Advisory Opinions - Mass Shootings and the Law

Episode Date: May 26, 2022

David and Sarah talk about the terrible school shooting in Texas and explore various gun control proposals, including red flag laws. They also talk about a new Second Amendment case and its potential relationship to the First Amendment. Next up is the Florida social media law regulation. They end with a brief look at a Pennsylvania election law case that could decide the 2022 Republican Senate primary. Please note this episode was taped the evening of the school shooting in Texas. Technical difficulties delayed its release.   Show Notes: -French Press: “Pass and Enforce Red Flag Laws. Now.” -USA v. Ignacio Jimenez-Shilon -NetChoice v. Attorney General, State of Florida Learn more about your ad choices. Visit megaphone.fm/adchoices

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You ready? I was born ready. Welcome to the Advisory Opinions Podcast, the delayed Advisory Opinions Podcast, because quite frankly, listeners, on Monday, we did not have a lot to talk about. But we have topics today, and we're going to start with the worst possible topic, the school shooting in Texas at an elementary school in Texas that has claimed the lives of 14 elementary school kids. It's just almost impossible to say that. It's so horrible. We're also going to talk about the 11th Circuit issued a ruling on Florida's social media law that we're going to walk through. We're also going to talk about a Third Circuit case that, as Sarah says, might decide the Pennsylvania primary. And then we're going to have a chat about the Southern Baptist Convention abuse scandal if we have time.

If we don't, we're going to give that some room. don't. We're going to give that some room because that needs to be talked about and is a pretty serious matter, and we don't need to give it four minutes. So David, we had said we were going to record this podcast on Tuesday at 5 p.m., and shortly after 4 o'clock, there were reports out of Uvalde, Texas, of a shooting at an elementary school. The governor has confirmed that 14 students have been killed alongside their teacher. Customs and Border Patrol agents rushed to the scene during the shooting. One of them has been shot in the head as well, but is listed in stable condition. We obviously do not know much about what's happened and why.

But David, we normally try to keep this as a pretty upbeat podcast. Yeah. And, um, and I want to do that even when we're talking about something as awful as this. Um, but it has just happened.

We're still processing it. I had just bought Nate his first backpack and, um, just packed it upstairs with his little lunchbox. Yeah. I mean, you just can't comprehend somebody doing this. somebody doing this. It's just, it's impossible to think about and get in the mind of some, somebody who would do this. Um, and we don't know much of anything as we're recording this. We don't know who the shooter was. Uh, we don't know why the shooter did it. Uh, we don't know who the shooter was. We don't know why the shooter did it. We don't know what kind of a weapon, aside from a gun,

what kind of gun that he was armed with. There's just a lot. There's just a lot we don't know, other than this has happened again. It's another elementary school. Ten years. It'll be ten years in December since Sandy Hook. And, you know, this is a legal podcast and there's a lot of people, Sarah, who turn to the law in a moment like this and say, what can the law do?

What can the law do? How can the law protect us from this horror? And I recorded a podcast with my friend, Steven Gutowski, who writes for us at the dispatch, super smart guy, has a second amendment site, probably the smartest Second Amendment writer out there. And we had a long talk about, and kind of a back and forth about something called red flag laws, or extreme risk protection orders, or they go by many names. And before when we were in the green room, before we started talking, I said, I want to talk about this. And there's a reason why I wanted to talk about red flag laws in this context. And that's because in almost every mass shooting that takes, that has taken place and certainly every significant shooting at a school that has taken place, and certainly every significant shooting at a school that has taken place, a red flag law, if passed and enforced, could have made a difference.

And why do I say this? Governor Doug Ducey of Arizona, after the Parkland shooting, commissioned a report about how to protect Arizona schoolchildren and what are the legal measures that could protect Arizona schoolchildren. And he went through every single significant school shooting that has occurred in the United States since Columbine, from Columbine forward. And the report mapped out the details, and then it mapped out the different measures that the state suggested. And one of the measures was something called a severe threat order of protection. That's another word for a red flag law. order of protection, if it had existed and been enforced at each one of these states from Virginia to Connecticut, to Florida, to Colorado, to Oregon, where a significant school shooting happened,

it could have stopped the shooter before he shot. And so that's why I wanted to talk about it. Because I know after everyone expresses, you know, the grief that you just expressed, Sarah, people say, what can we do? And, and so that's why I wanted to talk about those briefly and kind of walk through what they are. And, and here's what they are in, in brief. Right now, the law has a big gaping hole in who can possess a gun, who can possess a gun. It says if you're a felon or if you've been convicted of a crime of domestic violence, you cannot own a gun. If you've been adjudicated mentally unfit in some particular way, you cannot own a gun. But in there is a group of people who are exhibiting, say, suicidal ideation, mental distress of some kind, threatening conduct that

doesn't rise to the level of a criminal threat. And if I were to ask you, Tamar, in a huge yawning gap of ignorance as to how do you get someone adjudicated to be sort of in a state of mental distress, nobody knows how to do that. And so what you have are circumstances where, and we don't know this about this shooter. We know this about every recent mass school shooter. You have a situation where you have people who express violent ideas and they retain weapons. and they retain weapons. And what a red flag order, what a red flag law does is essentially say, if I can, if I can come forward and say, if I'm a member of the police or I'm a principal or I'm a teacher or I'm a family member, and I say that Johnny or Jimmy or whoever is engaging in suicidal ideation has talked, mused about shooting up the school, then I can get an order from a court where police can seize their weapons and hold their weapons

for a period of time while the person gets help. Now there's due process, there's burdens of proof, but they can hold a person's weapons, prevent a person from purchasing weapons while that risk protection order is in place. And it's for those people who fall in the gap between they're a felon in possession versus a person who has been adjudicated mentally unfit. And it kind of closes that loophole. And it's based on people who exhibit troubling behavior. So that's something that a number of states have passed. There was one in New York that wasn't used with the Buffalo shooter, even though it expressed

violent thoughts towards a school. And I don't know why that wasn't used. That was a failure of the system. That's why I say passed and enforced. But I just want to float that out there again. I floated it out after every mass shooting. I'm probably going to change the way I write my newsletter today to talk about that. I've just said it again and again, and I think it is a critical tool, I think, that law enforcement needs that's tied to behavior that doesn't burden the Second Amendment rights of law-abiding citizens. So I want to talk a little bit about what I think is part of also missing in the political conversation. So first of all, I think I support a lot more gun-lim control measures than you probably do, both from a

policy standpoint, but also from a originalist understanding of the Second Amendment. And we're going to talk about the way that one looks at the Second Amendment here in a second when we talk about this 11th Circuit case. But the history and tradition of the Second Amendment, there were limits on who could possess guns. And I also think it's just tough when the types of things that we're talking about now, and I know this is up for debate and I get it, I don't think the equivalent existed then. So I think when we're talking about large capacity magazines, for instance, I think under even an originalist look at the Second Amendment, that is constitutional to ban large capacity magazines.

But I say all that as a preface, actually, to what I'm about to say, which is, but I don't think a lot of these things will work to prevent what has happened. And I want to explain why, because there's three buckets here. One, people who lawfully own lawful guns. There's a lot of those. Two, people with lawful guns who are illegally possessing those guns. And three, unlawful guns. They're not registered correctly, ghost guns, that type of group. We have laws preventing both of those second two categories, and yet we have tons of those on the street, both the illegal people and the illegal guns. people and the illegal guns. More gun laws, to me, cannot be all that effective if we're not,

if the only group we were left with was bucket one, a whole lot of legal people owning legal guns and they're going around shooting up elementary schools and grocery stores, I would feel very differently about how effective I think those measures that, again, I both support policy-wise and constitutionally, how effective I think they would be at preventing this. And look, I also, at my time in the Department of Justice, prosecuting people who were illegally possessing guns or possessed illegal guns was a top priority, and our U.S. or possessed illegal guns was a top priority and our U.S. attorneys went after it. But there's only so many AUSAs in the country. There's only so many prosecutors in the country and there's a whole ton in bucket two and three. So A, that's one problem with just the effectiveness of various laws that people consider. And again, I want to repeat, laws that by and large I probably

support. More background checks to prevent the illegal people. Again, high-capacity magazines on the illegal gun side. I'm all for it. Not sure, though, unless we're going to really increase that prosecution side and how much money we spend going after people, felons in possessions of guns. Again, these ghost guns, we could spend a whole lot more doing that. And then I think more laws could be really effective. Next though, David, another reason that we then don't even have the things that are constitutional, like background checks. That's not even a debate constitutionally.

80% of Americans support it. And here we are with jack shit having happened. Why? I think there's a broader conversation and one that actually we're going to talk to two thoughtful scholars about next week on the Dispatch podcast. Primary reform, David. And it's a little off topic, but I'm just going to spend a hot second talking about it because partisan primaries are not the way it always was in this country. It's a reform of the progressive era, the reform era of 100, 120 years ago. We've experimented with it, and I think the experiment has failed. years ago. We've experimented with it, and I think the experiment has failed.

So what you end up with is this very skewed incentive system because of partisan primaries. And there's actually a law, a little political science law, that talks about how once you get into a general election, and we all know this intuitively, you don't need to be told about a law, that there's an equilibrium that happens where the two parties push out any third parties. They will gobble up those voters in the middle so that even if a third party pops up momentarily, they will disappear by the next election. And that doesn't happen in primaries. There's some interesting literature about that. And again, we will talk about it at length with two experts next week on the Dispatch Podcast. But I say all this because Alaska is actually doing something interesting. And this goes to a broader point I have, David.

If you care about climate change, you should want to lose the Clean Power Plan case at the Supreme Court because it might actually force Congress to do something about it. If you actually care about gun policy, quit trying to pass gun control measures and instead pass primary measures. Alaska has moved to a nonpartisan primary where everyone, it's a full cattle call. So everyone can vote in the same primary and every candidate runs in the same primary. The top four vote getters from that primary moved to the general election. So when you show up in November, you're going to see four names on your ballot and you rank choice vote those four names. So the person who actually holds office in the end is the one that has had the highest amount of preference for every voter

in their district or state. Not only do I think this will change who wins office, I think it'll change who runs for office in the first place. And it sure as hell is going to change their incentives once they're in office, because instead of preventing primaries from their right or left flank, depending on which party you're in, and instead of catering to the only people who show up to a partisan primary, and even then only needing 30% of them to vote for you, unless you're in one of the seven runoff states in the country, waiting 30% of them to vote for you, unless you're in one of the seven runoff states in the country. That's the incentives that these people have now. And that's why we don't have background checks.

That's why we don't even have legislation to talk about this, because nobody thinks it will get done. And I get it. The Republican Party bears more blame than the Democratic Party for this. Maybe. Yeah, I even agree with that. Sure. But it's hardly the point anymore, David. The whole system has failed here repeatedly. There are 14 children dead today. There were 13 people dead at a grocery store last week. There were 20 children dead 10 years ago. Everyone who's like, oh my God, this is unimaginable. No, it's not. We've imagined it over and over again at high schools, at grocery stores, at Walmart parking lots, whether it's race-based, religion-based at a synagogue, politically-based at a congressional baseball game. The motives are no longer interesting. So I want to back up and go back to your buckets analysis and do a

different buckets analysis. And I probably should have started like this to better make my case. Okay. If you're looking at, and the reason why- Oh, and Just to be clear, David, I love your red flag stuff. I'm all in favor of it. I have a big red flag with your red flag analysis on it that I will be waving. So I want to be clear that nothing I said was meant to diminish the importance of your point. I just thought it was so well made. It was obvious. It's funny because when I've made the red flag point, a lot of very Second Amendment favorable people have gravitated towards it, and then they get yanked back by the NRA. But interestingly, right after the Parkland shooting, the NRA came out for red flag laws until their base yanked them back. Oh, the NRA has been for all sorts of stuff before they

were against it, including things that were anti-second amendment. And then, I mean, it's all that is an organization whose opinion I don't value at all, just in terms of consistency or policy or politics. But just one more thing, David, it's worth mentioning. I grew up in a house with a gun because we lived, you know, really my mom bought it for the armadillos. Let's be honest. They were in her azalea bushes. That's what it was for. But it's worth mentioning, like I grew up where if you called 911, it was going to be a while. And there were animals, lots of them, most of them pretty okay. The copperheads and the cotton mouths were a problem, but really that was more shovel-based remedy than gun-based. But I just say all that from a cultural perspective for those

listening who are like, she doesn't get it. My kindergarten boyfriend had several shotguns. Stephen Harwood, if you're listening, hey buddy, miss ya. Stephen Harwood, if you're listening, hey, buddy, miss ya. So, you know, I think I've mentioned this. I mean, we, on the podcast, I mean, we have guns in our house. One of the reasons we have guns in the house, well, one, I've always grown up with, there's always a gun in the house when I was growing up, but we have guns in the house. One of the reasons why we have guns in the house is that we've had threats off and on for many years. But here are the three buckets I want to talk about. And this is how we the normal, whatever the normal level of crime is in the U.S.

And these are people who, many of them, a huge percentage of them, both unlawfully obtain their weapon and or unlawfully possess it. In other words, they got it through a straw purchase. They got it in a way that was unlawful. They're a felon in possession. Lots of the street crime is people who shouldn't have the gun in the first place. They're walking around breaking the law before they even open fire with the weapon. And so that's where, like your DOJ, Sarah, aggressive prosecution of gun crimes, really important, really important because we've sadly been lax. We've been sadly lax in punishing straw purchases and things like that. But then there's the second part, which is bigger than street violence, which is suicide. And much bigger than street violence is suicide. And one of the problems there is gun control doesn't do much about anything. It doesn't

do anything really with suicide because it doesn't matter what capacity magazine it is. It doesn't matter if you have an assault weapon versus a simple pistol. Right there is a much more you're aiming in on to prevent that is your mental health world. And then the third bucket is a very small percentage of overall deaths, but a very traumatic national problem, and that's the mass shootings. And the mass shootings, it's a lot more complicated. We don't even have a definition we can all agree on on the mass shootings, by the way, because sometimes we count what I think a normal person would consider street violence, where multiple people are killed, drive-by shootings, for instance, as a mass shooting

because four people are shot or three people are killed. So I just want to flag that's a definitional term that we don't actually have a great definition for, but I feel like it's one of those, you know it when you see it and we can name them. We know them. I think there's a better phrase. Spree killing is a phrase I've heard, which essentially means it's not a one-off. I'm trying, you're trying to kill as many people as you can, but however you want to phrase it, that is a lot more, if you go back and you look at the history of mass shooters, you're going to see a lot of them had guns lawfully. You're going to see that some of them had them unlawfully, but you're going to see again and again and again that they were radiating these warning signs. And nobody could do anything about it. Nobody had the ability to do anything about it.

This ad for Fizz is only 25 seconds long, but we had to pay for 30. Those leftover five seconds shouldn't just disappear, right? It's kind of like what happens to your unused mobile data at the end of each month, except at Fizz, your unused data from the end of the month rolls over, so you can use it the next month. Hey, you paid for it, so keep it. Try the other side. Get started at fizz.ca. If you need some time to think it over, here's five seconds. Certain conditions apply. Details at phys.ca. Well, let's use that then to talk about a Second Amendment case out of the 11th Circuit. By the way, David Ladd, who we've talked about planning on this podcast with Original Jurisdiction, he usually names a judge of the week. He has not put out his newsletter yet today,

but I'm just going to go ahead and announce that the judge of the week is almost certainly Judge Kevin Newsom on the 11th Circuit. Two of the cases we're going to talk about today were written by Judge Newsom, both the social media case out of the 11th Circuit and this Second Amendment case. Long opinions, unanimous for both panels, Judge Newsom concurring with himself in the Second Circuit opinion. So three opinions from Judge Newsom in two cases that we'll be talking about on this podcast. Definitely Judge of the Week. For those curious about his background, he was the Solicitor General of Alabama, JD from Harvard Law School, BA from Samford University in Alabama. He has a Donald Trump appointee assumed office in 2017. The Second Circuit case is fascinating, David, because it's about an illegal alien possessing a gun. And I think Judge Newsom walks through this really well. The conclusion is that while illegal aliens almost certainly do

get some constitutional rights, but the issue here is whether they can be excluded statutorily from owning a gun without that being unconstitutional. And he walks through the history of showing just what you've already said, David. Felons can be excluding from owning guns. Mentally ill people who've been adjudicated mentally ill can be excluded from owning guns. And plenty of history at the time of the founding showed that lots of people were excluded from owning guns. Obviously, people who were held as slaves excluded from owning guns. But even white people were excluded from owning guns if they had foreign ties. They were deemed a potential threat, so they couldn't own guns as well.

In this case, the guy was an illegal alien from Mexico, lived in the United States for more than 20 years before he was deported. In 2019, he brandished a gun outside a taco stand in Tampa. He was arrested. Grand jury charged him with one count of possession of a firearm by an illegal alien. It's just fascinating that this case hasn't come up before, David, that someone challenges the constitutionality of that. It's a well-done opinion. It's an interesting opinion. I think most people sort of agree with the obviousness of the outcome. But just worth mentioning when we think about the constitutional rights of illegal aliens,

because it's frankly more about that than the Second Amendment. He says, we begin with the threshold question. Who are the people mentioned in the Second Amendment? The Fourth Amendment says people free against unreasonable searches and seizures. There's plenty of mentions. The Tenth Amendment, the Ninth Amendment, right? They all talk about the people. And so the Supreme Court has held that that means a national community. But they didn't say citizens. And so it's not necessarily limited to citizens. And as Judge Newsom mentions, there are certain illegal aliens that absolutely will have become part of the national community within that test. They have otherwise developed sufficient connection with this country to be considered part of that community. And as Judge Newsom says, are his two decades of residence

in Florida enough? What about the fact that he has consistently paid his taxes or that his employment has contributed to our economy or that he has a U.S.-born child? Does it matter that he isn't living with that child or that he hasn't filed a formal tax return? Happily, we needn't definitively decide whether Jimenez is among the people as a general matter. We can assume for the sake of our decision that he is and resolve this case more narrowly. The reason? We are concerned here specifically with the scope and application of the Second Amendment, which, as already explained, codified a pre-existing right. And therefore, if people were able to be excluded from that right, Congress could exclude illegal aliens from that right. End of story. But David, as I mentioned, Judge Newsom concurred with himself. This is becoming a little bit more of a frequent trend on the circuit courts

here's the beginning needless to say i concur in the majority opinion i write separately to comment briefly on one what i take to be the appropriate second amendment amendment framework and two this court's precedent or i think lack thereof regarding that framework. And three, what we might learn from that framework in thinking about how we operationalize and protect other Second Amendment rights. What has become in most circuits the framework for analyzing Second Amendment rights is a two-step process. One, you ask whether the restricted activity is protected by the Second Amendment in the first place. The question that was answered here, right? Illegal aliens were not protected within the Second Amendment. Congress could exclude them if they wanted to. And then second, you apply, quote, an appropriate level of scrutiny.

A whole lot has been made, and we're waiting for the Supreme Court to decide that New York gun case, David, about what that appropriate level of scrutiny is. But Judge Newsom's point is it don't matter because that second part of the test shouldn't exist. It's all in the first part of the test. If the restricted activity is protected by the Second Amendment in the first place. And he says that that second part elevates we the judges over we the people through an ill-defined balancing test. He also notes he thinks it is totally out of step with Supreme

Court precedent. And he says that in the 11th Circuit precedent that was cited, that in fact, that second part of the test is sort of necessarily dicta because the first part of the test is the only part that should count. But here, David, is the part that I thought you would find most interesting. He says, but now let's look at all those other constitutional rights. all those other constitutional rights. What, though, are we to do with the fact that the very sort of interest balancing that I and others decry in Second Amendment is de rigueur in cases arising under, to cite just one prominent example, the First Amendment. Free speech cases, for instance, are so chocked with different variations of means and tests that one sometimes forget what the constitutional text even says. As a refresher, he then lists the constitutional text. And he basically says we could do the same thing

in First Amendment doctrine. It's not just that this balancing test doctrine is exhausting, although it certainly is, he writes. It's that the doctrine is judge-empowering and, I fear, freedom-deluding. If we as judges conclude, as I've said we should, that the doctrine is judge-empowering and, I fear, freedom-deluding. If we as judges conclude, as I've said we should, that the Second Amendment rights shouldn't be casually balanced away by reference to manipulable means and balancing tests, we might need to start asking the bigger question. On what basis can we do exactly that when dealing with other equally fundamental rights? that when dealing with other equally fundamental rights. What say you, David? I think that's fascinating, although I have been thinking about the First Amendment and the Second Amendment slightly differently. Say why. So I've been thinking about it because I did a,

I actually did a Second Amendment debate for the first time in a long time at Boulder, at Colorado University. I think it's CU Boulder, not UC. At CU Boulder, at their Council for World Affairs recently. And I was thinking through New York State Rifle and Pistol again and kind of reliving New York State Rifle and Pistol. And then I also talked Second Amendment at the National Constitution Center when we were hanging out with Judge Sutton last week, and I started to think more about the First Amendment analogy as a helpful analogy going forward for right to carry in this sense, the time, place, and manner restriction. And this was something discussed during New York State Rifle and Pistol, that there is, we have now broadly accepted that you can have a very, very, very robust First Amendment with time, place,

and manner restrictions. So, and with some of these balancing tests that were decry, you know, that the concurrence decries. And I'm thinking, I've actually been thinking the First Amendment might be a good model for the Second Amendment, because overall, overall, the, overall, First Amendment jurisprudence, I think, does a pretty darn good job of living up to the text, history, and tradition of the First Amendment, even with the balancing and with time, place, and manner restrictions. And I've been thinking about that in the Second Amendment context. And I wonder how much the justices are thinking through that time, place, and manner context as they're talking about a robust Second Amendment jurisprudence, because that's not what

we have now. So I certainly think the justices are thinking through the tension between having a unique Second Amendment island surrounded by First, Fourth, Fifth, and Sixth Amendment balancing tests. I think it can go either way, although I think there is a way over time to collapse these two. Though I will tell you, here's my concern, that if you look at the history and tradition of the First Amendment, what you will find is deeply concerning. And I'm thinking, of course, of the First Sedition Act. The founders' understanding of the First Amendment is not one that I like or

share or think that we would be particularly well off living under. Although, again, I want to acknowledge that the Vermulis, the Vermulian thinkers, they point to this for why you can absolutely ban a lot of speech that we currently allow, blasphemy, et cetera. And they have a real historical point there, which is why we don't, I think, look to the history and tradition of the First Amendment the way that they want to with the Second Amendment.

But I'll tell you, it feels pretty intellectually inconsistent. Your time, place, and tradition of the First Amendment the way that they want to with the Second Amendment. But I'll tell you, it feels pretty intellectually inconsistent. Your time, place, and manner from the First Amendment onto the Second Amendment would fix that. But I think it is in its own way a version of this idea, get rid of the balancing test and instead think about, right? I mean, you don't think that time, place, manner restrictions are balancing tests, do you? think that time, place, matter restrictions are balancing tests, do you? No, no, no, no. It's not a balancing. I was using that as a launching pad more to talk about the First Amendment than specifically balancing tests. And that's why I start with text. So you and I have talked about this 18th century infallibility thesis that I just

blatantly disagree with, which is the notion that if you're going to interpret the constitution, whatever they did after the constitution in that founding generation did after that constitution was passed or ratified, then that is de facto fine. Like it's encompassed within the original public meaning. When the fact of the matter is the constitution was written, drafted, ratified, and a lot of people didn't know who was going to be running the place. And so a lot of these provisions are drafted, I think intentionally with the notion of diluting power, because the convention delegates were sort of thinking about how would we want the republic to be run, passive voice, as opposed to how do I want to run the republic, active voice. But David, once you get into that infallibility doctrine, I mean, it's a massive problem for originalism.

Let me put it this way. for originalism. Let me put it this way. Original public meaning as ratified, as when ratified, I think is a little bit different than when I'm running the place 10, 15 years later. I think it's pretty hard to parse those two because if the original public meaning was that members of Congress could pass the Sedition Act and the president could sign it 10, 15 years later. Like I take your point, but then we think 10, 15 years earlier, that's not what they had in mind. It's the same people in Congress who ratified it. All of them voted to ratify it. I'm trying, Sarah. I'm trying. Look, I don't think it's a shot to the heart. I just think it's a tension. And I think that

Judge Newsom points out an important tension as originalism tries to put its thumb on virgin territory, as he calls it, with the Second Amendment, that they've got then some problems with some of them other amendments. But we can leave it there and move on to Judge Newsom's other opinion. We've done two of them. Now we need to do the third in the second case. And this is, of course, the bombshell. The Florida social media decision came out on Monday afternoon. David, this was shocking for a few reasons. One, of course, we are still waiting for the Supreme Court to rule on the emergency petition from husband of the pod about the Texas social media bill. But remember, Florida was argued the week before that by Paul Clement. And usually circuit opinions take, I don't know, three to six months, roughly speaking. This came out a month later. And I will note, I don't think it's a coincidence that it came out that quickly with the Texas petition pending. I mean, I knew that really the Supreme Court couldn't get something out before Monday late afternoon.

And boy, they got this in right before. So we will never probably know whether the Supreme Court had something ready to go Monday. But I am not surprised now that we haven't heard from the Supreme Court. Husband of the Pod has, of course, filed a supplementary authority letter. You may wish to note the 11th Circuit opinion like they hadn't already seen it, but it'll certainly make Judge Newsom's opinion very relevant in whatever and whenever, at this point, we hear from the Supreme Court. Surprising no one, he, of course, finds that the vast majority of the Florida social media bill is unconstitutional. But David, I almost thought, first of all, it was unanimous. I

mentioned that. But also I thought the tone was well executed. It was a very polite version of, this is really obvious. I don't, huh, I'm confused why we're here. Yeah. Yeah. No, I had exactly the same thought because when I was reading it, what I felt like I was reading, and of course, what we were responding to were Florida's legal arguments. But Florida's legal arguments were something you see almost every day on Twitter, like all of the various sort of gymnastics that are used to try to justify how you can move the state into regulation of social media moderation in a way that would seem to be really contrary to an awful lot of precedent. And so there's been a lot of very creative argument, a lot of very creative

thinking. Everything from content moderation isn't actually expressive. So it doesn't warrant First Amendment scrutiny to a Facebook is a common carrier, even though it really is quite different in kind from every other common carrier that exists in the United States. Or the pruneyard argument that Facebook is like a mall. And the opinion just very patiently walks through each of these things and just flat out dismantles them. And in a way that also demonstrates a real understanding, I think, of the technologies, of what social media is, of what moderation is, of what a common carrier is. It's a good opinion in that you don't just learn. It's a good opinion in that it really teaches you something about the

underlying subject of the opinion itself. So I thought it was fascinating. Worth a quick footnote, cul-de-sac, about Judge Newsom just being a very talented writer. So back to his concurring to himself in the last opinion, that section on the different constitutional rights having different levels of scrutiny or different even ways of thinking about scrutiny it starts with. On then to the final point, which I'll confess is more of a bookmark for future reflection and an inquiry than anything else. And then in this opinion, I don't know why this line just tickled me. We begin with a primer. This is a case about social media platforms. If you're one of the millions of Americans who regularly use social media or can't remember a time before social media existed, feel free to skip ahead.

I love that. Here's, by the way, the money paragraph, the meat. We hold that it is substantially likely that social media companies, even the biggest ones, are private actors whose rights the First Amendment protects, that their so-called content moderation decisions constitute protected exercises of editorial judgment, and that the provisions of the new Florida law that restrict large platforms' ability to engage in content moderation unconstitutionally burden that prerogative. We further conclude that it is substantially likely that one of the law's particularly onerous disclosure provisions, which would require covered platforms to provide a thorough rationale for each and every content moderation decision they make, violates the First Amendment. Accordingly, we hold that the companies are

entitled to a preliminary injunction prohibiting enforcement of those provisions. Because we think it is unlikely that the law's remaining and far less burdensome disclosure provisions violate the First Amendment, we hold that the companies are not entitled to injunctive relief with that. Some things that aren't mentioned in that, David, and in some places explicitly, as in we are not going to reach X, the comments made by Governor DeSantis as to why they were passing this bill in the first place that would clearly raise a content neutral problem. I thought it was interesting that he didn't really use that in his analysis at all and says, we don't need to do that because there's all this other stuff. Certainly in other cases, and I'm thinking here of the Thomas

Jefferson race-based admissions, or even the Masterpiece Cake Shop case, if you show animus, that can be used against you in a court of law, so to speak. Two, the large platform part of this law in and of itself is an interesting content-based problem to say that Facebook can't moderate, but that Getter can based solely on their size. Imagine putting that in, assume that it's First Amendment protected, and then imagine that restriction being put on news organizations. So if you're a large news organization that reaches a lot of people, you have to give equal time in your op-ed pages to the Nazis and the Holocaust remembrance groups. But if you're a smaller newspaper, a local newspaper perhaps, you don't have to. a smaller newspaper, you know, a local newspaper, perhaps you don't have to, um, that would definitely be content-based I think in that, um, in that, or at least could be content-based.

So really smart opinion. I would be inclined, David, for us not to walk through all of the cases this time, because I think he does a really good job, but I think we're going to want to use his way of walking through the cases when and if we hear from the Supreme Court on the Texas bill. So put a footnote in that, but don't worry, we are going to do a nice little Judge Newsom walkthrough, especially on that Rumsfeld v. Fair case. That's about military recruiters on law school campuses, and it has had a distorting effect on the First Amendment. So we definitely want to spend some time on that, but let's put a pin in it, you think? Yeah, except I'm just itching to read something about common carriers. Yeah, for sure.

I'm just itching. Because this is the one question that I get all across everywhere I go from lawyers, from non-lawyers, aren't these common carriers? Isn't this like, could AT&T decide they're not going to complete my call unless I agree not to engage in hate speech? All of these analogies, and we were having a conversation with this, a conversation, Sarah, not long ago with somebody who was talking about the common carrier analogy. And I just said, they're not, by no normal definition, are they common carriers?

If you look at a table and you say, I want to rename this table a duck, is the table now a duck? No, these are words with meaning, right? We know what a duck is. We know what a duck is. We know what a table is. We know what a common carrier is, and they're not Facebook or Instagram. And I thought that this was a very interesting way. The judge explained this very well.

It says social media platforms have never acted like common carriers. In the communication context, common carriers are entities that make a public offering to provide communications facilities whereby all members of the public who choose to employ such facilities may communicate or transmit intelligence of their own design and choosing. They don't make individualized decisions in particular cases, whether and on what terms to deal. And he says, while it's true that social media platforms generally hold themselves open to all members of the public, they require users as a precondition of access to accept their terms of

service and abide by their community standards. In other words, Facebook is open to every individual if, but only if, she agrees not to transmit content that violates the company's rules. So this is not a common carrier context. And it's interesting, you know, if you go back to like the parade analogy that we've talked about before, Facebook is like, imagine that you, Facebook is a public parade and you're allowed to join the parade. Anybody can join the parade so long as you sign an agreement that you're not going to engage in certain kinds of profession, certain kinds of expression. No one would say that you've just created an open forum. They would say, no, we've obviously limited this forum. And so it's not a common carrier. It's just,

and if you're going to call it a common carrier, you have redefined what a common carrier is, just completely redefined it. And I think that's an important thing to note. 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,

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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. And speaking of calling a table a duck, that reminds me of what's going on with our Pennsylvania recount case, President Trump telling his endorsed candidate to declare victory and move on. That is not the way it works in our elections. So David, I just wanted to spend a few minutes. We have a third circuit opinion that came out on Friday and a lawsuit filed by the McCormick

campaign related to that just Monday of this week. So recounts are just that, David. You literally just recount the same ballots. In Pennsylvania law, in fact, however the county, the 67 counties counted it the first time, you have to count it a different way the second time. That's the big difference in a recount. So if you presumably used a machine the first time, you either can use a different machine or a hand count during a recount. That's it. That's a recount. However, I think most people think about contested ballots. That's not a recount. That's a first count. And things that happen with contested ballots often are provisional ballots. You came in in person, but you came to the wrong precinct or your name wasn't right.

person, but you came to the wrong precinct or your name wasn't right. That's happening less and less is my impression out in the field. What is happening more and more are the contested ballots around absentee ballots, mail-in ballots. All right. So let's do a little Pennsylvania law primer. Under Pennsylvania law, a mail-in ballot has to have the security envelope intact. And the outside of that security envelope that the ballot is in, right, there's twoin ballot has to have the security envelope intact. And the outside of that security envelope that the ballot is in, right, there's two envelopes, ballot in the security envelope, security envelope in the outer envelope. So the security envelope has to bear the voter's signature and the date. So in 2021, there was a lawsuit about a judicial election where they challenged the ballots that had the signature of the voter, but not the date. And the Third Circuit on Friday held that the date

was immaterial as long as there was evidence that the ballot had been received on time. So it had a timestamp from the post office or the election official who received it that proved that it was received within the correct time. It just didn't have the voters handwriting with the date on it. Their point being that the voter was eligible to vote. It doesn't go to their eligibility and it doesn't go to whether the vote is eligible because we know that it was received on time. go to whether the vote is eligible because we know that it was received on time. And that makes it an immaterial requirement under state law, which makes it a violation of the Civil Rights Act to disenfranchise someone for an immaterial reason. You have to kind of walk through it, but actually, I'm pretty persuaded. So was the McCormick team. In less than 90 minutes, they had sent a letter to all 67 counties saying,

aha, now for any of those ballots that were discarded this time, you need to now go and get them back and count them. Some counties said yes, some counties didn't answer. And so they filed a lawsuit to have a judge say that they must count those ballots in light of the Third Circuit opinion, which again applied to a different race from 2021. A few things about this, David. One, interesting timing, Third Circuit. Really? The election was held on Tuesday. You couldn't get this out the Friday before the election?

And then the election's held. You know it's going to a recount and you're like, yeah, Friday, Friday afternoon's a good time to do this. What was going through their minds? And David, I've talked about what makes a recount successful. Be ahead. I said, you should be ahead in the vote. That's always helpful. Not dispositive, but helpful. In this case, the Oz team has a shrinking, but still in the lead, just under 1,000 votes now. starting from election night forward, because the ballots do move around and there's various county, local, and state rules about how the ballots move from that point forward from the precincts to usually a county center where ballots are counted and kept for potential recounts, et cetera. You just want, you want to make sure someone doesn't, and this happens,

accidentally leave a bundle of ballots in their trunk or drive to the bar on their way and go ahead and have a drink and then forget and go home. I mean, these things actually do happen from time to time. So being prepared, having all of your motions that you can pre-drafted. And three, I noted that hire the good lawyers, not the lawyers who agree most with your candidate, who love your candidate, who've donated the most to your candidate. As Donald Trump, I think, learned, those are not necessarily your best lawyers in an election contest or a recount situation. Hire good election lawyers who can make credible arguments and not make frivolous arguments that undermine

your credibility when you do have a credible argument. We don't have everything yet that's going to happen legally in the Oz-McCormick fight, but I will tell you based on the names that we're seeing, Team McCormick is losing number one, right? They didn't go into the recount ahead. They are definitely winning on number two. They were far more prepared, had a lot more volunteers, as best I can tell, volunteer lawyers and volunteers on that night at all of the places they needed them. And three, the fact that Concevoy McCarthy had a letter out, again, less than 90 minutes later to all the counties on Friday shows me that they certainly hired the right lawyers. I expect, so the Oz team hired the same lawyers as represented the losing side in that

Third Circuit case, which is helpful because that legal team can now file to the Supreme Court knowing that they're helping their current client and their other current client, the Oz team. So you'll have that Third Circuit case potentially go to the Supreme Court. You could also potentially even have this McCormick-filed lawsuit on Monday move very quickly, given that it's going to control quite a... Well, it's not that it will control quite a few ballots, but it might control the winning ballots, if you will. So it's 1.3 million ballots total, 90,000 are mail-in ballots. We don't yet have a great number of how many of those had the date deficiency. But for instance, in Philadelphia, the number was around, I believe, 2,500. Now, only 100 of those were Republican ballots, but you have to remember Philadelphia County is a heavily Democratic county.

I think this could be a difference maker. If you work out the math, McCormick is seven to five on mail-in ballots. So you need roughly 6,000 date deficient ballots to make up a thousand votes. Wow. Amazing. I mean, the timing, the timing of that case, unbelievable. It's wild. And you know, the other thing thing sarah this is completely unrelated to the law but it is remarkable how many close elections we're having yeah especially because we don't consider ourselves particularly um people are so polarized but they're so evenly polarized. That's what's surprising. Well, and then even polarized, evenly polarized in this race, even within the Republican party. Yep. It's remarkable. It's absolutely remarkable. And yeah, I'm watching that. I'm very interested in it. But I'm also very interested in, and this podcast is going to come out after Dispatch Live,

but you're going to be on Dispatch Live. But I'm just warning you now, I'm going to ask you about the likely Brian Kemp smashing of David Perdue. Yeah, I mean, right? It can only be as relevant as JD Vance winning the Ohio primary by 10 points is. There's reasons, but Donald Trump, mixed bag, ties in Pennsylvania, wins by 10 in Ohio, and I expect him to lose by about 10 in Georgia. Oh, you think as low as 10? I was thinking it might be 20 to 25.

Oh, sorry. I meant minimum of 10. Okay. Yeah. At some point, like after 10, it means that the race got away from you. It's not necessarily even a reflection of much after that, if that makes sense. Like 10 means it wasn't close. They pulled out money a couple of weeks ago, the outside group. So it got away from them. It's over. Yeah. Yeah. So I feel like I'm going to have a more optimistic from a getting past Trump take on Georgia than you are. Oh, for sure. Because I'm not. So if you have any optimistic take, but look, we're going to have Alabama to look at. We're going to have Texas, the Texas attorney general race. And by the way, that Democratic race down in San Antonio,

the Cuellar Cisneros race, their runoff as well. So lots of interesting stuff. All right. Well, we did not get to the Southern Baptist Convention story. It's a story I think that we really do need to spend some time on because there is an inescapable legal component to this, both in the law and the behavior of lawyers and how it enabled some really grotesque abuse and prevented, and the way in which lawyers' legal arguments were used to try to insulate the Southern Baptist Convention from legal accountability meant that they also didn't exercise any moral accountability. And that's going to be worth parsing. So stay tuned or tune in next, tune in on Thursday, because we got stuff to cover.

And a fourth circuit opinion on insurrectionists. That'll be fun. Yep. Oh, yep. Good times. All right. Well, thank you everyone for listening

and please go rate us on Apple Podcasts and where you get your podcasts. Please go subscribe wherever you listen to your podcasts and please check out thedispatch.com.