worship service? That would seem to be something that we would have access to by this point. You also have to put this all against the political backdrop. The recall effort against California Governor Newsom has picked up major steam. And as the Politico headline said, the campaign to oust Newsom went from unlikely to unavoidable this week.

So it'll be interesting to see whether Newsom does anything to try to stem some of this freefall in his approval numbers around church services. And remember, you think California and you think San Francisco and Hollywood. Remember, the whole eastern half of the state is bright red. Right. Now, here's my question, Sarah, as you're putting on your political expertise hat. Does this recall effort gain any steam at all, but if he didn't do the French laundry dinner? gain any steam at all but if he didn't do the french laundry dinner interesting i mean it's definitely what galvanized i think people who otherwise maybe didn't care but you know the

real issue so the real issue is the economic toll in the state and the fact that recalls are fairly easy there compared to other places but the you know so the tinder is all around it's very dry and crackly but the match was the french laundry the spark yes flew across the sky yeah and there's just something like if he'd even broken sort of social distancing protocols at a wendy's because he'd listened to your assessment here on Advisory Opinions of the chicken sandwich and said, I'm going to try that. And he'd gone there with a few staff. It wouldn't be as big a deal. Just a man of the people needs some Wendy's. But the French Laundry, it was sort of almost the, if you were going to just write a caricature of the rules don't apply to me elitist, that would fit.

So you need 1.5 million valid signatures to get the recall effort on the ballot for a special election. The deadline for that is March 17th. Now, to get 1.5 million valid signatures, David, that means you need a lot more than 1.5 million signatures. But good news for them, right now they're hovering at about an 85% valid signature rate. They claim that they already have 1.3 million. So they've got a ways to go, but they've got some time to do it. It's looking pretty possible. And generally, not always, generally these things pick up steam toward the end. When you can say like, we're running out of time, if you want to

recall, do some. Right, got a deadline. So I think that if you're at 1.3 right now total with an 85% valid signature rate, I don't think they're going to have a problem getting to 1.5 million valid signatures by March 17th. And if that does work, again, this is the once and future Supreme Court case. It keeps coming up to the court. I guess from a legal standpoint, I would like an actual resolution on this. I would like the record to be fully developed. I would like the justices to have to tell us what the law is. And in fairness, that was a lot of Kagan's dissent. She's like, this tells us nothing. We gave no real guidance. Who knows what any of this means now? And now her other point is that, as she says, these are judges second guessing

scientists as they sit in their totally isolated chambers and don't have to deal with any of this. But I take her first point in the second to last paragraph, but the scope of the original order raises questions. When are such capacity limits permissible and when are they not? And is an indoor ban never allowed or just not in this case? Most important, do the answers to those questions or similar ones turn on record evidence about epidemiology or on naked judicial instinct. The court's decision leaves state policymakers adrift in California and elsewhere. I agree with that. I think that's 100% correct. The fact that you and I can't figure out why bucket two doesn't have five votes

because you have at the top here, it says Justice Thomas and Gorsuch would grant the application in full. Okay, so that's clearly two votes in bucket two. Then it says Alito would grant the application with a 30-day injunction. Okay, so that's three votes, but now with a 30-day injunction. And then you have at the beginning of Barrett and Kavanaugh's opinion, I agree with Justice Gorsuch's statement, save its contention that the court should enjoin California's prohibition on singing and chanting. Well, that's bucket three. So you agree with bucket two? That should have put us to five votes. So why wasn't anything granted as to bucket number

two? No idea. It also gets more confusing because again, I said at the top, it says justice Thomas and justice Gorsuch would grant the application in full. But when you scoot down to justice Gorsuch is writing statement of justice Gorsuch with whom justice Thomas and Alito join no justice Alito opinion separate from the paragraph up top that talks about the injunction. So he does join it in full? I mean, that one makes a little more sense. He does join it in full, but he would put a 30-day stay on it, basically. Fine. That does not tell us what happened to bucket two, the percentage caps, which you and I, of course, think are the ones that are kind of fine. Yeah. Yeah, exactly. Exactly. Well, you know, all we know is the application was denied.

The injunction was denied, but we don't have, we don't know exactly how. And then you have, of course, Justice Roberts, you know, hanging out there, Robertsing, where he just has his statement where he basically says, yeah, same as it ever was. Please read my previous opinion. So he's the only one who votes for exactly what the relief granted is. Right.

Which, you know, we talked about how Justice Roberts got to be the swing vote for a term. Oddly, he appears to be the swing vote here. He's the only one who votes for the relief granted. And we have no idea why that is, because he should be the sixth vote. I don't know. Imagine yourself in Ottawa, surrounded by thousands of vibrant tulips. Oh.

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All right. Time for some defamation lawsuits. Yeah. So we're not going to spend a huge amount of time on this, but there was a lawsuit that was filed by the Smartmatic International, plaintiff USA Corp. Smartmatic International, holding B, and SGO Corporation Limited, Smartmatic, filed lawsuits against the familiar defendants in the Dominion lawsuits, Rudy Giuliani and Sidney Powell, but they swung for the fences. They're suing Fox Corporation, Fox News Network, Lou Dobbs, Maria Bartiromo, and Jeanine Pirro, Judge Jeanine.

And their lawsuit is seeking more than $2 billion in damages. Now, I'm going to highlight this just for some limited reasons. One, because we've talked some about defamation, I've written about defamation in my newsletter. And the Dominion has what I would say is a very solid defamation case. But if Dominion has a solid defamation case, then Smartmatic has an even better case. And there's two things I want to highlight here. even better case. And there's two things I want to highlight here. One, the way the plaintiffs begin this case or this lawsuit. And number two, sort of exactly how dramatic the facts are. Okay. So Sarah, the complaint begins like this. The earth is round. Two plus two equals four. Joe Biden and Kamala Harris won the 2020 election for

president and vice president of the United States. The election was not stolen, rigged, or fixed. These are facts. They are demonstrable and irrefutable. Two, defendants have always known these facts. They knew Joe Biden and Kamala Harris won the 2020 election. They knew the election was not stolen. They knew the election was not rigged or fixed. They knew these truths just as they knew the earth is round and two plus two equals four. That's a pretty memorable way. You can tell that that's not written for a court. That is written for the media. That's where your complaint is trying to tell your story in the court of public opinion.

And I thought that was a pretty effective and memorable opening. Now, why do I say that the facts here are really even more favorable for Smartmatic than Dominion? So Dominion was, as folks know, was subject to wild conspiracy theories. But Dominion, unlike Smartmatic, was actually used,

Dominion systems were used in a lot of jurisdictions in the US. Doesn't mean that any of the claims against them are true, but what's wild about the claims about Smartmatic is Smartmatic became part of this when its technology and software were used in only one county in the whole United States of America, and that's Los Angeles County. And nobody disputes that Harris and Biden won in Los Angeles County. Harris and Biden won in Los Angeles County. But what were some of the stories about Smartmatic?

One, that Smartmatic was widely used in the 2020 elections, including in six states with close outcomes. That Smartmatic tech and software was used by Dominion. That Smartmatic tech and software was used to steal the election. That Smartmatic tech and software sent votes to foreign countries for tabulation, that Smartmatic tech and software were compromised and hacked, that Smartmatic was previously banned from being used in U.S. elections, Smartmatic is a Venezuelan company founded and funded by corrupt dictators, and that Smartmatic was used to rig and fix the election. When you actually compare the true extent of what Smartmatic did

with the allegations against Smartmatic, it's a staggering disparity. It's just a staggering disparity. And the interesting thing about this case is that in the complaint, regardless of whether Smartmatic is sort of viewed as a public figure for purposes of defamation law, they're swinging for the fences saying this was a knowing, intentional lie. That's the front and center allegation here, that it was knowing and intentional, and they're seeking more than $2 billion of damages. And to give you some context for that amount of money, if they were to get it, which few plaintiffs get everything they're asked for, but if they were to get it, it would swallow the lion's share

of Fox News' profits in any given year. So it's a really fascinating case to keep your eyes on. And it's one that shows how different the actual facts were compared to these allegations that just filled media, including Fox, in that election contest period. So I don't know. I just wanted to highlight it as an important filing, something to keep our eyes on. I don't know if you have additional thoughts, Sarah. So legally, the part of this case which I will find the most interesting is definitely the public figure distinction. So in defamation, there's a totally different

standard for just a private guy walking his dog on the sidewalk and a public figure. The public figure test for you or I, David, is public figures must enjoy greater access to channels of communication, making them less vulnerable to injury. You and I would fit that. We are on a podcast. Second, public figures must voluntarily assume the risk of greater public scrutiny, including risk from defamation, and therefore are less deserving of recovery. So for instance, it can't be that now you have access

to these channels of communication because you were defamed, if that makes sense. So you have to voluntarily assume that risk. The defamation can't make you the public figure. That's right. And the subject matter for which the plaintiff has availed himself of public attention must be the same subject matter of the defamatory statements. So yeah, you can't just find someone who has a very specific, limited fame and then go after them for something totally unrelated. Now, how that applies to corporations has always been a bit confusing. If you remember, Mitt Romney got into some trouble back in 2012 when he said, corporations are people too, my friend. But it's actually true. Corporations are treated as persons for a lot of different purposes.

One of those is First Amendment purposes, which is actually what Romney, in the context of the conversation, nobody realized that he was actually talking about. Now, when corporations are public figures is still not totally settled law. A lot of it will turn around advertising as in if, you know, let's use Wendy's. If you're Wendy's, you have a lot of advertisements on television talking about how awesome your food is. And then I go out and say, I don't know, your chicken is poison and it kills people or something outrageous. Wendy's is certainly going to be a public figure for that purpose. You have to prove actual malice that I knew what I was saying was false. This is why Smartmatic is so interesting because it's very rare for someone to publicly defame a company

that isn't already famous, doesn't do advertising. Why would you defame a random company no one's heard of? But here we are. So it's a really unusual case. I think it will make some interesting law on this corporate public figure thing. Because as far as I know, David, Smartmatic doesn't advertise publicly, maybe in some trade publications, but even then I kind of doubt it given what they do. My guess is you more or less have to seek them out. And two, will that even remotely rise to the level of the public interest area in which they have been attacked,

given that they weren't involved in any of this. So politically speaking, obviously there's a lot of interesting stuff. Lou Dobbs has been fired from Fox, and it came right on the heels of this lawsuit. Hard not to read some causation into that. But legally speaking, all about when a corporation is a public

figure, that will be the first question that gets answered in the court, really, because that determines the standard that applies to the rest of this. And like, that's going to be fun, David. We're going to follow it. It's going to be fascinating. And they've been very clever in their pleading. I mean, so in paragraph nine, early on, they say defendant's story was a lie, all of it, and they knew it. Okay, so if that allegation is true, a lie, all of it was a lie, and they knew it was a lie, that would satisfy the defamation standard for a public figure. Intentional knowing lying satisfies that figure. But at the same time, later on in paragraph nine,

it says overnight, Smartmatic went from an under-their-radar election technology and software company to the villain in the disinformation campaign. So they're trying to establish right there, wait a minute, we weren't even, who were we

until they made us the boogeyman in this lie? It's going to be a fascinating case legally and for its consequences. One could easily imagine a settlement that ultimately, if this case is allowed to go forward, you can easily see a motion to dismiss being filed relatively quickly to try to get to some of these core legal issues. Numbers like you saw with the $177 million settlement paid to Beef Products, Inc. to settle the pink slime lawsuit. If you remember the pink slime reports in ABC about this kind of pseudo beef product, allegedly. And the Beef Products, Inc. sued ABC and said, wait a minute, you've totally misled viewers about our product. You're misleading.

You caused a damage to our product, which caused hundreds of layoffs. And Walt Disney Company said they paid $177 million to settle that pink slime lawsuit. I wonder if we saw a settlement here in this case. It might go north of that. There's no way they settle.

We'll have to wait and see. Sorry. You think there's no way they settle? Not that Smartmatic wouldn't settle. I'm sure they'd be happy to. But if you're Giuliani or Powell, frankly, they're judgment-proof against the lawsuit to begin with.

So you might as well go to the end, have some fun, get the attention. Fine, they find against you. You don't have the money anyway, and some fun, get the attention. Fine. They find against you. You don't have the money anyway, and you're old. All right. What's next? What's next, Sarah? Donald Trump is mounting a First Amendment defense to impeachment. And so I just thought we might want to talk about that a little bit, because if I had to say what is the question, there are two questions that I'm asked more than any other. One is, what about the constitutionality of

trying someone after they're out of office? That's one, and we've talked about that a lot. And the other one is, but what if his speech was constitutionally protected? Isn't this a violation of his constitutional rights? Because it is state action taken against him on the basis of his speech in the National Mall, okay? Really a pretty simple statement here, I would say, in response with a little bit more of a complicated answer. One is there's not going to be the bottom line is there's not an actual First Amendment bar to impeachment and conviction for presidential statements. There's just not that this is a constitutional remedy that is a fundamentally political remedy applied by the political one political branch of government against the other. And so that the, this is not viewed in the same way as say a speech code at a college campus or a decision to break up a demonstration by overly aggressive police. This is not that. This is a political check on a political branch of the government. But also, as a matter of fact, the reality is that there's two other additional realities. One is the impeachment is not just based on the speech that happened immediately before the Capitol attack. It's also based on a course of conduct surrounding the election contest.

So there's that includes speech speech as many conspiracies, alleged conspiracies do include speech. So this to call it to say that it's entirely based on the speech right before the Capitol attack is a mischaracterization of what the impeachment is about overall. And one other thing that I would say that's going to be interesting, even from the pure analysis of the speech, did he incite or did he not incite? One thing that was interesting to me, is Liz Cheney seemed to indicate that, well, Liz Cheney on Sunday morning shows and on Fox indicated that there might have been an intent to cause violence when Trump, in the middle of the riot, tweeted against Mike Pence. I haven't seen evidence to back that up, but if there is evidence

that exists that that was part of the intent of the communication, then you could be looking at, it could start to move some of that speech beyond sort of what someone would call first amendment political protected political speech into actual incitement. But we don't have that evidence. Anyway, your thoughts, testimony.

Yeah. Testimony. Believe it when I see it. But I mean, that's all about whether the president whether the former president who now is amenable to the judicial process uh will be arrested for incitement no right or charged in connection with an interference to uh in charged in connection with a conspiracy or other under either state or

federal law. Arrested for his actions on January 6th. It's not going to happen. Doubt it. Doubt it. You know, any, any additional thoughts on the first amendment and the president's speech? It's silliness because that's not what an impeachment is about. So I don't even understand. You and I talked about this before. Their goals here are very different. They already have the acquittal. Now they're just trying to rehabilitate their guy's reputation, trying to set him up for a 2024 run. The First Amendment thing sounds good because people watching on television know what the First Amendment is.

It is no bearing whatsoever on what's happening this week. But, you know, I'll be screaming into the wind by myself on that. No, I'll scream as well. Oh, we can scream together into the void. Into the void. Okay. Well, Sarah, we've been invited to a wedding yeah so um what i love about advisory opinions are that our listeners are willing to travel to some of the

nerdiest places that we want to go and And like, they don't just, you know, they come enthusiastically. And so, um, we are incredibly touched that in fact, two of our listeners who, uh, discussed that our podcast has been a real, uh, point of community for them as a couple during this pandemic. They have decided to get married. They have invited us to their wedding. And the way that we know that they fit into our AO community so well of nerdery is that at the top of their invitation is not the date for their wedding in the Gregorian calendar, but rather the star date for their wedding in the Star Trek calendar. Yes. And so two things about that.

One, that's pretty glorious. Like that's the greatest. And number two, I'm deeply embarrassed, Sarah. Do you want to know why? I can only imagine. I'm deeply embarrassed that I'm not enough of a nerd to be able to translate the stardate calendar into our calendar immediately.

So listeners, the stardate, I don't think I'm going to give away, we're not going to crash their wedding here, everyone. We agree. A few people might show up, Sarah. The star date was 11170.6. We will not tell you the regular date. So that's awesome. And we are just so tickled by that. And also, like, how many birth announcements that we get from you guys

and so many new briskets and other barbecue meats popping up around the country with the littlest AO listeners just brings us so much joy. So thank you for traveling with us on this nerdery. And, I mean, look, David, this is the premiere, the flagship dispatch podcast, because I will tell you for certain that Jonah and Steve have not gotten stardate invites to any weddings from their listeners.

No, no, they have not. Yeah, this is absolutely the flag. I think that decides it. I mean, there's some sort of lingering resistance, nearly routed, bitter clinger holdouts within the dispatch community who contest that this is the flagship, but I think that ends it. There's just a need for a peace treaty at this point. They need to show up on the deck of the USS Missouri

and just go ahead and surrender to us that this is the flagship. Speaking of nerdery though, it was just like the most fun talking about fonts for our last episode. Yes. And thank you for all the book recommendations. I did read typ uh, topography, topography, uh, typography for

lawyers this weekend. And it was delightful and reminds me of some of my very favorite grammar books. So highly recommend that book as well by Matthew Broderick. How do you pronounce his last name? Probably not Broderick. That's the guy that that's the actor who I think is awesome. Okay, Matthew Buderick, not Broderick. Right. So lo and behold, The Advocate, David, as I'm sure you've read cover to cover every single one, it is the newsletter of the State Bar of Texas. Oh, yes, of course. The last advocate had an article entitled, A Court of Equity, colon,

There's a New Serif in Town. David, I want you to guess who the author of this is. I'm just going to, just out of the top of my head, Judge Willett. Of course, it is Fifth Circuit Judge Don Willett. So he is announcing what we discussed last week, that the Fifth Circuit has moved to equity font, and he's explaining it, and it is so delightful. So he starts in discussing when Air Force One changed the font on the side of the plane that says united states of america sort of that iconic font we all think of and it was in fact president kennedy and he selected the font castlon because it resembled the one used in the first printed

version of the declaration of independence for what it's worth i don't know if i agree with president kennedy that it looks anything like the Declaration of Independence, but I appreciate the effort and I think the font looks lovely on the side of the plane. Then he talks about how from when he was a Fifth Circuit clerk in 1992, the court used courier font, which is atrocious. Oh, it's horrible. It's horrible. In 2007, the court switched from Courier to Century Schoolbook. I was at the leading edge, the bleeding edge of clerks using Century Schoolbook. And you know what? I enjoyed Century Schoolbook quite a bit, actually. Now, after I left, the court switched from WordPerfect to Microsoft Word. I am a WordPerfect girl myself, David. I loved the fact that I got to clerk on a court that used WordPerfect.

It brought me endless joy. But in October 2019, Chief Judge Priscilla Owen appointed a five-member committee on typography and style and appointed the style queen of the Fifth Circuit. How could you appoint anyone else but Jennifer Elrod to oversee such a committee? The combination, by the way, of nerdery and style that is Judge Elrod is outdone by no one in the country, David. Not you, not me, not advisory opinions. It is Judge Jennifer L. Rod. So that is why it now all makes perfect sense to me that they end up with

equity, this beautiful font created for the purpose of legal briefs, because it is all of the nerdery of Judge L. Rod and the attention to detail combined with the panache of a great font. If you do choose to read this, it's quite short, but it goes through what all of the other circuits are doing, including the eight that are using Times New Roman, which Justice Willett, Judge Willett, sorry, he's a former justice of the Texas Supreme Court. Judge Willett, quoting Matthew Buderick, calls the font of least resistance, the absence of a font choice, like the blackness of deep sea is not a color. What a perfect description of Times New Roman. So true. But the most wonderful thing that he has is the side-by-side with what I was doing

as a clerk with my Century School book and the new one. So they have not just changed the equity font. They have also moved from V period to verses in italics

for the caption. They have moved from all caps to small caps in the parties. They have moved from all caps to small caps in the parties. They have added the lower district court case number into the caption as well. And more italics, so like it would now say before, in regular font,

Stuart in all caps, comma, chief judge in italics, comma, and Hay Stuart in all caps, comma, chief judge in italics, comma, and Haynes, all caps, and Willett, all caps, comma, circuit judges in italics. Before that would just be regular font and caps for the judges' names. I recommend going to look at it.

It looks, on first glance, you're like, subtle difference, but then you stare at it and It looks on first glance, you're like subtle difference, but then you stare at it and you're like, oh, wow. It's gorgeous. Just beautiful. And it, it, it opens up to you like a sunset that you're watching. Just, oh, lovely. Um, judge Willett is a delight. His love of puns is really something. But he's very good at it. So there's lots of little Easter eggs in here to find.

Highly recommend. It was great. And I suspect he might be hearing this analysis of your work. Have I told you how smart and talented Judge Willett is? Yeah, we're the Advisory Opinions Podcast. We're official fans of Judge Willett. Hi, Judge. Now, I have two questions for you, Sarah. Number one, how many people would you kill to have been on that five-member

typography committee? And two, what did you think of the Super Bowl halftime show? You know what? Honestly, though, if I had known that Judge Elrod would be the chair of the committee, there was no need for me to be on it. I would have enjoyed her knowledge dropping, but I wouldn't have needed a vote or anything. The halftime show. So Scott and I are big fans of The Weeknd, huge fans of The Weeknd. In fact, I have not been to a concert in years and years now, but we, as a special treat, had bought really nice tickets to the weekend's summer 2020 tour, which obviously didn't happen. But it was going to be our first post-baby big date, so we planned it way in advance. And of course, thank you, pandemic.

So I was really looking forward to the halftime show. Here are the problems. One, the weekend doesn't dance. And there is something about the halftime show that like you want some dancing. I think they did a pretty good job making up for that with everyone else. Second problem,

I liked the last part that took up the whole field with the dancers. And that sort of necessitated being dark. But because that was going to be dark they needed to have other parts that were light just to like vary it up otherwise it was like the whole thing was done um it reminded me of like when i put the baby to sleep and i have to turn all the lights out in the room and my eyes start adjusting but now everything is just dark and gray because you can't really see colors in the dark that well. Third problem, obviously the sound didn't go right.

I don't know what the problem was there. I read that The Weeknd chose to put $7 million of his own money into making the halftime show really extravagant. And one wonders, sometimes when someone sort of takes over in that way and that can result in other people feeling like they're being pushed out and that their opinions are no longer valued. And therefore, when they see you making a mistake,

they're less eager to help you and point it out. But the sound quality was inexcusable. You couldn't understand any of the lyrics. You couldn't even really hear him singing for large parts of it. And again, his music is good. So there was no reason to do that. He was singing for real. So that's all to say, it was a bad Super Bowl that was not saved by a disappointing halftime show. What did you think? disappointing halftime show. What did you think? So I felt like I'd stepped into a time machine and had gone back about 15, 20 years in Super Bowl halftime shows because it was not that

extravagant. It was not that big. We've been through, what was it lady gaga started off like perched on top of like the highest spire in the stadium and like we've seen just the most elaborate stuff and this one kind of had like a robotic choir and then when they spilled out onto the field there's just a bunch of people dancing around on the field it felt like sort of um you're too young to remember super bowl 1976 sarah and i'm too young to really Super Bowl 1976, Sarah. I am. And I'm too young to really remember it, but I've seen the YouTubes. And that was the Up With People halftime show. And it's just, you know, there's people on the field just dancing around. And I felt like it was kind of like 2021 Up With People when they were all dancing around. And, and my one thought was dead social dense distancing and problems,

you know, caused by the pandemic prevent the kind of elaborate set that we're used to, but it just sort of seemed like we're kind of watching him sing against backdrops that aren't all that interesting and the sound was off and yeah but also we're in the middle of a pandemic people have been stuck at home for a year we needed something bright and positive yeah and it felt like a batman villain singing his big number in batman the musical yeah it kind of it kind of did i thought that that's a great analogy thank you and you're going to the dc universe like very close to my heart so okay but the most important

thing is the jeep ad the bruce springsteen gs because i you know scott and i just like watched it and scott was like that was a great ad was like, yeah. And then of course the whole ad is about unity and people meeting in the middle and forgetting their differences and just enjoying the freedom of the United States of America by buying a Jeep. Um, and the left and right freaked out. And Scott was like, I don't understand. I mean, I understand because that's the world we live in right now, but what are they complaining about? And basically it was the same complaint. The left felt that, um, no, this isn't just bygones be bygones. People must be held accountable. And how dare Bruce Springsteen, uh, use this metaphor about white America in Kansas. By the way, if you've been to Kansas,

I found that kind of offensive actually, but whatever. Um, that, uh, he was saying that we just needed to forget everything that's happened and they want, you know, they want accountability. They want people punished. And until the right has been correctly punished, then they don't want unity. And the right was saying, these people want to destroy us. Why would Bruce Springsteen, this left-wing socialist, ever lecture

us on needing to come to the middle with these Jacobins? We don't want unity with them. We want them to submit to our correctness. And I was like, yep, that feels about right. That's about how that would go. Bruce Springsteen, one of the most talented musicians in American history, makes a pretty banal statement about unity in the American way, something that would have been pretty boring

and uncontroversial, frankly, if that had aired in the 1976 or 1995 or even 2005 Super Bowl. And nope, in 2021, everyone mans their battle stations to attack Bruce Springsteen, unity, half the country that they don't live in, with the most stereotypical eye-rolly worst takes. Well, so I'm watching it unfold, and I had two parts of my brain going at

once. The human part of my brain and the Twitter part of my brain. And the human part of my brain was saying, this is touching. Like, touching. Here it is. This is, look, iconic American musician, iconic American brand, iconic American location. In many ways, it was super culturally conservative too because it's a pilgrimage to a chapel and there is, you know, Springsteen praying in the chapel for our nation. And it just, it didn't just feel sort of, it felt, you know, if you're not poisoned by partisanship, it felt like something that,

you know, would totally fit in a 1984 Ronald Reagan morning in America kind of style. I mean, that's what it was, basically. But I can't turn off, and I need to, Sarah. This is just a problem I have. I always know, oh boy. The other part of my brain is like, oh boy, I know exactly how this is going to play. Now, was your oh boy for the right or the left or both? Mainly for the right.

Mainly for the right. I did not anticipate the left reaction to it as much. Interesting, because I think the left reacted more to it than the right. Because I saw some folks on the right, because I'm sitting there watching, and I thought, okay, I know the takes. The takes are, you're only going to use this message to unite because Joe Biden won. That's one take. And then the takes are, well, why do I want to hear from a leftist like Bruce Springsteen to unite? That's take number two. And then here's take number three that I saw, and maybe because we follow different people, was, wait a minute, in the chapel,

there was a cross and an American flag. So why aren't we talking about Christian nationalism now, guys? So I guess some forms of Christian nationalism are good when it's from Bruce Springsteen, but not when it's from, I don't know, QAnon. Those are similar. Okay. QAnon. Those are similar. Okay. So that's what I saw. And I agree with you completely. Look, I know that Jeep,

they're just trying to sell a Jeep, but I thought it was touching, but it was not the most touching ad. And this is one where I did not see Twitter freak out about it. Okay. The most touching ad was the Toyota ad featuring the swimmer who was swimming

and her legs appeared to be amputated at the knees and she was swimming strongly and powerfully and they were rewinding her life and that she had been adopted and the call to the adoptive mom to tell her that the baby is got, her baby has these terrible health problems and might lose her legs. And the adoptive mom says, you know, all I know is, you know, our life is going to be an adventure and amazing. And like this just statement of

unconditional love. And then it goes to Toyota. But all the way up into that moment, I've got tears in my eyes. This is amazing. What is this advertising? I have no idea what this is advertising, but all the feels are just flooding down upon me. And then it goes to Toyota. But I still loved it. I still loved it. Showing a difference in our personalities. My favorite ad was almost certainly the Ashton Kutcher Mila Kunis. She's eating Cheetos in the house and leaving orange fingerprints everywhere. And he's like, did you do this? And Shaggy is there and she looks at Shaggy and he's like, wasn't me. And so she does wasn't me throughout the house, basically with the Shaggy lyrics for wasn't me. And then Shaggy gives some good advice in his rap. That's like,

uh, bro, this is your wife, you know, don't push it. And so then she, she does this and she's like, it wasn't me. And he goes, okay. And then Shaggy goes, that's the first time in history that has ever worked. Yeah. Well, and then my other favorite line from a commercial was Drake from State Farm. Yeah, yeah. I don't know why. That just hit the funny bone.

10 minutes earlier, I was like, where has Drake been lately? And Scott was like, I don't know. And then it was like, Drake from State Farm. We were like, whoa! Sarah has her finger on the pulse of advertisers. I have to admit, I've never said these words. I don't know if I've ever said these words.

I was slightly, slightly disappointed by Will Ferrell's sketch. I thought it was pretty good. But solid is mediocre to solid, which is normally not the Will Ferrell range, which is very good to hysterically funny, typically. I thought that they walked a fine line between it becoming political

and that what they did well was not letting it become political, keeping it at the joke of, you know, suck it, Norway. Right. And then that none of them know where Norway is. So like making fun of themselves, like that worked. And I thought they probably went through a lot of different iterations to get that to work.

Yeah, no, it was, as I said, it was mediocre to solid. Maybe you're convincing me it was more on the solid side. I'm going to rewatch. I have to rewatch. All right. Anything else forgot the best line from There's a New Seraph in Town. And that is, It's a type thing you wouldn't ampersand. Oh my goodness, Judge Willett. All right, now we can end. Now we can end. Okay, on that note, we will close.

This has been Advisory Opinions with David French and Sarah Isger. Please go rate us on Apple Podcasts and please check us out at thedispatch.com where Sarah writes her outstanding newsletter, The Sweep. I write a newsletter called French Press and we have a host of other offerings. So please go to thedispatch.com. You can sign up for free and you'll get part of it. But if you subscribe, you'll get all of it and all of it is better than part of it.

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