Advisory Opinions - Lower Your Expectations

Episode Date: June 6, 2023

SCOTUS refuses to serve up the good stuff with the latest round of opinions released. Sarah and David discuss the chipping away of labor rights and subjective beliefs over violating the False Claims Act. Also on the docket: -Aliens upon us? -Whistleblowers in Sarah’s DMs -Are Diversity Statements illegal? -Angry cheerleader’s legacy -Hunter Biden’s messy 2nd amendment issue -Joe’s Hail Mary campaign throw, according to The Messenger Show Notes: -Virginia Tech speech police questioned by skeptical Fourth Circuit -Angry Cheerleader case -Advisory Opinions, Angry Cheerleader Gets A Supreme Court Win Learn more about your ad choices. Visit megaphone.fm/adchoices

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Certain conditions apply. Details at phys.ca. You ready? I was born ready. Welcome to Advisory Opinions. I'm Sarah Isgerd. That's David French. And David, I just sent you a very important link. I'll just, I'll read the headline to everyone. Intelligence officials say U.S. has retrieved craft of non-human origin. I want to get your immediate reaction. You haven't even read the piece. Yes, that's my immediate reaction.

I don't know what the debrief is. The debrief.org have no clue if it's like an Alex Jones publication, but I believe this story. I mean, normally this wouldn't come up on a legal podcast, but if this is true, then really nothing else we're going to talk about today matters, right? So like it seemed like we should mention it to everyone. Yeah.

Again, cannot vouch for the debrief. Have no clue. I haven't even read the article. Doesn't matter. But it's all true. Yes. All right. But we do have a lot of legal things to talk about today. We got some Supreme Court opinions. I want to lower expectations on that front. Although for our corporate lawyer friends who listen to this podcast, they were super pumped about that FCA case. So we're going to talk a little bit

about those. But then after we get through our Supreme Court vegetables today, and dear Supreme Court, you're holding back. I know there's a filet mignon back there. There's some delicious desserts. We'll see when those are coming out. We are still, by the way, on one hand down day a week. So I want to explain a little bit about what's going to happen for the rest of the month here. So we expect all of the Supreme Court opinions to come out by the end of this month. For those keeping score at home, June is already like we're six, five days into June. So we're running out of the month. We're going to get through the rest of these almost certainly. And some things are going to happen. One, at some point, we expect the Supreme Court to start doing two opinion hand down days a week.

They'll normally add that to the calendar with a few days notice. That has not started yet. So we are only expecting one hand down day for this week on Thursday. Another thing, I mean, it could even move to three hand down days at the very end, for instance, things like that. There's also Supreme Court bingo, which I have explained before on this podcast, which is where because most justices author one opinion per argument sitting, at some point, you are then able to look and make some educated guesses about who might be authoring some of those remaining opinions. So for instance, let's just start with the hip parade. Harvard and North Carolina were argued in November, but there's a little bit of problem with argument bingo because there's a lot of outstanding opinions left. Only, let's see, three have actually

come out. So for instance, justices who could be writing Harvard and North Carolina, Roberts, Thomas, Alito, Kavanaugh, Barrett, Jackson. So it doesn't help you a whole lot at that point. But when you look at December, for instance, it does get a little more interesting. 303 Creative is outstanding in December. So is a Texas immigration case. And so is Moore v. Harper that we've sort of been waiting on, like, so what is happening there? And when you look at December, all right, we've got Roberts, Kagan, Gorsuch,

Kavanaugh, who haven't written yet. We're still not really to playing a good game of bingo, I'd say, David, what do you think? Yeah, we're way away. All right, but bingo's coming. Yes, but I also wonder if we're going to have such a big clump of hand downs at once that it's almost going to make it not interesting

because we're just going to get big opinion dumps. That's a really good point. We are expecting a lot of big opinion dumps at some point here because, again, we're expecting one hand down for this week. So even if they move to two hand downs starting next week, that's one, two, three, four, five, six, seven, maybe eight hand down days left

with a whole lot of opinions outstanding. So the pace is about to pick up here quickly. Let's talk about our two Supreme Court cases and then we've got a whole lot of First Amendment fun coming up after that. And other things. I mean, just a lot of con law excitement. All right. So David, look, these two cases, we had talked about them for oral argument that I wanted to talk about today. One is that union case. So if you remember this from a previous episode, these truck drivers who drive concrete mixers, which if you are the mother of a toddler like I am, you spend a lot of time talking and thinking

about concrete mixers in your house. Well, so were these guys. And they went on strike after the trucks had been loaded with concrete. And the question is Glacier, the company, And they went on strike after the trucks had been loaded with concrete. And the question is, Glacier, the company, could they sue the union for tortious destruction of property, the spoiled concrete? Because it was a scramble, it looks like,

at the point that the truck drivers allowed the concrete to be loaded into their trucks. Then they drove off property, then decided to strike. Many of the truck drivers drove their trucks back. They had to keep spinning them. They had to get rid of the concrete out of the trucks because at that point, the concrete's definitely ruined, but the trucks could get ruined. And where are you going to put a whole bunch of concrete? You can't just dump that in a river, it turns out. So it caused a whole lot of problems for Glacier, although it could have been worse, right? Because none of the trucks actually were destroyed. And you get into some interesting legal law stuff here

because there's something called Garmin preemption. We don't need to spend a ton of time on this, but the point is that under the National Labor Relations Act, there's a question about when you can even sue a union if it involves a strike under Garmin preemption. If the strike was even, quote, arguably protected by the National Labor Relations Act, then you cannot sue in state court. Not really federal court either. Now, this was an 8-1 opinion.

Eight of the justices were like, yeah, this isn't even arguably protected. Big no on this strike. So yes, your tortious destruction lawsuit can proceed under state law in state court. One dissent, Justice Jackson. And some interesting concurrences, not so much because, again, unless you're really into concrete law,

maybe, but following sort of our 3-3-3 court, you had, for instance, Justice Thomas and Gorsuch saying, look, this Garmin preemption thing is really dumb. What does it even mean to be arguably protected?

Isn't that just everything? And you end up in this weird situation where a state case could proceed for quite a while, and then you could find out that the strike was arguably protected, and then they lose jurisdiction. Garment is a stupid precedent, and we should get rid of it.

But that was only two justices. Samuel Alito, along with Thomas and Gorsuch, also had another concurrent. So very 3-3-3 here. Except for that, Justice Jackson stands alone in her dissent. So Sotomayor and Kagan joining in the 8-1 majority. Jackson saying, no way, y'all. This is the NRLB's thing, the National Labor Relations Board.

They're still proceeding. This needs to be put on hold until they decide whether they arguably have jurisdiction over this, which they kind of already said that they did. David, I will say that the one thing that I found difficult about this was the Garmin preemption problem. Because if something's arguably protected, does that mean there's even a, just a reasonable good faith argument? Because in this case, I think that there was. The concrete is like other perishable goods.

We've seen other strikes with eggs or poultry, et cetera. Now, I totally understand Justice Barrett wrote the 8-1 majority opinion and said, easily distinguishable, because here, the concrete drivers are what caused the good to become perishable by allowing them to load the concrete onto the concrete mixers. I totally get that. As a matter of, you know, when you get to the merits of this, yep, that is a different type of perishable good than an egg or poultry, where you would never be able to strike if you worked with perishable goods, unlike here where they made the good perishable and then went on strike. But that doesn't mean that it wasn't arguably protected.

So things in this case that have been made a big deal. One, you have the three justices, Alito, Thomas, Gorsuch, throwing shade on this whole concept, definitely on Garmin preemption. Two, is this the continuation of chipping away at labor rights in this country as unions already become

less central to American life, both politically and economically in a lot of ways? A lot of those jobs have shifted pretty dramatically.

Three, Justice Jackson breaking from Sotomayor and Kagan again. What do you think? A few things. Let's go with number one that is something that you haven't mentioned yet, but I've got to be under my bonnet about, which is coverage of this case and coverage of the Supreme Court that you're seeing. So we've had two recent cases, one an EPA case that was 9-0. Then we've had this NRLA case, National Labor, NLRA, National Labor Relations Act case

that was 8-1. And all of these are further evidence of how awful the conservative court is. The conservative court doesn't like the environment. It doesn't like striking workers. Wait a minute. I'll go back and I'll say again, they were 9-0 and 8-1, which means between those two cases, you had the Democratic nominees 3-0 and then the Democratic nominees 2-1. So I ask you, were these cases close and were they ideologically charged by any reasonable measure? And the answer to both of them is no, they were not close. They were

not ideologically charged by any reasonable measure. And yet people go, got very angry anyway. And this just goes to show, Sarah, how much Supreme Court coverage and how much Supreme Court commentary is driven entirely by outcomes of the case in the sense of who wins and who loses and do I like the winning party or do I like the losing party? And that's the whole deal. That's the whole deal. So the EPA lost, bad. Striking workers lost, bad. But there's no explanation or understanding of the underlying facts of the case or the underlying rule that's articulated. And fortunately, the Democratic nominees,

the justices who are nominated by Democrats, actually pay attention to the rules, actually pay attention to the relevant statutes. And these cases aren't as controversial as the coverage would indicate. So that's my coverage rant that is just sort of a omnipresent existing rant that applies to legal coverage in general, but was particularly egregious here. So that's one. extent that if the actual standard is arguable, well, what a ridiculous standard. The idea that if something's arguably preempted, what does arguably mean? You can argue almost anything.

As we've learned, God knows. Yeah. So it seems to me that it's actually, there's a modifier that's missing. Like, There's a modifier that's missing. Like, credibly argue, seriously argue, come close to preemptive. I don't know. It's a weird standard, but it also strikes me as self-evidently true that granting workers the right to strike

does not grant workers impunity from litigation for actual torturous conduct that they undertake while striking. Because here the facts are really bad. They put the employer in a terrible position where they were definitely going to lose product, the concrete, and potentially lose the trucks, their assets that could cripple the entire business, that the right to strike does not include a right to destroy property. And so I think it's a self-evidently correct decision. Eight one indicates it wasn't all that close to anybody. But I do agree with the concurrences that say this standard of arguably preempted is just weird.

So good result under appropriate reasoning, but still lingering out there is a weird standard. And like the majority said, I mean, and even the concurrences, they did not need to reach Gorman preemption in this case to decide that this whatever it might be certainly wasn't protected striking when you allowed the concrete to be put into the trucks to begin with and drove off knowing that your strike was going to be in an hour and not informing your employer

so I don't think that you should read into this that there were only two justices to get rid of Gorman preemption at all. I just think it wasn't this case. And you have two justices just sort of noting for the future, an advisory opinion, if you will, that they certainly believe that Gorman preemption is on the ropes. All right. Next up, the ever so exciting, if you're a corporate attorney, False Claims Act case. This gets a little messy and in the weeds. So I'm going to read SCOTUSblog's summary of the facts here

because I thought they did a nice job. But actually, I'm going to summarize SCOTUSblog's summary of the facts. So I'm going to do a nice job with their nice job. That's the plan. Basically, you have Super Value and Safeway, which operate hundreds of pharmacies nationwide. They then get reimbursed by Medicare, Medicaid, etc.

for prescription drugs. All right. The law says to get reimbursed, you cannot collect more from the government than the, quote, usual and customary price for a drug, which is defined as the cash price charged to the general public. So there started to be this price matching war going on

between Walmart, Super Value, Safeway, maybe like a Costco. I couldn't quite tell. And so basically Super Value and Safeway were charging this discounted price to people coming in and getting their drugs, but they were charging the government the non-discounted price. So did they commit fraud? Well, so the False Claims Act says you have to act knowingly, which the statute defines as acting with actual knowledge, deliberate ignorance, or reckless disregard. And the question here, which got a little, I don't know, I found it sort of funny, whether super value and Safeway's subjective belief

is relevant or whether just any reasonable argument. And this is a little flipped on its head from what we usually see, David, because normally someone reads a statute or a law and thinks that what they were doing was just fine. And then it turns out that it wasn't. Here, however, they thought what they were doing violated the law,

but there's an argument that it didn't. And so the Supreme Court had to decide whether their subjective belief that they were violating the FCA was knowingly, or whether the fact that there was an objective sort of argument, an objective reasonable person could have thought that charging the government their normal price was the usual and customary price, even if they believed that they were basically defrauding the government. This was a very, very big deal out there for False Claims Act cases, anyone who deals with government contracting, healthcare, defense, all of that. The Department of Justice has recovered more than $70 billion since 1986 under the FCA.

And drumroll, it was a unanimous opinion finding that, yeah, if you think you're breaking the law, that's knowledge, that's knowingly. So super value and Safeway not in good shape coming out of this. super value and Safeway not in good shape coming out of this. Certainly a lot of companies wanted there to be a any good argument will do to get you out of the knowingly standard. So this means a lot more FCA cases for the Department of Justice, perhaps, presumably. David, did you find it as exciting as all those corporate attorneys did? I have to say that I didn't find it incredibly exciting and I actually found it less exciting than another case that I actually thought we were going to talk about and not that one.

All right, we'll get to that one in a second then. I just want to wrap this one. So Senator Chuck Grassley was super pumped because he's a big FCA guy. He put out a statement, like in true Chuck Grassley fashion, was just over the moon. But also, David, I got a really interesting message.

And I didn't tell you about this, but back in March, I actually got a message from one of the whistleblowers because this came as a key Tom case where individuals can sue in the shoes of the government. And I'll read you a little bit of it. I am one of the pharmacist whistleblowers involved in the super value case set for April.

When we started down this path to the Supreme Court, I tried to educate myself on the process as much as possible. I read everything I could get my hands on and I'm glad I discovered you all show because I find it fascinating and we'll stay with it long after our fight is over. Just wanted to say thank you. So he texted me after the opinion came down and he said, it is a very surreal experience that I can't even really explain, but we won 9-0. Even though the Supreme Court

experience is now over for me, I'm so glad I discovered your podcast. And then he said, somewhere along this path, this quit being just about our case to me. Before this process, I wouldn't have envisioned that. The FCA, other whistleblowers and taxpayers getting a square deal, counting on us, weighed heavily on me. I actually had a heart attack during this process, and I'm sure the stress played at least some role. The thing I took great satisfaction in was that those advocating for us came from both political sides. 33 state AGs from the most red and the most blue states, along with Chuck Grassley, with the current administration all on one side, pulling in the same direction, told me that we were on the right side. Then to see all nine justices agree in right unison

that I think Abraham Lincoln would have approved of when he signed the FCA makes me very proud of our fight. So that's cool and tells us that, you know, there's real people involved in these cases. Yeah, Sarah, I got our wires crossed about the two cases. And so I knew one was the NRLA case. And the other case, maybe this is my old trial practice coming, was I thought it was Dupree versus Younger, which I actually found oddly fascinating. And this case involved an individual filing a lawsuit

relating to an incident that happened in pretrial detention in a Maryland state prison. He claimed that a person ordered, a correctional officer lieutenant ordered three prison guards to attack him, sued a younger, sued Dupree for damages. All of the facts of the case are not all that interesting compared to the procedure here. And this is going to sound to people who do not do trial practice, like, why are you talking about this at all? But for me, as a

former trial attorney, trial and appellate attorney, it was super interesting. But when I explained it to you, you're going to be bored. So I'm just going to warn you. The question was essentially this, that the plaintiff moved for summary, or the defendant moved for summary judgment on the claim that the plaintiff had failed to exhaust administrative remedies. Rule 56, this is the rule that is the Federal Rule of Civil Procedure regarding summary judgment, required the district court to enter judgment on a claimer of defense if there's no genuine dispute as to any material fact and the movement is entitled to judgment as a matter of law. In other words,

what happens at summary judgment is you're saying to the court, look, the facts are established. There's no argument about the facts that is sufficient to change the way the law will apply. So all that really matters here is applying the law to the facts. And so this is just a legal issue. It doesn't need to go to a jury. Juries decide factual issues. Courts decide legal issues. So what happened here is the district court denied the motion finding there's no dispute that the Maryland prison system had internally investigated the assault, included this inquiry, satisfied the exhaustion obligation. Now, remember, the facts here are not super important. It's all about process. So, at trial, Dupree did not present evidence relating to his exhaustion

defense. The jury found Dupree and the four defendants liable and awarded the plaintiff $700,000 in damages. Now, here's where it gets interesting. Dupree did not file a post trial motion under rule 50, which allows a disappointed party to file a renewed motion for judgment as a matter of law. So he appeals a single issue to the fourth circuit, the district court's rejection of his exhaustion defense. And this is coming from the court syllabus. The fourth circuit bound by its precedent, which holds that any claim or defense rejected at court's rejection of his exhaustion defense. And this is coming from the court's syllabus. The Fourth Circuit, bound by its precedent, which holds that any claim or defense rejected at summary judgment is not preserved for appellate review unless it was renewed in a post-trial motion to miss the appeal. Okay, I know you're all wanting to turn this off, this podcast, but

I find this interesting and here's why. One of the things that's really frustrating about trial practice is how many freaking times you make the same argument and you make the same argument so many freaking times for one reason and one reason only to preserve the issue for appeal.

And so here's the way this will often work. You're a defendant. You'll file a motion to dismiss an initial complaint. You lose the motion to dismiss. You go on and you have discovery and before, after discovery and before the trial, you file a motion for summary judgment. Well, maybe your motion for summary judgment is rejected. So then you have a whole trial. Then after the trial is over, everyone files post-trial motions. And what you end up doing is often making the same argument, the legal argument,

at the motion to dismiss stage, at the summary judgment stage, and at the post-trial motion stage, even if the judge has ruled the same way every single time you've made the same argument. And why do you keep doing it again and again and again? Because you're worried that if you don't make the argument at each specific stage, you're going to waive your ability to appeal it. And what the court here is saying is, wait a minute, if you lost a legal issue

before trial, you don't have to make the same legal argument after trial, this is what the court decided, to preserve it for appeal. Okay, Sarah, I found that interesting just because it streamlines things just a little bit. It tells trial attorneys they don't have to constantly make the same argument again and again and again to preserve it for appeal. So just maybe this was me being triggered by all of the repetitive briefs that I had to file back in the day.

But I found it interesting. Do you know what I like about it, actually? I like that it makes lawyers and makes good lawyers less important. Because, you know, what you want is to have as few sort of secrets as possible. And there's a purpose to not waiving arguments, that you need to preserve arguments.

There absolutely is. But at some point, it becomes this secret of the trade that your lawyer knows you have to preserve it at every single stage instead of simply preserving it at one stage along the way. So yeah, I think I'm with you. I think the more we can, especially in those criminal contexts,

protect criminal defendants with decent lawyers, I think that's a good thing. Yes. Yes. So the ruling was to be clear that you don't have to file a post-trial motion to preserve for appellate review a purely legal issue resolved at summary judgment. Makes a ton of sense. Unanimous court. We've been talking about a lot of unanimity lately, or near unanimity, 9-0-8-1 I have a feeling that's going to end real soon and remember

the Supreme Court opinions don't come out randomly they come out when they're ready so it would not be surprising that many of our cases in May would be more unanimous, more kumbaya friendly, setting aside that Andy Warhol spat

between Kagan and Sotomayor perhaps. But a lot of the times that just means that the more contentious cases are still in the works. So hold on, it's coming. And we'll take a quick break to hear from our sponsor today, Aura. Ready to win Mother's Day and cement your reputation as the best gift giver in the family? Give the moms in your life an Aura digital picture frame preloaded with decades of family photos. She'll love looking back on your

childhood memories and seeing what you're up to today. Even better, with unlimited storage and an easy to use app, you can keep updating mom's frame with new photos. So it's the gift that keeps on giving. And to be clear, every mom in my life has this frame. Every mom I've ever heard of has this frame. This is my go to gift. My parents love it. I upload photos all the time. I'm just like bored watching TV at the end of the night. I'll hop on the app and put up the photos from the day. It's really easy. Right now, Aura has a great deal for Mother's Day. Listeners can save on the perfect gift by visiting auraframes.com to get $30 off plus free shipping on their best-selling frame. That's a-u-r-a-frames.com. Use code ADVISORY at checkout to save. Terms and conditions apply. All right, David, we have a few circuit

decisions to talk about. One from the 4th, one from the 6th, and then we've got two interesting constitutional arguments, a 2nd Amendment and a 22nd Amendment case to talk about as well. But let's start with the 4th David, this is interesting. This is another DEI bias policy that was upheld. Yeah. Yeah, this case is fascinating to me, Sarah, because I don't think you can understand it fully without historical context. And so what we essentially have here

is the way universities have bobbed and weaved in response to an awful lot of court precedents striking down speech codes. So if you rewind the clock about, oh, you know, 30 years, schools were passing speech codes happily and proudly. These are universities that were out and out prohibiting speech exhibiting bias

on the basis of, you know, protected characteristics. And these codes were requiring punishment. They had punitive aspects to them where you could be suspended, you could be expelled, et cetera. And not one, not one of those speech codes, Sarah, was ever upheld on the merits. So this was a bunch of my legal career, actually,

was batting down these speech codes on college campuses. But the colleges didn't necessarily say, oh, we have seen the light on free speech. We now understand that we need to be a marketplace of ideas. We don't need to be punishing people for engaging in protected expression. So what they began to do was bob and weave a little bit and they began to establish these things called bias response teams. And what they were saying is about the bias response teams is these things aren't punitive, they're educational.

So if a complaint is levied against you, Sarah, for your hate speech on this podcast, then it's not that you can be punished by the bias response team governing advisory opinions. It's that the bias response team might invite you to a session that you don't really have to attend, but you're gonna be invited anyway, and you're gonna have a session,

and we're gonna talk to you about your incivility or the way in which your words have harmed other people. And by the way, we're going to field complaints from a bunch of, you know, from virtually anyone on campus. We're going to evaluate the complaints and then, you know, we're going to then invite people that we find troublesome to have an educational encounter. And that's essentially what these bias response teams do now. And at Virginia Tech, specifically, the bias response teams will evaluate a claim made based on, and if they find that it's constitutionally protected speech, they aren't going to necessarily do anything about it. But at the same time, they have,

the bias response team does have the ability to engage in educational measures. And the real question here in the case was, well, wait a minute, is that enough of a enforcement power to chill speech, Sarah? And in a two-to-one decision, the Fourth Circuit said, at this stage of the litigation, no, no, that the bias response team is not punitive. There is not evidence that the bias response team is punitive. And so, therefore, it is not going to be enjoined as violating, as creating a chilling effect that suppresses constitutionally protected speech. I found this really interesting on multiple grounds, but I'm super eager to hear your reaction to it.

Yeah, I mean, it was a 2-1 decision with Judge Wilkinson dissenting. And it really was just in the eye of the beholder of how punitive is this, even if it's not sort of suspension level punitive. But as Judge Wilkinson pointed out, well, wait a second. Sure, the bias response team can't suspend you per its rules, but they get to refer it to other parts of the university that can suspend you. And if you don't think that's going to be chilling, I've got a bridge to sell you. Right.

You know, I guess I just, I found that so persuasive and reasonable from a how life actually works. If you say this thing, you're going to get a quote, invitation to the dean's office. And based on that, they could still refer it

to another part of the school that could punish you. Should I or should I not raise my hand in this class? What? Obviously, that's going to have a chilling effect. I don't really understand

the arguments to the contrary. But David, this has been an ongoing problem, I would argue, within the Fourth Circuit. And it's become a bit of an outlier on speech issues, frankly. And again, I do see the difference between this speech code and this enforcement mechanism behind this speech code and many of the other ones we've seen, which have been far more egregious. I will absolutely acknowledge that we are now approaching a grayer

area in speech code world, which is a good thing. Yeah. I think this still falls on one side of that. But the Fourth Circuit has been oddly unprotective. And there's now, I think, a pretty clear circuit split emerging. I would expect you have a Supreme Court case on bias response teams, chilling effects pretty soon here. Maybe not this case, maybe not next term, but it's coming. You know, what's interesting about this case, Sarah, is this really actually implicates, and this is not a stretch at all, Things like the Twitter files and the arguments relating to when does government speech become chilling or coercive? And this is an area where it is screaming for Supreme Court involvement, screaming. So we have talked about this in multiple occasions where we've talked about, for example, the NRA case out of New York, where you had urge a course of action, even if they're not going to coerce a course of action. This is similar to that. This is the government sort of putting its thumb on the scales in a way that says, we are going to pay particular attention to civility in the arena that in areas that implicate diversity, equity and inclusion.

And but we're not going to be specifically coercive, but we are absolutely going to be investigatory and educational. When is that? Where is that line where government urging government governments asserting its point of view? When does it become coercive? government's asserting its point of view, when does it become coercive? And right now, the law is pretty favorable to government entities on that front, as we've talked about at some length. For example, in the NRA case, the guidance letters were not enough, even though it's coming from a

regulatory authority towards regulated entities. In other cases, we've seen the, it's gotta be so far as to, for example, have law enforcement come to your house to quote unquote persuade you before that is viewed to be too chilling or too coercive. And so there really is an open question in First Amendment jurisprudence right now as far as how persuasive

does government speech have to be before it becomes coercive? And that's underlying the bias response issues. That's underlying a lot of the controversy surrounding social media moderation. That's also an issue surrounding things like the New York situation where you have governments putting their thumb on this. You're trying to sort of explain to regulated entities what they should or should not do versus what they must or must not do. It's actually an area that's ripe for Supreme Court involvement. And I don't know if it's this case. I don't know if it's this case. I actually think the NRA case is a pretty darn good one for them to take a look at. But these are all linked together in an important way. Yeah. So, and when we talk about these circuit splits,

the 5th, 6th, and 11th all came out differently, as Judge Wilkinson points out. So, this is one of those cases that really could go to the Supreme Court if they're in the mood to do this. I'll talk briefly about those other three cases. So in the Sixth Circuit, and this is Judge Wilkinson's in his dissent, in the Sixth Circuit at the University of Michigan, the bias response policy only covered bias incidents that was conduct that discriminates, stereotypes, excludes, harasses, or harms anyone in our community based on their identity. Here, of course, in Virginia Tech, a bias incident included expression. Even so, the Sixth Circuit struck

down the conduct prong and that bias response at the University of Michigan as objectively chilling student expression. In the 11th Circuit, they had a similar punishment situation. So the bias response team itself could not punish students, but could only refer them to other university actors similar to here. And in the 11th Circuit, they said, the district court erred in focusing so singularly

on the power to punish. While that is no doubt relevant to the objective chill analysis, it may and may well be sufficient to prove the requisite chill. Analogous precedent makes clear that it is not decisive and in any event is not uniformly necessary. And then, of course, you've got the Fifth Circuit. Good old Fifth Circuit. A biased response team that did not engage in investigations

or punishment still objectively chilled speech given the team's ability to refer students to other offices. So, like Virginia Tech, University of Texas stated that it expressly protects and encourages free speech, but, of course,

saying that is not the same as doing it and that the First Amendment did not detract from the likelihood that the university's policies shall protected speech. So all three of these cases aren't identical, but they are similar in various components of it. And in those three cases, Speech First, the organization,

is bringing all of these biased response lawsuits. cases, Speech First, the organization that's bringing all of these bias response lawsuits, won. That makes it far less likely that the Supreme Court would take the case, in my view. Here in the Fourth Circuit, Speech First lost. The bias response team gets to stay. There absolutely will be a cert petition filed on this. Circuit split plus First Amendment issue. I don't know that I'd put it over 50%, but certainly a very high chance that this cert petition gets either granted or a dissent from denial or some other nod to the fact that this is interesting. It's going to be pretty easy to make the chill argument because there is a difference between, say, a university adopting a civility initiative, which many universities do, and I applaud them. And the civility initiatives usually include people coming and speaking about the importance of civil discourse, people coming and talking and often modeling. For example, Robbie George and Cornel West, who are on opposite ends of the political spectrum, have a roadshow where they go to colleges, they disagree about a ton of things,

and they demonstrate and model how to engage in respectful disagreement. They model friendship across the political aisle. It's really an entirely good thing in my view, but nobody would think that, well, if I, if the university is hosting Cornell West and Robbie George, my speech is chilled, right? Nobody, no reasonable person would think about that, think that. But if your civility initiative goes from, here's us advocating for civility, and it turns into when I get a civility complaint against you,

it's not that I'm going to punish you exactly. It's just you're going to get an invitation to talk to the dean. I think you can see a really quite concrete substantive difference there. And I think that when we're going to be talking about when does government advocacy for particular point of views become chilling, advocacy for particular point of views become chilling, individual targeting is going to be a necessary part of that analysis. In other words, singling somebody out from a government entity for a specific process related to their speech is very different from the government generally saying it favors civility or it favors civil discourse or it favors equality, et cetera, et cetera. It's that targeting aspect, Sarah. It's that investigatory aspect that I think is really key here. And the other thing is, and I've been

through this, I've been through this, multiple speech codes that I was involved in striking down had savings clauses. So they would be something like, well, you cannot say A, B, C, D, E, F, and G. And then it would have some throwaway line of, you know, notwithstanding free speech doctrine to the contrary. I mean, I'm just kind of making that up, but they had language in them says, well, but of course, all of this is subject to the First Amendment. But a reasonable student or faculty member is not a, that your normal student

or faculty member, it's not a First Amendment scholar. And so they're not going to know that everything that they were reading was actually protected by the First Amendment. They're going to assume that the actual speech code has some real force and effect. And courts were very unimpressed with the idea that you could explicitly ban constitutionally protected speech and then throw in a savings clause

and unban what you just banned didn't make any sense. And similarly, it's not as extreme, but similarly with the biased response teams, you're broadcasting a signal to all of these students that there's something, the government says there's something wrong with this kind of speech. And the question is, is that chilling? Is that objectively chilling discourse on these subjects? And I think if the Supreme Court takes a close look at it, the Supreme Court's going to disagree with the majority in the Fourth Circuit here. Quick follow-up on that. There was an interesting article in the Chronicles of Higher Education,

are diversity statements illegal? And this is related to those bias response teams a little, but it comes in far more in diversity statements in hiring policies. Curious what your sort of top line take is. Did those violate the First Amendment, represent unconstitutional viewpoint discrimination? It looks like we have one of our first big lawsuits filed against the University of California system on this. Yeah, this is going to be very interesting. So we've got a case filed

in the Northern District of California, actually involving a professor who was seeking a job at UC Santa Cruz, which advisory opinions listeners know is where my son is in college. And essentially the argument is that UC system imposes a DEI statement requirement on applicants for professorships and that this DEI statement has become sort of a de facto ideological screen so that it's not simply the case that the

university is saying, what we'd like to hear you talk about is we place a priority in diversity. What we'd like to hear about is your philosophy of diversity. It's saying we put a priority on diversity. There is a particular philosophy of diversity that we advance and we want to hear you agree with us. And so if your view of diversity, as the lawsuit says, is viewpoint diversity is important as important as racial diversity,

well, you're out. Or if your view of racial diversity should be accomplished through colorblind means. Well, no, then you're out because that's not how we view diversity. Or your view of diversity is that it's going to, I value it, but we can't achieve racial diversity at the expense of meritocracy. Well, then you're out. In other words, there's one particular way of achieving diversity and there's one particular metric of diversity that we find to be more relevant than all others, and that's racial diversity. That is that then essentially a loyalty oath. Is that like saying, because there's already

Supreme Court precedents that said, you can't impose loyalty oaths on professors. You can't make a professor, for example, swear an oath to a loyalty oath to the United States, for example. It's a very interesting question. And I think it's going, it's going to turn quite a bit on the facts, because on the one hand, the university is going to be able to say we prioritize diversity. They are going to turn quite a bit on the facts because on the one hand, a university is going to be able to say we prioritize diversity. They are going to be able to say that. But on the other hand, are they going to be able to say that, well, our prioritization of diversity means that we're not going to permit a professor to work here

who disagrees with the way in which we want to achieve diversity. I think they're going to have a real problem there, Sarah, but it's going to depend a lot on the facts. How strong is the factual claim or assertion that you have to agree with a specific ideology to receive that, to get this job? And there's some evidence in the UC system or in California, that sometimes the diversity statements are used to knock out a very high percentage of applicants, that the diversity statements alone

are used to knock out applicants based on agreement with the university. And I think that that's gonna present a real problem for the UC system. The more they're going to require ideological agreement, as opposed to sort of an abstract commitment to a diverse community, I think that the more they're going to have trouble. But it's going to be highly fact dependent. It's going to be highly fact dependent.

All right, let's touch quickly on this Sixth Circuit case. This one's really more of a follow on to Angry Cheerleader from previous Supreme Court term. Remember Angry Cheerleader? She posted on her Snapchat off school property, not during school time. Well, she posted F cheerleading, but like with other letters involved. And they punished her for that off-campus speech, the Supreme Court saying no to that with an Alito opinion that I didn't think was spicy enough. But here we have the

follow-on in the Sixth Circuit. It's a fake Instagram account, also kind of known as a Finsta. Although I think Finstas are supposed to still be you. They're just like anonymous. But nevertheless, this is a Finsta that they made about their teachers. So HK makes a fake Instagram account impersonating his biology teacher. And then he shares it while playing online video games with two of his friends. They then start posting on it. And they make several more posts about different teachers. Not just the biology teacher, but now the English teacher, the substitute teacher slash football coach, and a disabled student.

The posts get, I don't know, kind of creepy and violent and a lot of stuff about sex. I mean, it's teenage boys, right? And the question is, can the school punish the student who created the Instagram account, not necessarily the one who posted the really gross stuff. And the Sixth Circuit said, yes, they can. David, this was off-campus speech. Off-campus hours, all of that stuff, very similar to angry cheerleader, but they made some distinctions

about the disruption that it caused. A lot of students were gossiping about it. It made one teacher cry during class. It made her very uncomfortable. Did you think that that was distinction enough, David? Where'd you fall? I didn't like this case. I disagree.

I mean, in no way am I defending the fake Instagram account, the merits of it. In no way am I saying that's the way anybody should behave. I mean, let's just be pretty clear. So here is one. It's a fake message from a teacher from the fake account about a football coach. I will find and kill so-and-so.

I'm going to strangle him with my bare hands until he is barely conscious, then let go. Once he is awake again, I'm going to run over him with my effing car and crush his skull into a million pieces. So, not great, Sarah. There was also something about curb stomping a cat, which made me very uncomfortable.

Like, boys talking about curb stomping cats is like a red flag for me, but let's set that aside. Really, really bad. Okay, really bad. But also the question is, I have questions about what substantial disruption means in this context.

It seems like people got upset about the speech, but that's not what substantial disruption means really. The fact that I'm upset about the speech, but that's not what substantial disruption means, really. The fact that I'm upset about it or that it even might make me cry is not substantial disruption. I felt the exact same way because you sort of end up with an eggshell teacher problem. Like the one teacher cried,

so now your speech isn't protected? How do we judge the sensitivity of that? And certainly like apply it in a different context. Someone says that they think marriage should be between a man and a woman on their Instagram account. And that makes a student cry and a teacher cry. And everyone's talking about how could this person do that? If that speech is going to be protected, which I think it all would be, we wouldn't say that causes a substantial disruption. You post it on your Instagram, off school time, off school property,

but it disrupts class because everyone disagrees with you and it's a controversial opinion and all of that stuff and a teacher cried about it. So in this case, just because the speech to me is objectively way worse

and not interesting. Yeah. But the underlying reasons that they give for the disruption aren't sufficient to me. Yeah, exactly. Like under what circumstance you came up with, I think a perfect analogy, or let's say they're talking about trans issues and people cried, or they're talking about somebody supporting Donald Trump and people cry. Hey, we just had a case we talked about several months ago about somebody wearing a MAGA hat to a teacher training and it caused teachers to cry

or to have an emotional reaction. Does that mean you can't wear a MAGA hat? I mean, so again, in that case, it came out correctly. They said that that subjective emotional reaction wasn't enough to prohibit speech. I kept looking at the quote substantial disruption and saying, where's the beef here? Because other cases where there's substantial disruptions, you'll see things like evidence of violence, like gang activity or things like that, that literally end classroom participation. Here you just seem to have a subjective emotional reaction.

The other thing is, and I go back to this with the angry cheerleader case, are we wanting to give schools jurisdiction over conduct, not on school property, not during school activities? Is that what we want to do? Or isn't that parental jurisdiction? Also, there is Instagram jurisdiction here.

Instagram can take action about this. I was really uncomfortable with that case. And again, the kids were bad. I hate the after school part. I mean, you know that from angry cheerleader. Oh yeah, these are my kids. I'd be super pissed and very punished. All the punishments. But off school grounds in their free time, again, imagine a non-tech version of this where the kids, I don't know, are scrawling things in the yearbook. We don't let the school then punish that just because you scrawled it in the yearbook at home we don't let the school then punish that just because you scrawled it in the yearbook at home in your free time on the weekend with your stupid, immature buddies.

Okay, but David, there was one argument from so the dad brings this case. And again, what's interesting here is it's the student who created the Instagram account, not the one who posted these things. They suspended him for creating the Instagram account and sharing the login. And that that was sufficient to have been sort of approximate cause of the disruption, which also seemed weird to me. But David, okay, this was the worst argument that the father made on behalf of his son.

Obviously, it's the lawyers, not the actual father who made this argument. That section 230 of the Communications Decency Act protected the creator of the Instagram account from the posts made by his two idiot, you know, halo friends or whatever. The court, I think, did get this one correct. They said,

Nah, dog. Under 230, no provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider. To the extent Section 230 applies, we do not treat this student

as the publisher or speaker of the post made by the other two. Instead, we have found that this student contributed to the harmful speech through his own actions. Fair enough. Yeah, I don't think Section 230 has much to do with this. But creative, creative idea. No, I think this is all about... Very creative. Very creative. The substantial disruption evidence you need and how that would apply in any other circumstance, it has to be uniform.

It can't be that like, well, curb stomping a cat is upsetting. And so the teacher cried. Okay, but to someone else, as you said, something about trans issues or whatever will be equally as disrupting. So that can't be the standard. That's number one. Number two, and this was my beef always with the Alito opinion in Angry Cheerleader, they refused to draw the bright line for off-campus speech, off-school hours, whether it's the parents or the school. And they were like, well, it's going to depend on that substantial disruption prong. Here we see the problem with not having any clear guidance to the lower courts, because I don't see a ton of difference

between this and angry cheerleader in terms of how the Supreme Court wanted it to be applied. I don't know that the Sixth Circuit erred in that sense. I think they weren't given a lot to go on. And substantial disruption case law has always been kind of a mess anyway.

It's always veered in- Of course it is because that's a nonsense. Yeah. And it's always veered into Heckler's veto. So if it's, if the speech makes people mad enough, then that's substantial disruption. But wait, wait a minute. No, I always thought that the better way of looking at substantial disruption was not did it make people mad, but more like a time, place, and manner restriction. In other words, there's a difference between wearing a black armband,

even if that makes somebody who, and this is the Tinker v. Des Moines case, you might have a black armband to protest the Vietnam War and the person sitting beside you, their dad might be in Vietnam and it might really upset that student for reasons that make a lot of sense. But that's still, that's not viewed as substantial disruption.

Except, wait a minute, there are other cases where the fact that you wore something and it really upset people was substantial disruption. I think the better interpretation of of substantial disruption is the difference between wearing a black armband and interrupting math class to chant you know, no war in Vietnam, so that you are actually interrupting

instruction. That's your substantial disruption. You caused the disruption, not your speech. Yeah. Like, you're disrupting. Not people's reaction to your speech was the disruption. You caused the disruption. How hard is this?

The problem, I think, for this student, his dad, because angry cheerleader just came down from the court, I think a very low likelihood of the Supreme Court granting cert in this case. I think they're going to let this percolate a lot longer. But David, I just think to all the reasons you just said, substantial disruption, they've got to do a better job making that bright line distinction off campus, on campus.

It is basically impossible. I am having trouble coming up with a scenario where you could meet what I think our substantial disruption prong is, where you are the one doing the disrupting off campus and during non-school hours. Sure, if you're hacking into the school's email system to send an all-school email, but I don't think that's then off campus. You were acting on campus, if you will, by using the school's email system, something like that. But otherwise,

it cannot be people's reaction to your speech is the disruption. Otherwise, I don't see the difference between that and Heckler's veto. Let's, two quick ones, a Second Amendment and a 22nd Amendment. Two, two, two. Hunter Biden may be the next poster child for the Second Amendment. There was a great piece by Betsy Woodruff-Swan in Politico about what at least is being discussed behind the scenes in the Hunter Biden investigation. Now, a few things to bear in mind. No charges have been brought against Hunter Biden.

We do not know what charges the Department of Justice is even really considering. But Hunter Biden's lawyers have said that if their client is charged with a gun crime, they will challenge it under the Second Amendment because the gun crime would be that when he bought the gun, he was regularly using crack cocaine, according to his own statements. But federal law bans drug users from owning guns. I'm sure you see the problem here for those who tuned into our domestic violence coverage.

Now, wait a second. Can you exclude an entire group of people from owning a gun who have not been convicted of a crime or had criminal process brought against them? So remember, it's not you've been convicted of a crime or had criminal process brought against them. So remember, it's not you've been convicted of drug charges. It's that you use drugs. So when you filled out your little form, you said you didn't.

Turns out you do. And federal law bans drug users from owning guns. Will that get upheld under the Second Amendment? Now, there's a few things under here, David, because there's one, the underlying banning drug users from owning guns. And then there's a lying on the form, which are different problems for Hunter Biden. But regardless, I just thought it would be really amazing if one of the next big Second Amendment expansions is the president's son.

Well, you know, Sarah, I got to say, based on the domestic violence case, he's got a non-frivolous argument. I think it's more than non-frivolous. We're at text history and tradition. And where are you going to go back to 1880 when there wasn't a Controlled Substances Act? I mean, my gosh, half America was stoned on patent medicine back in the day and wielding their firearms liberally. So I don't know. It's going to be

a pretty interesting kind of argument. And this is where, you know, we've talked about this a lot, the text history and tradition versus levels of scrutiny. They mean very different things in real life. And so I'm fascinated by this. I'm just going to be, you know, what's that gif, the popcorn, the eating popcorn gif? I'm just going to be sitting there eating popcorn waiting for this thing to play out.

I'll be honest. I don't think the Department of Justice is going to bring that gun charge. I think this is going to, when and if they charge Hunter Biden, I think it will be tax focused and financial crimes focused, not this gun charge.

But nevertheless, it's going to really put people on the partisan far right in a bit of a pickle, which is more important, arresting Hunter Biden or expanding the Second Amendment? You pick.

Fun times. Yeah, right. All right, now on to a 22nd Amendment problem. So this piece just cracked me up. And thank you to the listener who sent it in. The former Deputy Solicitor General of the United States, counsel to the Watergate Special Prosecutor, President of the District of Columbia Bar, Philip Allen, Philip Allen LaCovara, put this piece into a new website called The Messenger. And it said, can Biden name Barack Obama as his

running mate? And he says, constitutionally, he thinks the answer is yes. And I'm going to read you the 22nd Amendment because I'm sure a lot of you were like, no, obviously not. Barack Obama was elected twice to the presidency. But here's what the 22nd Amendment actually says. No person shall be elected to the office of the president more than once. And no person who has held the office of the president or acted as president for more than two years of a term to which some other person was elected shall be elected to the office of president more than once. And then of course, the 12th amendment says that the vice president must simply be eligible to serve as president. So the argument goes

something like, well, if you're running as Joe Biden's running mate, you're not getting elected to the office of the president and you are eligible to serve as president based on those eligibility standards being age, natural born citizen. Those are the eligibility requirements. David, when I read the headline, I was like, haha, that's a joke. And then when I finished his argument, I was like, haha, I think he's exactly right. I mean, it's an interesting thought experiment, right? It is a fascinating thought experiment, one that might be not an experiment at some point in the history or in the future of the United States of America, but it's Biden-Harris.

Fair enough. Last thing, succession. I wanted to make my feminist rant to you. Rant away. Rant away, because I think I've already heard it but go go we'll see so i think you can see all of succession through this lens of a critique of modern feminism and its failures shiv roy eminently qualified she actually had real jobs remember she's a political consultant running presidential campaigns her brothers are doing jack all and we're not even sure whether she should be the one to take over give me a. She's the only one who's had a real job. Then fast forward to those last couple episodes. So the Swedish dude who's like, has all the money and whatever and is going to buy the thing. She's trying to like curry favor with him. So what does

she do? She's, I don't mean flirting in like a junior high school sense. I mean, being provocative the way that adult women are. Because that's the only way this guy's going to pay any attention to her. So she does that. She does get his attention. She never actually says anything even bordering on sexual to this guy. But it's clearly there. anything even bordering on sexual to this guy, but it's clearly there. He promises her the CEO gig and then meets with her husband and says, here's the problem. And this is now like,

if your kids are in the car, go ahead and turn this off. I'm not gonna use bad words, but bad topics. He says, I would have sex with her under the right circumstances. And I think she would have sex with her under the right circumstances and I think she would have sex with me

and that's really messy. So why would I hire her to be the CEO when I could hire the guy who put the baby in her? And so the whole series ends, the last shot. It was quite the scene. It was quite the scene.

Right? The whole thing ends with her, you know, in the back of the suv with her husband who's now has the job she wants all because this guy wanted to have sex with her um this is the problem with a this idea of women um being able to have it all and use their femininity as like a sword and a shield and the excesses of the Me Too movement that I think were incredibly necessary, but then also are going to have obvious backlash. If men think that bad conduct will be punished, fine. But if they think that on the line conduct could be punished, well, guess what? They're not going to be as interested in working with women, being one-on-one with them, mentoring them. And we've seen that play out in a whole bunch of professions. I think

the good news, by the way, is that women are going to basically take over all these professions since they're the ones actually graduating from college and holding down jobs so long term i'm not too worried in fact if anything i'm worried the other direction but short term i thought all the succession should be redrawn through just that failures of feminism lens what do you think interesting that is not the feminist rant that i heard so that but it's that's very very interesting very thought-provoking the feminist rant that i heard was from nancy afterwards and it was related to the entire shiv story arc where shiv was kind of a gladiator through the whole thing was sort of a onewoman wrecking crew of various people's ambitions and was probably one of the sharpest of,

certainly the sharpest of the three main kids, what we'll just call the fail kids, the sharpest of the three fail kids. And then ends the thing in a subordinate position to the person that she had most dominated throughout the entire series which was her husband tom wamsgams and so you had this thing where the gladiator for you know every episode comes in subservient to the most sort of stomped upon man in the entire series, which viewed through that lens looks like what on earth?

I mean, is that consistent with Shiv or is that not consistent with Shiv? And as I went back and was rethinking through the whole series, I realized in my view of it, no, this was exactly consistent with the Shiv story arc, which was if you noticed it from the beginning, there was always a guy that was key for her. So at the very beginning, you had this advisor to this, you know,

democratic presidential candidate who she had a relationship with and was sort of her key to power. Then you had her dad, her, she was not like the sons who had been working in the business. She was outside of it. And so why would she be considered? Well, because of her dad. And then she ends up in the exact same place where she started, as did all the other two kids, as did Kendall, as did Roman. There was no growth. There was no development, which is what made the tragedy of all this from their perspective inevitable. There was never any growth or growing or changing. Each one of them was extremely good at spotting the flaws in the other two siblings and totally blind to their own until the very end when Roman was basically like, we're nothing. We've been nothing this whole time, which was the final sort of reveal of self-awareness. So I looked at Shiv

kind of differently in that she was the same person all the way through, but her ability to lacerate everyone else blinded us to her own weaknesses, which she exhibited straight through the series with sort of my read on it. Interesting. I just think the fact that she ends up in this loveless, pointless marriage, you can't get away from that and why

that is and sort of her philosophy as a woman who's working and why would you end up in a loveless marriage? Well, maybe some of your underlying philosophical beliefs are deeply flawed. Yeah. Well, and one of the reasons why it's a loveless marriage is because of Shiv. Because remember, their wedding night, she says to him, basically, hey, I want an open marriage. And so, you know,

from the beginning, sort of the irony here is that she ends up subservient to the very person that she was stomping into the dust from the moment the marriage started. See, this is all the vindication of Christine Imba's book, which we've talked about, I think, a while ago on this podcast, which I'm obsessed with. Sex, a Provocation by Christine Emba, where she talks about how liberal feminist philosophy has led to unsatisfying sex lives for women, where they tried to mimic male sex lives, when in fact, that's not how our brain chemistry works. male sex lives, when in fact that's not how our brain chemistry works. And that if we want to sort of have the true feminist narrative and philosophy, then it's about vindicating what makes us, not what has worked for men. And Shiv is the epitome of that. She keeps trying to be a man. She's dressing in pantsuits the whole time.

All of that. And that's not going to work. In order for feminism to work, it has to vindicate femininity, womanhood, being a woman, what we want out of sex, which is just going to be different. So having, as Christine puts it, a ton of meaningless sex to prove that you can is actually more about proving it to men

so that you look more desirable to them when in fact it's going to result in some pretty unsatisfying sex for most women not all can't make you know total over generalizations but i think that that christine could rename her book shiv sex a provocation that's funny that's funny but yeah it was absolutely fascinating to me to watch that story arc i still hated because it wasn't an arc you still hated the show but here we are still talking about it um well look the number of people who uh watch yellowstone in this country who've never heard of succession is really funny to me because the number of people who watch

succession and has never heard of yellowstone it really funny to me because the number of people who watch Succession and has never heard of Yellowstone, it's like two Venn diagrams that never overlap floating off into space. So I'll be curious how many of our listeners are like, Succession, never heard of it. Yeah, true. That's a good point. Yeah, Succession is absolutely one of the shows

that the Twitterati is watching and nobody else. Yep. Like the numbers are pretty remarkable. Yellowstone is what? 10X more popular. I think that's actually probably close. Yeah. Yeah.

Yeah. Yeah. Amazing. I, I watched one episode of Yellowstone. Couldn't really get into it, but that's, I kind of have a hang up about Westerns.

I don't love Westerns that much, but that's just probably on me. All right, well, White House Plumbers finished up. So go watch that. And that'll be our next TV discussion. I'm also gonna watch Shiny Happy People, which is the four-part documentary about the Duggars and this guy named Bill Gothard,

which is a huge deal in like conservative Christian circles. Fascinating, fascinating story. So I'm also gonna watch that. So I don't know if you'd have interest, but it's a very interesting story. With that, we're expecting more Supreme Court opinions out later this week, and we will

see you next time.