Advisory Opinions - Making Sense of the Depp v. Heard Trial

Episode Date: May 20, 2022

At long last, David and Sarah address the biggest issue in America today--the state of the Johnny Depp/Amber Heard defamation trial. They also talk about Ted Cruz's Supreme Court win, ask whether the Fifth Circuit destroyed the Securities and Exchange Commission, discuss an interesting case against Alaska Airlines, and end with a bit of legal/political potpourri.   Show Notes: -Axios: “America more interested in Depp-Heard trial than abortion” -Patel v. Garland -Federal Election Comm’n v. Ted Cruz -Jarkesy v. SEC Learn more about your ad choices. Visit megaphone.fm/adchoices

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I was born ready. Welcome to the Advisory Opinions Podcast. I'm David French with Sarah Isger, and we're covering, wow, a lot of stuff. A lot of stuff today. And we're going to start with the topic. This is the classic, is it the OJ song, Got to Give the People What They Want?

Sarah? Is it OJ's? I can't remember. I'm doing this under protest. You're doing, oh, no, you're not. I logged on and the first thing I heard was you playing footage of the trial. So for our first topic is the Amber Heard, Johnny Depp defamation trial.

And then you went, moved on to playing a Saturday Night Live skit from it. So I think you're hooked all of a sudden. Then we're going to talk about the Ted Cruz free speech case at the Supreme Court, a really interesting case out of the Fifth Circuit regarding the Securities and Exchange Commission. Then we're going to move on to a potpourri. So I don't want to tease all the potpourri because we don't know what we'll get into in that potpourri because it could include everything from post Dobbs polling of Congress to how to recounts work as Dr. Oz is going to be locked into the political fight of his life. We've got the SEC opinion out of the Fifth Circuit. I already said that. You get a jury trial. Oh, man.

I was too busy reading about Amber Heard. I know. I know. See? I know. So, yeah, we've got a lot. But why don't we, as you say, Sarah, dive right in to the Depp-Herd trial. So, do you want me to set up the kind of the sort of the issues and you talk about the

weirdness or do you how do you want to sort the weirdness and the issues set up the legal case how did we get to here yeah so the way we got to here is that uh johnny depp captain jack sparrow although i'm sure that that's not how he wants to be known now and forever, was married to Amber Heard, Mira, Queen of Atlantis, and in the Aquaman franchise in Justice League. And it was a stormy, contentious relationship. Heard accused Depp of abuse. Depp accused Depp of abuse. Depp accused Heard of abuse.

And in 2018, Heard published an op-ed in the Washington Post. That op-ed was titled, Amber Heard, I spoke up against sexual violence and faced our culture's wrath. That has to change. sexual violence, and faced our culture's wrath. That has to change. Depp argued that the op-ed implies that it was him that abused her. He began losing movie roles, sued Heard for $50 million. sued Heard for $50 million. Heard countersued him for, I believe, $100 million. Depp sued Heard also in Britain, where in Britain there is a different standard for defamation. But he didn't,

well, he didn't sue Heard. He sued the British tabloid The Sun after it referred to him as a wife-beater in an article. So there's already been a London trial that was in 2020 where the burden was on The Sun to show that its statement about Depp was correct. The newspaper, and I'm reading from a good explainer that we'll put into the show notes. The newspaper called on her to detail 14 instances during which she said Depp abused her, persuaded the judge. The judge said that Mr. Depp put her in fear of her life. And soon after that verdict, Depp was asked to resign from the Fantastic Beasts franchise. This is from the Harry Potter extended universe.

Perhaps, Sarah, the only fantasy, sci-fi, fiction extended universe I do not have interest in. But he was asked to resign from that. So now we are at trial in Virginia in the case against Amber Heard. Now you say, well, wait a minute. Didn't he already lose a case about the same facts in England? What does that matter? And the answer is it doesn't really matter that much because he sued the son in England under a different legal standard.

He's suing Amber Heard in the United States on American defamation standards. And this case would be, people would follow it anyway, Sarah. I'm sure they would follow it anyway because it's two Hollywood, I mean, Johnny Depp, Hollywood superstar, Amber Heard, rising Hollywood star, part of a superhero extended universe.

People who, you know, two very, very, very super famous people. But it's more than that, because this case has some crazy facts to it as well. Do you want to walk through some of those, or do you want to stick with me on poop gate, severed finger gate? So David, I guess the first question is, why has this trial garnered so much attention? You showed me a poll of sorts about social media interaction and average number of social media interactions per published article by selected topic, April 4th to May 16th, 2022. Her debt trial, number one, not even close, followed by Elon Musk, then Joe Biden, then abortion, then Russia, Ukraine, then inflation,

then COVID. So at least online, people are super interested in this. And I'll be honest, I don't totally understand it. You know, Johnny Depp is a household name, kind of. Yeah. So there's that. Amber Heard certainly is not. Queen Mira. This trial has been gross. And I don't mean gross in the normal, like, meaning dirty.

I mean, voyeuristic to watch. These people clearly had a terrible marriage. Both of them, regardless of who's telling the truth, maybe both of them are telling the truth at various points. It's sad. It's incredibly sad. These are two very damaged people, obviously. Yes. So yeah, set aside the law for a second. I guess I don't think it's awesome that people are enjoying it so much, but I know this isn't the first time, right? OJ Simpson was accused of brutally killing two people,

and Lord knows we watched that one wall to wall. Yeah. Yeah. And there are quirks here. So it would be watched anyway, just because it's not common and it's not frequent that you watch two movie stars fight on live TV. You know, so America's always been drawn to fame.

It's not just Americans. People are drawn to fame. People are very drawn to seeing famous people in off-screen circumstances. You know, it's one reason why you follow a movie star or celebrity on Instagram. For some reason, people find it incredibly compelling to see a famous person shop, for example. The section in People magazine, they're just like us, showing random celebrities at their worst at Starbucks. Yeah. Tried and true. No, that's true, I guess. I just, I don't know. This is felt in the little snippets that I've watched.

I have not enjoyed watching it. It just seems so hurtful, painful. You know, they're just, again, there's parts that are disputed, absolutely. Yeah. But she agrees that she was hitting him. There are pictures of her with bruises. This isn't a purely he said, she said situation. And when it comes to the defamation standard, I guess I'm also

totally confused about how this has gone to trial. So she said she was the victim of domestic violence in that op-ed. That is what is on trial here. I don't see how that's a question. I understand that he may have also been a victim of domestic violence, but there's not much question in my mind that she, I mean, again, there's just lots of pictures of her being bruised, black eyes, things on her nose. Like, what? How are we even in the ballpark here? Yeah, I was very confused about that, to be honest, given the standards.

They're both public figures, right? They're both public figures. This is, you know, a Washington Post op-ed that where there was... I mean, let me put it this way. I looked at this and immediately could find more factual foundation for Heard's allegations against Depp than I could find for the New York Times allegations against Sarah Palin.

Immediately. And vice versa, by the way. Her $100 million countersuit? She's literally on the stand saying, I wasn't punching. I was hitting. Right. That's kind of the ballgame to me. OK, then we're done here.

Both all of this is done. Now, of course, this is in front of a jury. So there's a little bit of a wild card there. And it's interesting, David. Others have pointed this out, obviously, but when you look at social media interactions, wildly in favor of Johnny Depp in this, he is winning the sort of social media battle. Now, there's some reasons for that. Some believe that he has actually spent a lot of money to win those social media interactions, that there's a lot of bots that are tweeting, posting on his behalf, that they have hired to do so. But nevertheless, I just think in this case,

like many other things, Twitter is not real life, and that will turn out to be irrelevant to a jury who's had to sit there and hear very credible testimony from both of them that they were hitting one another, they were abusive toward one another, set aside poop gate. And for those who don't know, Johnny Depp claims that after a particularly violent night, uh, he left, moved into a different house of his, and then wanted to come back. Um, after she had left the house and his assistant or manager or something told him, um, now's not a good time. And he was like, is it now a great time? I can get my stuff. She's not in the house. I have some things from Brando.

And the manager showed him a picture on his phone and it was of fecal matter in the bed. The manager and Johnny Depp say that Amber Heard pooped in the bed as a revenge. Amber Heard says, no, she doesn't find that funny. She finds that disgusting. It was the dog. I'm not sure why it's particularly relevant either way. It's, you know, certainly headline grabbing. And I suppose it goes to the dysfunction overall in the relationship. But I didn't need poop in the bed to know that this relationship was dysfunctional.

I didn't need poop in the bed to know that this relationship was dysfunctional. There've also been some bizarre objections. So when Johnny Depp's lawyer on direct examination says, okay, and what was in that picture, defense counsel objects and says hearsay. And so they have this back and forth and it's like, well, it's a picture. He's testifying to what he saw in a photo. And they're like, yeah, but it was on this other guy's phone. It's like, that is not hearsay.

I don't even understand how you're in the ballpark of hearsay there. If someone saw something, they can testify to what they saw. Yeah, yeah. You know, and the other thing, there's a few other things about this that are, one, weird enough

to like really kind of resonate across the culture, like the dispute over Johnny Depp's very partially severed finger. Oh, right. And the drawing in blood on the wall with the partially severed finger. And then when he ran out of blood from his finger, he then went and got something else to dip his finger in

to draw on the wall to write obscenities about her. Yes. So I think you're starting to answer more of your question as to why this trial is getting attention. And then there's the weirdness of the original op-ed was written by the ACLU. So this is a really kind of interesting quirk and something our listeners, many of them will know this, but something that many of our listeners may not know is how few op-eds that you read by a public figure are written by the public figure. So the general rule is if you're reading an op-ed and it's written by an actor, a politician, almost anyone other than someone who's famous for being a political writer.

And even sometimes then, op-eds are ghostwritten constantly, just constantly. And what appears to have happened is that the ACLU ghostwrote this piece, maybe in exchange for a $7 million donation or a promise of a $7 million donation with the keyword being promise of the donation that hasn't really fully materialized, but part of it was paid by, drum roll please, Elon Musk. So again, Sarah, you're answering the question, why is everyone following this thing? Because it's two famous people. It's an actress who dated Johnny Depp and then dated Elon Musk after Johnny Depp, dated and married Johnny Depp, dated Elon Musk after that.

Incredibly lurid facts. And then the other thing is there's an enormous amount of gamesmanship going on in the trial so people are known like pettiness going on in the trial so people are noting for example does amber heard wear the same thing that johnny depp wears just the day after you know that kind of thing like there are they trying to get into each other's heads? And then there are the little exchanges where one attorney maybe is, you know, catches a witness in an inconsistent statement. And these things are being rewatched and watched and rewatched millions of times, these seven-minute snippets, these five-minute snippets. These five-minute snippets. And so when you TikTok this thing or you YouTube this thing,

it looks an awful lot like just one sort of series of gotchas rather than what it actually is, which is a long and boring trial punctuated by occasional moments of interest. That's where I think social media doesn't capture this very well is because if you're sitting there as the jury, you're having a very different experience than those of us who are doing this through a couple headlines per day, maybe a short video clip. The Johnny Depp direct testimony talking about the pooping in the bed has been viewed over 20 million times on just one YouTube post of that video. To your gotcha point, David, one of the more interesting gotchas, if you will, because again, it's like this social media on the outside influencing the trial on the inside. One of Amber Heard's friends testified that there was a specific makeup palette that Amber Heard would use to cover her bruises.

And of course, those watching the trial did all sorts of crowdsourcing to find out that that specific makeup palette was not on the market at the time that they were married. Amber Heard then having to testify that in fact, it was a similar but different makeup palette. And then it's like, aha, see, if you're fibbing about that or stretching the truth about that, then maybe you're stretching the truth about all this other stuff. But again, if you're the jury sitting there, I just think you're having a pretty different experience

than the people on Facebook, YouTube, listening to advisory opinions. Yeah. And the other thing is, watch the drugs and alcohol, folks, because there are so many allegations here that no sober people do not behave that way. Sober people. And that's it. So there's two layers of sadness here. Layer one of sadness is this relationship. And there was, as you said, Sarah,

it's very hard for me to see how anyone could say that there wasn't abuse here. No, there is all kinds of evidence of abuse here. So that's layer of sadness one. And then layer of sadness two is these people, these folks, just absolutely wrecking themselves with drugs and alcohol. Just wrecking themselves with drugs and alcohol, just wrecking themselves. And, and then, you know, now because of this, this lawsuit, their worst moments are being shared to the intense delight of an awful lot of people. And, you know, look, I've known folks, I've been, I've been around long enough to have known lots of folks who have really gotten deep into drug addiction.

And their behavior at their worst moments was a little different from this. Like, this is how people behave when they are deeply addicted to drugs and thoroughly alcoholics. And it is awful. It's just awful to see. And it is now, the stars, they're just like us. This is the wrong, this is stars just like us in all of the wrong ways. But it is staggering, staggering that it is getting orders of magnitude more attention than anything else, including now on this podcast. At Real Canadian Superstore,

our colleagues collectively speak over 100 different languages and counting. We pride ourselves on items from different parts of the world. From hard-to-find specialties to tastes that will remind you of childhood. So welcome everyone. Come shop the world right here in our aisles with more ways to save at the Super Welcome Store. Real Canadian Superstore. All right. Have we checked the box? We have checked the box. Sarah, do you want to talk about our friend Ted Cruz?

So the Supreme Court had two opinions that they released. They are now pretty far behind what is the standard pace heading into June. As someone pointed out, they would need to release six opinions a week moving forward just to finish by the end of June. Hard to say whether that's the Dobbs draft leaking has cost them some time internally, but we're now in a race to July 4th, David. Supreme Court justices have plane tickets to Europe. I assure you they do not want to have to stay around into July, but we'll see whether they can make up the time and opinions. So first up, we actually had a immigration case that had Neil Gorsuch siding with the three liberal justices. It was a 5-4 opinion. A listener sent in the case in the form of a song, David. It's to the tune of The Devil Went Down to Georgia.

And I'm not going to sing it. And I'm not even going to be able to do the thing because he this is like long he did the whole thing uh it's good though the government went down to georgia and they were looking for a man to steal they were in a bind immigration court was way behind and were willing to make a deal when they came across a man with a boy named neil fiddling text and opining hot and the government jumped up on a hickory stump and said, boy, let me tell you what. I guess you didn't know it, but I've got a fiddling textualist too. And if you'd care to take a dare, I'll make a bet with you.

Now you fiddle a pretty good opinion, Neil, but give the government its due. I'll bet a green card of gold against the man staying home because I think Amy's better than you. of gold against the man staying home because I think Amy's better than you. So Amy Coney Barrett writing for the majority in this case, turning on whether this very sad immigration story, frankly, guy comes to the country illegally, applies for a green card, is going to get the green card while he's applying for it, applies for a license in Georgia, and says he accidentally checks the box that says that he is a U.S. citizen. That was a fateful box-checking error. The U.S. government then rejects his green card,

saying, you know, basically under this sort of, you know, fraud idea. And not only that, but moves to deport him. Neil Gorsuch pointing out in dissent that in Georgia, you're allowed to get a driver's license without being a US citizen. So the mistake on checking that box was irrelevant to him being able to get a driver's license and therefore should have been irrelevant to his green card application. Regardless, in this case, Mr. Patel loses and will be deported. Now, it'll be interesting, David, to see if the government will, in fact, drop the deportation part of this after the fact or whether they'll continue forward. I have to say of the people that we're interested in having in this country, Mr. Patel seems like a pretty good guy, but lost his case. Now the big case, David was the Ted Cruz case. We talked about this on AO when it was argued, this is about whether and how much you can loan your campaign money and get repaid after the fact. So under Section 304 of the Bipartisan Campaign Reform Act,

a candidate can loan their campaign unlimited sums of money and they can get repaid unlimited sums of money within the first 20 days after the election with money that was raised before election day. But if you spent all the money, which presumably if you're loaning your campaign money, you did, you can't get repaid more than $250,000 of post-election day money that's been raised. And if it's after 20 days, then you can't even use the pre-election money for it. This case was messy, David. And I got to say, so it's 6-3 opinion. Roberts writing for the majority, Kagan writing, I mean, people said it was a fiery dissent. I think it's just a pretty normal Kagan dissent.

It's well done and it's sharp as she is, right? She's just a sharp lady, y'all. A good writer, He's just a sharp lady, y'all. A good writer, sharp mind. But there's lots of stuff here. So, I mean, Roberts is just having none of it. When it comes to free speech, you're seeing Roberts really let his speech freak flag fly here. He says, look, this is prophylactic on top of prophylactic. The only way you get past strict scrutiny or

any exacting standard, and he says we don't need to decide it here because the government can't overcome any standard, is this idea of actual quid pro quo corruption or the appearance of quid pro quo corruption. But he says that's why we have the contribution limits in the first place. The $2,900 was supposed to prevent the quid pro quo or appearance of quid pro quo corruption. That's still in place. Even for post-election donations, you still can't give more than $2,900. So this is on top of that prophylactic. And he says, no. Why would 86 people giving that amount of money to the $250,000 mark not be corrupting? But then after that, how many prophylactics do you need? There's no evidence in any of the states that have loan repayment that there's been any problems, which is always a problem, by the way, on the campaign finance side.

Again, you have Texas, Virginia, Pennsylvania all having no limits on state races. For instance, they don't even have the twenty nine hundred dollars. And there's just no evidence as compared to states that do or as compared to federal candidates that it's made much of a difference when it comes to bribery, corruption, the appearance of corruption. So, A, that's just sort of fascinating in general. Now, you know how I feel about BICRA. I think that it has caused a lot of our current woes, David, in terms of the incentives and disincentives within our politics. It's given rise to small dollar donations, destroyed the political parties, a lot more base politics, moved partisans to the wings of their party. Now, there's some other factors. Obviously,

the great sort where people move to places where they agree with the people next to them, gerrymandering, all of those things have had an effect too. So anyone who tells you there's like one thing we could fix, they're just not being very realistic about how the world works. But I think Bikra has been bad. Nevertheless, David, I will tell you, I have some trouble caring about this case because I think Elena Kagan makes some great points in the dissent from sort of a congressional policymaking example. Let me just read you the first paragraph, which is obviously where she sort of uses her best example. A candidate for public office extends a $500,000 loan to his campaign organization, hoping to recoup the amount from benefactors post-election contributions. Once elected, he devotes himself

assiduously to recovering the money. His personal bank account, after all, now has a gaping half million dollar hole. The politician solicits donations from wealthy individuals and corporate lobbyists, making clear that the money they give will go straight from the campaign to him as repayment for his loans. He is deeply grateful to those who help as they know he will be more grateful than for ordinary campaign contributions, which do not increase his personal wealth. And as they pay him, so he will pay them in the coming months and years, they receive government benefits, maybe favorable legislation, maybe prized appointments, maybe lucrative contracts. The politician is happy. The donors are happy. The only loser is the public. It inevitably suffers from government corruption.

Look, David, I think she makes a solid case as to why loans are different when they are repaid after an election. The question is whether they are so different and that there's no other way to stop that quid pro quo corruption as to be meaningful. So just to take her example here, one, she says he has a $500,000 hole in his bank account. Well, under current law, Congress said $250,000 of that can be repaid. So we're actually talking in her example about a $250,000 hole based on this case. Second, she says he solicits donations from wealthy individuals and corporate lobbyists, something presumably he did before the election. Again, these people can't give more than $2,900, the same they could give before they can give after. Now, here's where I think it is important.

The money that people normally give to a candidate, to a campaign, can only be spent to further the campaign's interests. The candidate cannot spend that money on a vacation, on dry cleaning, on personal expenditures. But if you've loaned your campaign a large amount of money and you win, people would know that the money they're giving you after is actually going directly into your bank account. Now, you're giving the money to the campaign. The campaign is then writing a check to the individual. That's what makes this different, David. And that is a meaningful difference to me. The problem is, of course, is it meaningful enough

under the First Amendment to prevent someone from loaning their campaign money and the types of incentives we have where someone doesn't have the money to just give their campaign a million dollars and write that off? We're talking about people who,

you know, maybe are spending large amounts of their own money and taking the risk that they lose, and then nobody's going to be paying back their loan. What do you think? So I think Roberts is right. I think Kagan writes in a very compelling way, in the way that many limitations on campaign finance are justified in quite compelling ways with an awful lot of realistic sounding hypotheticals. So the way she opens her dissent is that makes a ton of sense. I can see that. I can see how Congress could imagine that situation. But the problem is we have the First Amendment here,

But the problem is we have the First Amendment here, and political speech is core speech. I mean, that is core speech. And so if you're going to put a restriction on political speech, you've got to be able to do it on something a lot more concrete than a compelling set of hypotheticals. And I like the way Justice Roberts phrased it in the opinion of the court, where he says, the government puts forward a handful of media reports and anecdotes that it says illustrates the special risks associated with repaying candidate loans after an election. But as the district court found, those reports merely hypothesize that individuals who contribute after the election to help retire candidates' debt might have greater influence with or

access to the candidate. That is not the type of quid pro quo corruption the government may target consistent with the First Amendment. And I think that absolutely nails it. When you're talking about the First Amendment and the very high value we place on political speech and money, giving money to your own campaign is absolutely a form of political speech and money, giving money to your own campaign is absolutely a form of political speech, as is giving money to a campaign when it's not your own campaign as a form of political speech. You got to do better than saying, well, I can imagine how this could be used poorly. I can imagine how it would make us corrupt.

And you brought up Bikra, Sarah, and small dollar donors, because we're actually seeing some of the consequences of when we do, in fact, change First Amendment doctrine, because we can imagine how bad it is when you can give unlimited amounts of money to a political campaign. Well, we didn't quite imagine how bad it would become when you can't give unlimited money to a campaign and when you have to go out and spread a whole bunch of Facebook memes to raise money 25, 50 bucks at a time from the angriest cohort of Americans. And so that's, I think Roberts has the better of this, but I will tell you, I always enjoy reading Kagan

because that opening, that opening first few paragraphs, I was like, yeah, okay. And then I had to go back and reread Roberts. No, no, okay. I had to get my First Amendment head screwed on straight again through Roberts. But, you know, she writes in a very compelling way about the potential, the potential. But you got to have more than potential for corruption if you're going to just dive into core political speech like this. The other reason that I don't care so much is because for the vast, vast number of campaigns, vast number of campaigns, this won't matter for a few reasons. One, if you loan your campaign a million dollars, you can repay it before election day. And then the campaign goes into debt.

So that way you don't have to worry about you not getting repaid. And we know that this is pretty relevant because Ted Cruz loaned his campaign $260,000, knowing that the $250,000 would get paid back and that he had $10,000 on the line here, which is just, I mean, they said this was a test case. It was meant to test this law in particular, that it was a setup, which for those then rolling their eyes, believe you me, there are plenty of setup cases on both sides. The Ten Commandments case was a setup case. Lots and lots of sort of the most famous constitutional cases were actually sort of created cases. Even Plessy was a created case. A lot of the civil rights cases were set up so that they could challenge the laws. Sometimes you win those, sometimes you lose them.

On the other hand, David, the Chief Justice cites that after BICRA was passed, there were suddenly a lot of loans that were right at the $250,000 threshold, meaning that candidates absolutely were not loaning more money because of this threshold. I just think we're talking at the margin here. Most people aren't going to be able to personally loan their campaign more than a quarter million dollars without having to get a bank involved, in which case you're not going to bet on just winning the race. And of course, as I said before this, you could repay yourself from pre-election day dollars before the election. You could then for 20 days after pay yourself with pre-election day dollars. You just couldn't come to people after you'd won and

said, hey, give me money because now it's going to go directly to me to repay this loan. I don't think this is going to make one bit of difference in terms of who is incentivized to run for office. I also don't think it's going to make one bit of difference in terms of corruption or even the appearance of quid pro quo corruption. So all in all, David, you know how much I care about First Amendment cases, and I really care about BICRA and the distortion effect it's had on our politics in the last 20 years that's been really, really bad in my view. But this ain't it. This ain't it. So this is your billboard case. This is my billboard case, I guess. Yeah. Yeah. Yeah. No, I'm kind of with you on this as well.

This is not, I mean, good for, it's better to win a First Amendment case than lose a First Amendment case. Even if it's of incremental value, very, very, very, very incremental value. But in the scheme of things, I'm not super interested in it. But I'm probably slightly more interested in it than I was in the Depp-Herd trial. Low bar for me. Low bar. All right. So this next one is interesting. Fifth Circuit case. I'll just read the key paragraph that rocketed around Twitter. This is called George Jarkesee, I guess is how you pronounce it, versus the SEC. And this is a fifth circuit case in front of Judges Davis, Elrod, and Oldham. And Judge Jennifer Elrod, now correct me if I'm wrong, And Judge Jennifer Elrod, now correct me if I'm wrong,

advisory opinions singing guest? Singing friend of the pod, absolutely. And it will be very relevant to listeners that Judge Elrod was a trial judge before she went on the Fifth Circuit. She has written about the majesty and importance of jury trials in the United States system, one of the things that makes it unique in the Seventh Amendment guarantee of a jury trial. So just to be clear, when they got their

panel a week before the argument, it depends on circuit, by the way, some circuits tell you your panel right away. Some you get it a month beforehand. The Fifth Circuit is, I believe, one of the shortest timelines where you find out which judges you're going to be arguing in front of. It's one week. So when the SEC saw their panel and saw Jennifer Elrod on it, I hope they knew that this was already over. There is nobody who loves a jury trial more than Judge Elrod. Yeah. And so this is essentially what happened here is that you had a securities fraud case brought by the Securities and Exchange Commission. And under the relevant regulation, this is initially heard by an ALJ, an administrative law judge.

Okay, so here is, I'll just read the first two paragraphs. And Sarah, you can put this in plain English for people. It says, Congress has given the Securities and Exchange Commission substantial power to enforce the nation's securities laws. It often acts as both prosecutor and judge, and its decisions have broad consequences for personal liberty and property.

But the Constitution constrains the SEC's powers by protecting individual rights and the prerogatives of other branches of government. This case is about the nature and extent of those constraints in securities fraud cases in which the SEC seeks penalties. Here, moving on now, this is this case. The SEC brought an enforcement action within the agency against petitioners for securities fraud. An SEC administrative law judge, a judge petitioner's liable, and ordered various remedies, and the SEC affirmed on appeal over several constitutional arguments that petitioners raised. Petitioners raised those arguments here before this court. We hold that

one, and this is the small bomb you heard go off on Twitter on, I think it was Monday night, Tuesday night. We hold that one, the SEC's in-house adjudication of petitioner's case violated their Seventh Amendment right to a jury trial. Two, Congress unconstitutionally delegated power to the SEC by failing to provide an intelligible principle by which the SEC would exercise the delegated power in violation of Article I's vesting of all legislative power in Congress. And three, statutory removal restrictions on SEC ALJs violate the take care clause of Article 2. Because the agency proceedings below were unconstitutional,

we grant the petition for review. We vacate the decision of the SEC and remand for further proceedings consistent with this opinion. Sarah Isger, why is that important? What is she saying? Well, for those of you who are NPR listeners, and I'm just guessing if you listen to this podcast, you've dabbled in NPR from time to time. Kai Risdahl tweeted, wait, the SEC is unconstitutional? Wait, the SEC is unconstitutional? No, no.

But that's what a whole bunch of people on Twitter thought. Folks basically saying like, oh my gosh, now the SEC can't bring enforcement actions for securities violation. Nope, nope, nope, nope, nope. So two very smart people. nope, nope, nope, nope, nope. So two very smart people. Elon Worman right away was on Twitter saying, maybe I'm missing something. And I don't mean to downplay the importance of the Fifth Circuit decision, but it seems to me lots of folks are overreacting. The court did not dismantle SEC's enforcement powers. And the SEC is not all of a sudden unconstitutional after 90 years. The Fifth Circuit simply held that if you're accused of committing a federal crime and the

government is coming after you for civil penalties, your livelihood and property are at stake. Your case should be heard in a real court with a real judge and a jury. The SEC can still prosecute. They just can't also be the judge and the jury and the prosecutor. If anything, David, this didn't go far enough for me. So I'm going to switch over to Gabriel Malor, also someone y'all should be following on Twitter if you're into legal Twitter. No, Fifth Circuit held that when SEC wants to go after your property because it believes you've committed a crime, it must do so in a regular Article 3 court with a real jury and judge, not its own in-house administrative court.

The SEC is not unconstitutional and can still prosecute. I don't really have an opinion on whether the Fifth Circuit is right about this. Seems plausible. But he says, note DOJ's immigration court, which is somewhat similar, although I think I could point out some differences here. And this is also interesting from Gabriel. The reason for the upset is just that the SEC has been operating this way for a very long time. But ALJs, these administrative law judges within the SEC, as a position was created during the Truman administration. Novelty does not necessarily imply infirmity, but it does suggest we're operating in unsettled territory. So David, here's the problem. The Supreme Court, courts in general,

have held that the executive branch can do these administrative law functions where they are the prosecutor, the judge, and the jury when it's a public right. Let's circle back to what a public right is because I, sitting here, really have trouble defining it, as did the dissent, and frankly, as did the majority. But if it's similar to something that was at common law, in this case, fraud, then you that's what the Seventh Amendment is for. It says you have a right to a jury. Once again, David, this is an example of the administrative agencies taking over stuff from other branches. In this case, one of the other things that the Fifth Circuit held was that Congress had unconstitutionally delegated a legislative power, basically, to the SEC by allowing them to do this in the first place, come up with what the public rights are, when you can

prosecute someone and try them yourself. I don't know. The facts in this case seem really clear to me. It's fraud. They tried him for fraud. He asked for a jury. They said no. They found him guilty in their own little mini court system. David, people should be outraged to find out this was going on, not outraged to find out that the Fifth Circuit said it was bad. I completely agree with you. I completely agree. One of the things that makes me, vexes me, one of the things that vexes me, Sarah, about our current system is, and I've said this a million times, advisory opinions listeners, that Congress is not supposed to be the least important branch of government. How did Congress become the least important branch of government. How did Congress become the least important branch

of government? Basically, by delegating its functions to the executive. Also here, there's another element here. So not only did Congress delegate many of its functions to the executive, the drafting of SEC regulations, those are legislative acts. I mean, they're undertaken pursuant to power delegated to it by Congress. But think about, as you said here, one branch of government, the executive branch, is drafting regulations, enforcing regulations, and adjudicating regulations. That's terrifying. No. And in this case, Congress said you can either bring your charges in federal court, SEC prosecutor, or you can do it yourself. Well, guess what the SEC decides in a lot of cases?

Why go to court and have a neutral arbiter on the other side and a jury that you'd have to convince when you could just do it yourself on these fraud cases. I am outraged. I think I can distinguish immigration courts because the person in question does not have rights under the U.S. Constitution in a lot of cases. Not every case. And this gets a little messy at times. But in that case, we're sort of adjudicating external issues about when someone has the right to be in the country. That might be something we would define as a quote-unquote public right. They're not taking your property. They're not finding you guilty in an administrative proceeding of a crime, a common law crime in this case, a fraud, taking a license that you have. The immigration courts

are deciding whether you can enter the country legally or not. That is, I think, sort of the best example of a public right. It got very messy in the discussion, I thought, in both the majority and dissent over what the SEC's public rights are that they're vindicating when, in fact, we're talking about civil fines and forfeitures and licenses and whether you can ever sort of run another large company again. Those are the types of things that the SEC rules on. Maybe a few of those are public rights, but certainly saying, give us a million dollars. Yeah, I think you should be able to have a jury for that. Yeah, no, I think you should be able to have a jury for that. Yeah. No, I think you're exactly correct. You're absolutely correct. So, yeah.

And to be clear, the SEC absolutely still can do that. They can prosecute this guy for the exact same thing. They just have to do it in front of a judge. An Article III judge. This is not overruling the SEC. Nope. SEC is still there. 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?

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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.com. Use code advisory at checkout to save. Terms and conditions apply. Okay. Sarah, I have a case that I want to tell you the fact pattern.

And I want to get your highly trained blink assessment. Blink, you know, the book by Malcolm Gladwell that, you know, yes, if you have a lot of experience in law, you can make blink assessments that are highly informed and typically accurate. So are you ready for this? I'm ready. So here's the background. Again, long-time advisory opinion solicitors will know that one of the things that I have said about the challenge of quote-unquote wokeness is that in actuality, there are many circumstances in which hyper-wokeness violates civil rights statutes. In other words, if you have a school program that says white students in one

room, black students in another room, or a school program that says, white student, you have to stand up and confess your privilege to everybody. Then you've got compelled speech issues. You've got civil rights issues. You've got race discrimination issues. And that one of the paths past toxic wokeness is civil rights laws. So a friend sent me a case, and this is Marley Brown and Lacey Smith versus Alaska Airlines Incorporated. And here's the general fact pattern. And I'll just give you the intro. The plaintiffs were flight attendants for Alaska Airlines, yet when their faith compelled them independently to ask a question about the airline support for federal legislation that would remove protections for religious employees and women in the workplace, Alaska Airlines fired

them. To make matters worse, their union not only failed to vigorously represent and defend them against the airline, but also discriminate against them because of their religious beliefs. Now, what happened? In 2021, Alaska Airlines posted an article about its support for the Equality Act to an internal employee message board and solicited employee comments. The Equality Act is proposed legislation that would add sexual orientation and gender identity as protected classes to a variety of federal statutes, and this is critical, would curtail the applicability of the Religious Freedom Restoration Act. tailed the applicability of the Religious Freedom Restoration Act. In response, Marley and Lacey felt compelled by their Christian faith to post one comment each asking about the impact of the Equality Act on civil rights for religion and women in the workplace. Alaska Airlines responded to Marley and Lacey's posts by immediately removing Marley and Lacey from their flight

schedules, terminating their employment, and disparaging their religious expression and beliefs as discriminatory, hateful, and offensive. So the allegation here is that they were terminated because of their religious practices and beliefs. So we won't go into the way the union failed to adequately defend them. But on those facts, that's from the intro. What's your blink assessment? One, I'm curious what they actually posted. Was it actually their beliefs that they were fired for or for saying things that caused a disruption

in the workforce, led people to not want to work with them, for them, et cetera? I'm curious what the airline's defense cetera. Uh, you know, I'm curious what the airlines defenses to, of course, this isn't a government entity, um, that fired them. Um, three, I think it's bad policy if that's all accurate on Alaska airlines, but I have to say it, it feels so one-sided. They were just, they were, they were asked if they have any opinions on it. They asked a question

and then they were fired for it. It's like, wait a second. That just doesn't sound very rational. So. Okay. So can I read you the comment? This is Marley's comment. Okay.

Does Alaska support endangering the church, encouraging suppression of religious freedom, obliterating women rights and parental rights? This act will force every American to agree with controversial government-imposed ideology or be treated as an

outlaw. The Equality Act demolishes existing civil rights and constitutional freedoms, which threatens constitutional freedoms by eliminating conscience protections from the Civil Rights Act. The Equality Act would affect everything from girls' and women's showers and locker rooms to women's shelters and women's prisons, endangering safety and diminishing That is the comment. Okay, so I would say that's more of a comment than a question. would say that's more of a comment than a question. But I also will say that I don't find that to be of a nature that would be so disruptive to the workplace either. Yes. But David, what is their actual claim here since they worked for a private employer? Religious discrimination. But there's a little bit of a problem here because they're going to have to show that posting this comment was actually part of their faith.

Now, maybe they can do that and say that they were, you know, part of their faith is to speak out against bad laws, etc. I don't know. This feels like an uphill religious discrimination claim to me. Now, I think so here here would be the issue that I would have. I think, so here would be the issue that I would have. So if you have a message board and the message board solicit comments and people from other faith traditions were able to respond and share their point of view from their faith tradition, and then a person from another faith tradition shares their point of view from their faith tradition, and they're immediately fired or immediately disciplined, and there's no evidence of any actual problem in the workplace. But David, the question is, if I posted that, I would have been fired too.

It's not my religion that I got fired for. It's because they don't like my position on the Equality Act. that I got fired for. It's because they don't like my position on the Equality Act. Right. That would be, you know, that would be sort of the university. I mean, the university.

Gosh, I'm so used to talking about universities. They're trying to put a speech claim into a religion, you know, box, and I just don't think it's going to work. Yeah, it is. I think that's their biggest challenge. That's their biggest challenge because it is not specifically, you know, when I read that, I thought, oh, that's a, that's a, an assertion that I could easily see on a

political message board just as easily as a, you know, just as easily in a religious website. And so, yeah, I think you're identifying one of the core issues here, and that would be exactly the question that I would have about that as well, is, is this actually a religious, it might be motivated by religion. They might have been motivated by religion but alaska

airlines wasn't and that's all that's going to matter david this reminds me a little bit of our conversation we had over the establishment clause and why it is not the case that agnosticism or atheism run into an establishment clause problem we're talking about curriculum issues and you said because a lot of these things aren't specific to any one religion, they're a political belief. They're a speech belief. This is the exact same problem here. They're going to say they posted that because their religion compelled them to. And Alaska Airlines is going to say, great, we had no idea. We found the comment against the values of our company. It has nothing to do with whether you are a Jewish person of faith who believes what you posted, a Protestant person of faith who believes what you posted,

or a Muslim person of faith who believes what you posted. Anyone who posts that has a different view of the Equality Act than we do, and we only want employees who agree with the Equality Act. That will not be found to be religious discrimination, David. Yeah, the interesting thing, here would be clear religious discrimination, or much stronger evidence of religious discrimination. So imagine if you had two employees, one, a sort of a secular conservative employee, who posted that same point of view, and one was a Christian employee who posted the same point of view, and one was a Christian employee who posted the same point of

view. And the Christian employee is fired, and the secular employee is retained. And the reason why they would fire the Christian employee is they think, well, maybe the Christian employee is going to be more dedicated to this position, and therefore, say, more anti-trans. So the question is, you know, when you're talking about Title VII and religious discrimination, is this discrimination on the basis of religion or is this discrimination on the basis of viewpoint separate from religion, separate from religion?

And that to me, you know, there's going to be, I think, some, if they can make it through motion to dismiss, you know, what I'm going to be trying to find, if I'm the plaintiff's attorney in this case, is I'm going to be trying to find evidence of anti-religious animus. I'm going to be trying to find, now, what's interesting is they do talk about how the company actually doesn't include in some of its non-discrimination diversity statements a promise not to discriminate on the basis of religion, which is weird because the law requires them not to discriminate on the basis of religion. But their sort of DEI framework really doesn't include religion.

And so there's some interesting things about, wait a minute, is there an anti-religious animus if your DEI framework is not including religion, but it's including other categories, but the law includes religion? It's an interesting case. But as a general matter, I think, unless you can identify. Okay. All right. All right. Okay. Some potpourri real quick, David. In California, a judge ruled that California's law requiring boards to have a specific number of women on them was unconstitutional under California's constitution, which is pretty fun. And per our conversation with Chief Judge Sutton of the Sixth Circuit in bringing cases under state

constitutions, I don't know why this case surprised anyone. Requiring a specific gender diversity on a corporate board feels pretty specific discrimination. Violated the right to equal treatment, said Superior Court Judge Maureen Duffy Lewis. Next up. By the way, that strikes me as so obviously correct. But it's amazing. It took a long time. That law has been on the books for years now. Interesting data. The, quote, apparent imminent overthrow of Roe v. Wade. What is the impact that it has had on the political environment so far? We have quite a bit of data coming in. The impact, David, any guess?

Nil. coming in. The impact, David, any guess? Nill. Nill. It has had no impact on the political atmosphere so far. The generic Republican, generic ballot Republicans still lead by eight points, according to an internal Democratic poll from the Democratic Congressional Campaign Committee, among other pieces of data that we have. And which, again, you know, you talked about, we talked about the herd depth trial at the beginning. We should put a link to that Axios chart. The sheer level to which the herd depth trial overtakes, and Elon Musk, by the way, and Elon Musk overtakes abortion as an issue of interest, it's by a factor of four, by a factor of four. And again, you'd never know it from Twitter, which is reason number 50 million why you can't have your nose buried in Twitter in this life. You'd never know it from Twitter, but it just keeps going back to your point, Sarah, that we'd already sorted on this issue. All the sorting has

taken place, and the people who feel intensely about it, they already felt intensely about it. This might be turning people who are at a 9 to a 10 or 11, but they were already at a nine on this issue. And it's a minority of Americans on both sides of the aisle. in the series. They talked to Republican primary voters in Ohio, Georgia, and Pennsylvania. One of those voters, a man, mentioning a couple of times that he was pro-choice and then saying that he would vote for Donald Trump in 2024. And Kristen presses him and says, but I thought you said you were pro-choice. And he goes, I am, but the economy is more important to me. So to the extent abortion is your number one issue, you've already been sorted. To the extent you're in the quote unquote wrong party, it has not been enough to move you into a different party so far. I don't think it's going to be enough to move large

numbers of people now. Again, I could be wrong, but we're still not seeing the data to contradict that overall assessment. And David, last thing, the last time we talked, you had to sort of carry the burden on the social media case with the huge Fifth Circuit ruling lifting the stay on Texas's social media bill going into effect. Husband of the pod did, in fact, file for emergency relief at the Supreme Court. Texas has now filed its response. Hard to say when we will hear something from the Supreme Court. It will be circulated to all the chambers. They'll take a vote. But at the same time, they could also write and that could delay things. I'll note that we've heard a lot from emergency petitions on Monday afternoons for some reason from the court. Maybe that's just a feeling. I haven't actually run the data on it. It also gives them the weekend.

They get opinions out on Monday morning. They sort of finalize the emergency stuff by the afternoon. I don't know if that's why that has seemed to be happening. But again, David, they're getting a little behind on opinions. So it's hard to say whether they're going to write on this one. Although it's interesting because part of the problem with the Fifth Circuit is that they didn't write anything. So I don't know. I don't know if we'll get writing. I don't know what the vote's going to be. Do you have any thoughts on those things?

Oh, boy. And it's hard for me to see that there will be writing, or at least significant writing, with the level of work that they have to do, with one exception. Our friend Clarence Thomas. media regulation, if you'll remember, where he mused openly whether common carrier regulation should apply or whether public accommodation laws could apply and sort of add political viewpoint to public accommodation laws, which, by the way, would be an interesting conversation in connection with cases like the Alaska Airlines case that we just talked about. But so I wonder, I do wonder if you could have a stay of the Texas social media law with a Thomas dissent, perhaps. Although, fun note, in the brief for the emergency relief, so as in the social media side, I will note that Justice Thomas is quoted 10 times.

How shrewd. Yeah, so the editorial function itself is an aspect of speech. Justice Thomas concurring in the judgment in part and dissenting in part, protecting editorial discretion, including quotes from masterpiece cake shop Justice Thomas concurring, etc., etc. You know, I used to have a history professor

who would say, etc., etc., Peter Cetera. Do you remember who that was? No. Oh, you're too young for the heyday of the band Chicago. I never liked Chicago. That is true. So I don't know why that popped into my mind, but it did. Eight in the morning, I'm barely awake, et cetera, et cetera, Peter Sotera. I think that's exactly where we're going to leave things this week. Not with a bang, but a vizzle. Anyway, I know I'm going to be very interested to see how this goes.

I think Husband of the Pod wins again, but we'll have to wait and see. All right, everyone, please tune in on Monday. all right everyone please tune in on monday um please rate us on apple podcast or wherever you get your podcasts please subscribe wherever you get your podcasts and please check out the dispatch.com Bye.