Advisory Opinions - Offensive T-Shirts Get Their Day in Court

Episode Date: June 11, 2024

Sarah and David discuss the laws of war in response to Israel’s successful hostage rescue operation in Gaza before turning to the latest First Amendment drama from the 1st Circuit. The Agenda: —Laws of war and the Israeli hostage rescue operation —Materially disruptive speech and t-shirts —Health check on the Constitution —Far-right says freedoms are under attack Show Notes: —David’s critique of Israel in the NYT —Angry cheerleader case —Justice Brennan opinion in 1970s book banning case —Tinker v. Des Moines Learn more about your ad choices. Visit megaphone.fm/adchoices

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I am your guest host today, David French. And the reason that I'm guest hosting is that your main host, Sarah Isger, who's joining us today as interim guest. Yes, special guest of the pod. Special guest of the pod. He didn't prepare as much as I did today. We're flipping our roles for the podcast.

So I'm pleading four-year-old birthday party. Well, you know that that works every time, Sarah. That works every time. How many four-year-olds did you have running around the house? Ten. Ten four-year-olds. You deserve about four days off. Yeah.

After that, five days off. Thank you. Yeah. Was the damage to the house greater or less than six figures? We kept them outside. So that was a huge help. My son has 28 tattoos. You know, there's like their Paw Patrol,

their Blaze, their fire truck related, 28 of them all over his person. That's fantastic. So what tattoo artist agreed to come to your party and tattoo a four-year-old? No, they're like those stickers, David. Oh, okay. They're like water tattoos.

Although I have to say his grandparents were like not amused by that actually. I think they were a little upset that we let him get temporary tattoos. Oh, that's fantastic. It's all prep. But he's full sleeve tats. Oh, that's fantastic. Baseball sleeve tats. Oh, that's fantastic. I mean, Nancy just performed her story

that she told at the Moth for at a local place in Nashville called the Blue Room, which is this super, super cool venue. And it just reaffirmed what I thought before, that if you're young and you're moving to Nashville, they don't let you in the city limits unless you have a tattoo sleeve. The whole generational difference on tattoos

is increasingly fascinating. I have no tattoos, you have no tattoos, but it's becoming very rare for the younger generation not to have any. Yeah, no, I know, that is very interesting, but we are not talking tattoos today. We actually have an agenda. We're gonna talk about the Israeli hostage rescue

and the argument that broke out online about the laws of war. We're gonna talk about a very unusual Sunday opinion from the First Circuit. It came out yesterday and it's a student free speech case involving a student who wears a there are two genders t-shirt or there are censored genders t-shirt. In other words, where he taped over the two genders indicating that his message was censored. And it's an interesting ride. So

we're gonna walk down that case and then we're gonna end up with a checkup on the Constitution. There has been a very interesting debate breaking out on the far right. We've seen this on the far left with some aspects, for example, of critical legal theory that really call into question the Constitution itself. We're now seeing this, some of it on the far right, but the argument on the far right is

that the Constitution is broken. America is not under constitutional government as envisioned by the founders any longer. And we're going to take a closer look at that. And we're going to do it in a systematic way. We're going to take the health, we're're gonna do a health check of all the articles of the, well, articles one, two, and three. That's legislature, presidency, judiciary, and then we're gonna look at the Bill of Rights,

and we're gonna look at the Civil War amendments, and we're gonna do a checkup, and it's gonna be fun. So, Sarah, let's start by talking about the rescue. I was kinda off social media most of the day yesterday, but I did, and over the weekend, but the news of the hostage rescue was just this incredible burst of good news early in the day, but then a backlash set in, a backlash set in.

And I don't know, did you see this setting in in real time? then a backlash set in, a backlash set in. And I don't know, did you see this setting in in real time? I was only aware of it much later. No, I was sort of watching it roll downhill. Yeah, and it began, yay, four hostages rescued, and then turned into, but lots of Palestinians were killed in the rescue attempt. And then you began to get all of this commentary about Israeli war crimes, et cetera.

And I just want to clarify a few things here. One is, let's just go back, and I posted this on threads and Sarah, I saw you reposted it on Twitter. There's some- As your work spouse, I feel very able to, and maybe it's even my duty, to take your threads posts that are particularly good and just put them on Twitter under my name.

And I got a lot of engagement. I noticed that. I noticed that not all of it was pleasant. But some was. Some was, yeah, absolutely. But some basic principles here. First, obviously when Hamas attacked on October 7th and killed civilians and took hostages,

it committed war crimes. Obviously every day that Hamas retains the hostages, it commits a new war crime. Also when it shelters the hostages in civilian locations with civilians, it creates a war crime. Also, when it shelters the hostages in civilian locations with civilians, it creates a war crime. And oh, by the way, or it commits a war crime. And oh, by the way, when it fights in the streets of Gaza, wearing civilian clothes to attack Israeli soldiers who are trying to rescue Hamas operatives, it also commits war crimes. And so into this war crime rich environment,

here comes the Israeli defense forces to rescue these hostages. And as the story, we're gonna learn a lot more about this, Sarah, this is one of these fog of war type situations where you're getting the early and preliminary reports. But one of the preliminary reports is that one of the vehicles that was evacuating three

of the four hostages came under a great degree of hostile fire. And so Israel was forced to deploy overwhelming force to extricate the hostages and their rescuers from this extremely dangerous and perilous situation. And it was quite frankly gobsbsmacking to me Sarah, that we saw the response that we did pivot so immediately to look at what Israel did rescuing these hostages in this built up civilian area and look at how many civilians died.

And my question is, my question is, what is Israel supposed to do here? Are they supposed to acquiesce to the war crimes of Hamas and leave their hostages in the hands of Hamas because rescuing the hostages will cause civilian casualties because of Hamas sheltering in that civilian environment. Now, that's not to say that every given Israeli strike in any given moment is justified, but the overall scenario here and the way in which people leapt immediately to this big Palestinian death toll had to be the result of war crimes was remarkable and one another element of this double standard that we see applied in this conflict that's and look and as listeners know I'm not a Israel can

do no wrong guy. I have written a piece of the Times talking about even though I support Israel treating Hamas the way we treated ISIS. I've got some issues with the way Israel has conducted the war. But this one, Sarah, this one was really remarkable, the way that people immediately jumped to the casualty count means Israel committed war crimes and rescuing hostages. Okay, but Hamas commits war crime does not mean Israel can commit war crime.

True. What I hear you saying is that it changes the rules of engagement for Israel though, so that things that would potentially be war crimes if Israel did them in different situations aren't, maybe I'm phrasing that wrong, but basically by Hamas using civilian areas for their operations, including putting hostages in civilian homes. Right. Whether those civilians were amenable to that or not, let's say they're not. Right. They're being forced at gunpoint to hold hostages in their homes.

That is different than if Israel went in and executed civilians in their homes because they're in Gaza. By virtue of the hostages being there, you're saying it is not a war crime for Israel to go in and shoot some of those family members to rescue the hostages. Right. So if you have hostages in a location and you are doing a dynamic entry to retrieve the hostages, then there is a snap judgment that is made. So first you're entitled to do the dynamic entry. That's absolutely unequivocally true that you can do that dynamic entry to come in and take the hostages. Can we stop right there for just a second?

Sure. What if the hostages turned out not to be there? What if you were acting on the best intel that you had? Maybe it wasn't very good though, and the hostages aren't in there. How does that change the rules? It doesn't mean that the dynamic entry is unlawful. There are elements of this where it just becomes a tragic mistake. But here's the thing, Sarah, under the legal construct, the fact that Hamas shelters its hostages in civilian areas makes those mistakes much more likely

if one were to occur, much more likely. And that's on Hamas. Okay. So they're allowed to go in? Yes, absolutely. And then once you're in, it's a series of snap judgments. Now, if IDF soldiers were to take the family, put them in a room, remove the hostages and execute the family, that would be a war crime. But if you're doing a dynamic entry and you have snap judgments with people who are emerging from rooms and hallways and things like that, that's sadly what war is. And so there are gonna be snap judgments made

that will, where people will use lethal force in those environments. And that happened by the way. Okay, so even if everyone is unarmed. Even if people are unarmed. Like the whole house is unarmed. Again, you would have to know the circumstances of the shoot, but whether they're armed or unarmed

is not dispositive in that. So for example, when we went in to kill Bin Laden, which was an assassination, which was entirely justified lawfully, there were also other people in the house that were also killed, right? And so this is something that occurs when you have this dynamic entry in a wartime environment.

And the other thing is, let's talk about the exfiltration. You have the infiltration and then you have the exfiltration and the way the stories go now, and by the way, just in caveat, fog of war, new information is gonna emerge. So by the time you hear this, there might be even more additional information, but let's put it this way.

You infiltrate and you're exfiltrating and you come under a lot of hostile fire, that is going to be, mean you're going to get a chance to respond. And not only are you going to get a chance to respond, you're going to be able to call in airstrikes, call in artillery fire missions, things that provide you with sufficient covering fire

to extricate you. So it would be a war crime if you, before anything, you just started bombing the market, just bombed the market to clear the way, and then go in, get them come out. But if you are leaving and you come under heavy fire, you're able, you have to be able to respond, and you are able to respond.

And this raises a really important point, Sarah. I've heard a number of very smart people say things like, when they read about an airstrike that killed, say 10 or 15 Hamas fighters, but also killed civilians, they say, why can't you go and precisely attack those people there as opposed to using these 500 pound bombs that have a blast radius, et cetera.

Well, this is actually an example of why it's so hard to go into a hostile territory, execute a strike, and leave with minimal casualties. When you actually get on the ground, it is often a lot more chaotic and bloody than when you strike from the air, as horrible as it is when you strike from the air. But in this circumstance, you can't,

you had to go get the hostages. And this is what happens in urban combat. It gets chaotic. It gets bloody when your enemy is embedded in the civilian population. And this is one last thing I want to say, Sarah. Everyone talks about civilian casualties as if they're all the IDF, but here's what we know from years and years of urban combat in Iraq and Syria and other

places, Afghanistan, it's that when we engage the enemy, they are far less disciplined in their fire than we are. Far less. We even had a term for it, it's like we called it the death blossom. They would open up in all directions indiscriminately. And in this circumstance, I would guarantee, I would fall out of my chair in shock

if a lot of the civilian casualties weren't the result of indiscriminate Hamas fire, not just Israeli fire, because they engage and open up with everything that they have. And so that's why this gets so chaotic. So I think maybe you could just do a quick run through of without knowing the facts, what are the war crimes that could occur on Israel's side, given what we know on the ground, right? Hamas is holding civilians hostage. Sorry, yeah, Hamas is obviously holding civilians hostage. Holding civilians hostage, though,

within civilian areas and civilian families, they have mixed intel about where they're being held, all of the things we sort of know for a fact, because I feel like there's a lot of things we don't know for a fact. We don't know how many civilians were killed. We know one IDF soldier was killed. There's been reports that other hostages were killed during the operation as a result, but we don't know whether that was Hamas then executing hostages or that hostages were shot by IDF or by Hamas fire on accident. We don't know any of that stuff. So set all of that aside, just from what we actually know. Without knowing those facts, you've said that, for instance, if Israel had gotten the hostages secured, moved all the family members into another room and

executed them all, that would be a war crime. Right. Can you give other examples of war crimes that Israel could commit in those circumstances? Yeah, it's actually harder to articulate them than you might think, because once you have an active firefight, in other words, once you have incoming RPGs, mortar rounds, small arms fire, other forms of rockets, it's extremely chaotic. Control tends to devolve to the on-scene commanders

to direct the fire, at least that's how the way we do it in the United States military. And it's a chaotic scene and people, you do not have a situation where like police investigators after the firefight come in and account for all the right. That's just not the way it's done. What ends up happening is that it's very difficult to establish any kind of war crime in an actual firefight unless there's evidence that the firefight was used as a pretext for executions, et cetera. So for example, if you had captured in the middle of the firefight some Hamas,

people you suspect to be Hamas insurgents, then you just go around an alley and shoot them all. That, of course, would be evident. That would be a war crime. If you had an opportunistic, malicious pilot who saw it as an opportunity to drop a bomb on an unauthorized location in the middle of the chaos and hoping it would be lost in all the chaos,

that would be an example. But those are extreme outlier situations. in the middle of the chaos and hoping it would be lost in all the chaos. That would be an example. But those are extreme outlier situations. When you have an actual firefight, no holds barred going on in a city, especially a city that's held by a terrorist army, there is to walk into that and say, oh, there have to be war crimes there. That's not the way this works. That's not the way this works. That is not the way this works.

And a lot of people, I think, have this view. I was listening to somebody on a podcast, very smart international human rights lawyer, talking about how Israel could have engaged in police operations after October 7th to capture the leaders of Hamas. That sounds great, but it's completely divorced from reality.

It's not like Israeli police could go into the heart of Gaza and capture Hamas leaders without creating exactly the kind of giant urban fight you just saw. And so the reality is in the chaos of urban battle, you're not gonna to find really, it's very difficult to have a circumstance where there's actual war crimes and all that chaos. You'd have to show evidence that chaos was used as a pretext for some sort of deliberate

murder execution, but the actual chaos itself is not a war crime. It seems to me that it means some pretty bad things that Israel successfully rescued hostages from a civilian family's home because this kind of means it's all open now. Like Hamas has now, even more so than before, I think, with this evidence, opened up their civilian population to some really bad stuff that won't be war crimes. And that's their plan. I know. I mean, you know, that's the thing. But I guess what's sad to me, I mean, all of this is very sad, right?

The IDF soldier that was killed was sad, all of it. I think it's very easy for people to say that obviously the population of Gaza is complicit, that they want to hold the hostages, etc. I don't think we have evidence of that either. Yeah. We do not know how the hostages ended up in this home and how much this family and individual members of this family were sort of keen to be participating in this.

Yes, and I'm so glad you raised that because I see a lot of commentary mainly on the right that says, stop thinking of the civilians and Gaza is innocent. A lot of them support Hamas. Okay, let's put a pause on that. A, if they support Hamas and they're not combatants, that's not grounds for killing them.

Okay, so even if they support Hamas, you know, it would vote for Hamas or like Hamas, that's not a death sentence. Number two, and we know this from our personal experience in Iraq, you cannot know what that population thinks truly while it is still under the thumb of a terrorist army. Right. Okay.

There were a lot of- Right, it's why the polling isn't very helpful. No, no. Polling in Russia isn't helpful, polling in Gaza isn't helpful. No, no. Polling in Russia isn't helpful. Polling in Gaza isn't helpful. No. And look, I fully acknowledge that a bunch of people in Gaza are anti-Semitic and all of this. But to sit there and say, we know what Gazans think while they're run by Hamas is no.

It is fascinating, though, that the hostages all do look to be in, you know, It is fascinating though that the hostages all do look to be in good health, meaning they were fed clearly during their eight months. Is Gaza starving or were the hostages well treated? There are all these sort of contradictions baked in, but we know that Hamas has been stealing food and aid and all these other resources that are pouring into Gaza. For me, this hostage rescue makes everything worse on the ground moving forward, I think. I think it likely will. I think Israel had no choice but to do it. And this is what you have to do. And, you know, I... And thank God all those hostages and their families home and the videos of those were

incredible. I don't mean for a second to say I'm not thrilled that every single one of them is home and that it wasn't worth the operation to do it. It's more... I mean, it just shows you what a nightmare this war is and the way. And you know, I just at no point ever am I going to say, and so just assume everything I say when I say Hamas has done terrible things, there's no circumstances that then allow Israel to commit war crimes. So at no point when I criticize Hamas, am I granting Israel a permission structure beyond international law of arm conflict? However, what people have to realize is that Hamas's conduct by violating the laws of war

impacts Israel's freedom of action under those laws of war. And the laws of war are not set up to grant the advantage to the person who hides behind the civilians. Okay? For good reason. You're right. We really, really want that not to happen. Exactly.

The laws of war are designed to punish those who would use civilian human shields, not to encourage the use of human shields. And so when the international community is 10 times angrier at Israel than it is at Amas, this is exactly the reverse of the moral and legal dynamic, exactly the reverse. And I do wish, and I do wish there would be less attention paid to sort of activist human rights lawyers when they're talking about laws of armed conflict,

and more attention paid to actual practitioners, you know, the people who have had to make these horribly tough decisions in the American military, in the British military, or retired members of the IDF, you name it, people who've had to make, actually make these decisions against a similar enemy. And you realize that a giant amount of the commentary that is delivered so authoritatively on social media and many other places is just 180 degrees from the truth. These folks online often act as if Hamas's actions should give it an advantage.

No, no. Hamas's actions actually should give it a disadvantage. And so that's the dynamic of the international law of armed conflict. Again, none of it relieves Israel of its responsibilities, but what you have to know is Hamas's actions impact Israel's obligations exactly the way we described earlier when you're talking about when Hamas opens up on Israel, when Hamas puts hostages in apartment buildings, when Hamas stores munitions in schools, who is responsible there? Hamas is responsible.

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That's AuraFrames.com. This deal ends June 18th, so don't wait. Use code ADVISORY at checkout to say terms and conditions apply. You're hosting, what's next? I'm so sorry. There was a pregnant pause and you leaned in and I thought, Waiting for the host.

Sarah's about to drop a gem of wisdom. Man, this guest host is like pretty... I know. I'm rusty. I'm rusty, Sarah. Okay. Let's move from the Middle East to the First Circuit Court of Appeals. This is an interesting case. Here are the basic facts. It's very simple, although it's amazing how simple cases factually can lead to 70 page opinions that can often leave you just as confused

as when you started reading the opinion. All right, so the facts here are pretty simple. You have a middle school student who comes to school, number of people at the school identifies trans, and the student wears a shirt that says there are only two genders. Gets in trouble for having asked not to wear this, wears a shirt that there are only two genders, but then has some tape over it that says censored,

and there's a dress code. And the dress code has normal stuff like clothing must be neat and clean, clothing that is excessive revealing will not be allowed, tank tops and basketball shirts must have a t-shirt underneath, all of this. And then it says clothing must not state, imply, or depict hate speech or imagery that targets groups based on race, ethnicity, gender, sexual orientation, gender identity, religious affiliation,

or any other classification. And it says, any other apparel that the administration determines to be unacceptable to our community standards will not be allowed. So the actual wearing of the t-shirt did trigger public controversy once it came out, which then led to public attacks on the school after the school censored the shirt. But there wasn't really evidence of any kind of chaos at school. So the court looks at Tinker, which is a long time AO listeners will know Tinker just by the name. But for

the new AO listeners, Tinker is a case from the Vietnam War era where students wore black armbands to school and they were going to be disciplined for wearing the black armbands. The Supreme Court weighs in, says students don't abandon their rights at the schoolhouse gate, allows them to wear black armbands, but then says, of course, of course, school authorities may restrict student speech that quote, materially disrupts classwork or involves substantial disorder or invasion of the rights of others,

or otherwise put materially and substantially interferes with the requirements of appropriate discipline and the operation of the school or collides with the requirements of appropriate discipline in the operation of the school or collides with the right of others. So here are two big broad buckets, Sarah. Collides with the rights of others, you can suppress. Materially and substantially interferes with the requirements of appropriate discipline,

you can suppress. So the district court said, this T-shirt invades the rights of others. The First Circuit denied the plaintiffs and ruled against the plaintiff. The First Circuit rules against the plaintiff, but on different grounds saying, this actually materially disrupts the classwork

or involves substantial disorder or invasion of the rights of others, in part because the T-shirt is highly disparaging. Highly disparaging. So, Sarah, my initial response to this, my blink response was, this has got to be really wrong. This has got to be really wrong, that you're wearing a T-shirt,

there's no evidence that it caught, that there was some sort of chaos at school. There were people who didn't like it. Their feelings were hurt. But that's the same with the black armbands. People didn't like it. They were upset by it. Just being upset by speech is not the same thing as disruption.

And then I go and I just read this whole darn thing, Sarah. And I realized that at the circuit court level, the case law around substantial disruption is a mess. It's an absolute mess. A hot, steaming, flaming pile of mess. What did you think as you were walking through this thing? First of all, long-time listeners will know, I love t-shirt cases.

Angry cheerleader is my favorite Supreme Court case from the recent terms. And remember, that's a case where the high school student goes home and on her Snapchat says F cheerleading when she doesn't make the varsity team, she made the JV team and they suspended her. And you know, eight one, they said she had the right to post that. But what I thought would be sort of a pundit square of speech, you know, off campus, about school. And so this was, you know, if you're on campus and it's about school, well, no First Amendment right. If you're off campus and it's not about school, clearly First Amendment protected, even if it's, you know, everyone

hates it. If it's off campus and about school, or if it's on campus and about something else, I get it, we're going to have some disagreements there. But that's not really what the Supreme Court did in the angry cheerleader case. Instead, it was like, this wasn't really disruptive. Okay. By the way, that one vote was Justice Thomas, which just cracks me up as it's been described of beat the children with sticks. Right. It's interesting. I had the snap opinion when I read the summary of the case, same as you, that this must be wrong. As I then pondered it before getting to read the case, I had come around to a slightly more nuanced position about this. And then when I read the

case, I came away with you as, what the hot mess dumpster fire is this 70 pages? Yes. Because, look, let me tell you why I nuanced my position a little bit. Because at first I was like, it's a t-shirt with a political message that's core First Amendment speech is not targeted to any student. And I don't just mean it doesn't have their name on the t-shirt. Right. I mean, there's no evidence that this was about any student or about anything even particularly

going on at the school, aside from the political debate that's happening in the country that's also happening at the school. And that there are a few trans students, but there's no evidence that like he wore it because a trans student named Jill sat next to him, right? Or something like that. Or because that student had been expressing some belief that he disagreed, it had nothing to do

with any particular student. So that was my like walking into this case feeling. But there were a few other thoughts I had. One, this is a junior high school, this isn't even high school. And I guess I'm a little confused why the school dress code isn't more strict across the board. So for instance, in the record of this,

it says that they do allow shirts that are on the other side of this specific debate. Yeah. As long as those shirts are seen as positive and this shirt was seen as negative. Of course, I'm sure this student doesn't feel that those other shirts are positive towards him. So that seems really bizarre to me that, like, I don't know why we're not, like, this is

content-based. And the record shows that it's content-based. Aren't we kind of done at that point? But it is a junior high school. So this is obviously content-based at the school and kind of done at that point? But it is a junior high school. So, this is obviously content-based at the school and I don't know why their dress code isn't no political speech. Which I actually think would be far more in this like tinker line because it's a junior high school, because of the inherent disruption of political speech

in a junior high context. These kids can't even read like a bunch of the words that they're, you know, that they would need to be able to discuss this stuff. If you're going to allow political speech that again is not about any individual student and is not related to school function, if that makes sense, then I don't see why a teacher gets to decide that versus, yeah, federal judges get to decide what the First Amendment protects and what it doesn't. And so I found it a really bizarre opinion

for how it totally ignores the fact that this is content-based, that they are allowing pride flags, gender is a construct t-shirts. I mean, it doesn't say this in the opinion, but there's this one line that says, other t-shirts with the opposing message are allowed. That to me is sort of the end of the ball game here.

This is the shirt lift case about raising flags at Boston city hall. Once you're allowing some flags to be raised, then you don't get to say these other flags that have the other message don't get to be raised. Yeah, this is like peeling an onion of complexity and sourness. So first, the actual policy itself, the actual policy itself, my gosh, on its face, I wonder how it's constitutional. Correct.

Look at this. Any other apparel that the administration determines to be unacceptable to our community standards will not be allowed. How is that constitutional? And they did bring a vagueness claim against that. And it's one paragraph. That's up to the administrators. They need wide leeway to be able to control the junior high environment. I don't actually disagree with that, which I know will shock people because I was raging against the machine in both junior high and high school. I was in detention every day for not wearing a belt, which was part of our dress code. I wish I'd had some First Amendment complaint about the belt. I didn't. I just didn't want to wear a belt. They were trying to solve a problem with baggy pants. My pants weren't

baggy, so why'd I have to wear the belt? Uh, but here, there's no, nothing in the record to suggest that any disruption had started, that there was any potential disruption. Um, they just decided that one side of that political debate could lead to more political debate at the school and that that could lead to disruption sort of two, three steps away. I am somewhat sympathetic to the idea that like how far down the path of disruption do

you need to go before the junior high school now has the ability to crack down on political speech like, you know, in the mean girls thing, like do the monkeys and the animals all need to be beating each other in the hallways and now they have proof of disruption? No, but here there's nothing. Well, yeah, right. And that gets us to the second thing. So for me, but sort of category one, what this policy grants absolute discretion over speech to the officials.

That should be void for vagueness right there, okay? Number two, it allowed competing speech on the exact same topic from the exact opposite point of view. And by the way, the opposite point of view is not universally inoffensive. Okay. So this is again, something where you're talking about,

well, no, David, well, one side is offensive speech and the other side is not offensive speech. That is not the case, okay? That's also never true. Any political debate, you don't get to say one side of the good guys and the other side of the bad guys. That's the, it's a political debate. By definition, that's not accurate. And I'm also just on the school administrator point. The reason that I don't want them deciding which books go in the library as the last call, I don't mean that of course like in you know, they get to recommend books or have say, you know recommendations all that but The school has a bad interest here meaning they have an interest to prevent the speech that they don't like

Regardless of whether it'll be disruptive and this gets us to the third category here. This is an educational institution What is the educational objective here? Okay. And I keep going back to this and there's there's some listeners who might go, uh-oh, he's going to quote Pico again. So go back to this case involving book banning from the 1970s. You had a plurality decision in the Supreme Court, Justice Brennan, talking about what is the purpose of education in this country. And it's not just reading, writing, arithmetic. That's of course, of course, reading, writing, arithmetic.

But here was an interesting thing that Justice Brennan said. He said that education, one of the purposes of education is to prepare students for life in this pluralistic, often contentious democracy. Okay? So how do you do that? Now, there's a judgment call to be made, I think at the middle school level. And I think the judgment call would be,

do we have school uniforms or not? We're just no writing on shirts. We weren't allowed to have writing on our shirts. Right, exactly. But once you say, we're going to have some political messages permissible on shirts, the educational objective to me becomes teaching these students how to navigate a contentious, pluralistic society that it contains people who believe there are more than two genders, and it contains people who believe that there are two genders.

And to sort of say, well, the way we're going to deal with all of this pluralistic contention is only allow one side of that argument to speak. That's not, that's not the answer. That cannot be the answer because it goes straight back to and defies spits in the face of the very idea that we do live in this contentious pluralistic society. And one of the ways, one of the purposes of education is to prepare, prepare people for participation in that contentious pluralistic society and one of the ways, one of the purposes of education is to prepare people for participation in that contentious society. And the way I put it in the college environment also applies the same legal environment exists in K through 12 with sort of escalating free speech protections and with more obviously more protections in college than K through 12. obviously more protections in college than K through 12. But still at this K through 12 arena,

what you're talking about is students are protected from harassment, they are not protected from ideas. And that's a difference. And so I would feel very differently about this case if the evidence in the record was sitting right next to him was a trans student that he'd had a disagreement with and he's starting to wear this to essentially show up the trans student right next to him.

And that's targeting as opposed to a generalized statement of principle. And these targeting versus generalized statements really do matter in harassment analysis. If you'd had evidence, he'd actually harassed a student and ideas are not harassment, if he'd actually harassed a student, this becomes a different case. But Sarah, all of that thinking that we just walked through just doesn't happen to apply to an awful lot

of circuit court decisions in this area. That's true. So other t-shirts, Confederate flag t-shirt, Islam is the devil. And I think that this opinion is correct when it says that the facts on the ground matter. And that we do have to defer to these principals to be able to tell us,

principal meaning the principal of the school, not first principals. We do have to defer to the principals, for instance, to tell us whether he's doing it to target the student he's sitting next to. Yeah, the t-shirt doesn't say that. But if you're in this school, you're going to know what's going on and who's sitting with who in the lunchroom and all that stuff. I actually think that stuff does matter in a junior high setting the way it does not matter in an adult setting, for instance. Right. I also can see a difference between Islam is the devil being more on the fighting word side, if you will, then Islam is wrong.

Right. And one of those to me is more about stating your political beliefs versus starting a fight saying there are only two genders. Context matters. That on the one hand is a statement of a political principle that is open to a conversation. And in some context, it's fighting words. It's meant to troll people.

Right, right. And I guess, so David, setting out the legal context here, I kept going back and forth on whether I was annoyed that the parents let him wear the shirt. Yeah, that's a really good question. Right? He had to buy the shirt. He got to wear the shirt to school. Once he wears the shirt, I understand the dad standing up for his kid's First Amendment rights and following through with the lawsuit. There was a lot of publicity about this case, lots of interviews

about it. I didn't love that. Yeah. I mean, underpinning a lot of these cases, for example, let's go back to the praying coach, Coach Kennedy. It's exactly what reminded me. Yeah. That like you, vindicating your first amendment rights is a good thing, but being able to teach your children

what it is to be in a pluralistic society and have disagreements and being able to discuss those and not doing it in a way to troll others or for the purpose of instigating disruption at your school is also a value. Well, and there is also a real question about how are you teaching your kids to interact with people with whom they have disagreements?

Yeah. And that is a big part of this. So I was sort of actually thinking through the same thing myself. If any of my kids had said, I'm going to wear this t-shirt, I would have said, you will not. Not because I disagree. I think there are only two sexes, right? And I think that there are some very small number of people who have chromosomal abnormalities, but very small number of people who have, you know, chromosomal abnormalities, but there's male and female, right?

And so I agree with the underlying statement, but at the same time, what is the way in which you make your case? And also what is the way in which you treat your classmates? And the fact that some of them put stuff in your face and do sloganeering in your face does not mean that any return in your face and do sloganeering in your face does not mean that any of return slow in your face sloganeering is the right way to handle these kinds of debates and discussions and

So I would much rather Teach my kids to interact with people that they disagree with in a way that is conducive to relationship and conversation and not in a way that repels people from entering into relationship and conversation. And so, yeah, this is a common issue. And when you do these First Amendment cases, Sarah, there's a million cases that I've had that I don't agree with either the underlying message or the way it was presented. Yeah, I mean, generally the people trying to vindicate their First Amendment rights, the underlying message or the way it was presented.

Yeah, I mean, generally the people trying to vindicate their First Amendment rights, either their message is deeply unpopular, deeply unpopular, or they're behaving in a way that is not great. Yeah. But that's what the First Amendment's there to protect, because otherwise we wouldn't need to protect it,

because we'd all be like, oh, that's nice. And if you think that it's somehow productive, not productive or counterproductive to protect these people and protect this kind of expression, what you have to realize is by protecting the frontiers, you protect the world we all live in, which is very few people want to be at the edge of free speech. And so when you protect the frontiers, you're actually really providing people sort of in that broader American middle with a feeling of security that they have an ability to speak their heart in a way that's not going to get them canceled, censored, punished, et cetera.

And so protecting the frontiers really helps the center hold. And a lot of people just don't get that at all. It's protecting the Overton window through sharp elbows on the outside of the window. Yeah, and I can say, you know, and I think this is also, Sarah gets to some confusion that people have about, say, us when we're talking about the difference between our strong support of civil liberties,

but also questioning, hey, was this the best way to do it? People confuse that when we support civil liberties, we're not necessarily endorsing the message or the means. Right. And so, but then when you critique the message or the means, people feel betrayed. Wait a minute, weren't you just defending it? No, I was defending the right to free expression.

I was not defending the way it was expressed or maybe even the message. And there's just an enormous amount of confusion about that. Okay, so what about the Confederate flag example, which was many of these cases? Is a student in a junior high school Okay, so what about the Confederate flag example, which was many of these cases? Is a student in a junior high school allowed to wear a Confederate flag to school? Yeah, that's another great question.

My general answer would be very similar to this. Is there evidence of individual targeting? Is there evidence? No. The record is just like this one. There's nothing. The student just wore a Confederate flag to school. I think that that should be permissible in the absence of material disruption.

Because in one of the cases on the Confederate flag example, there's literally like a junior high gang called the Hicks and they wear Confederate flags like to find, it's like a gang symbol. Like yeah, I think the school can ban that. No problem. Just like they could ban, I don't know, a black-up arrow if it's a gang symbol. And that's gonna be up to the school to know who the gangs are, so to speak. And I don't really know if this is like a real junior high gang or like a gang.

There are cases, I remember, from years ago involving people wearing Notre Dame hats. And the school banned them, and everyone was up in arms until they realized that they were N and D for N-word die. And so that's something the school principals knew, right? The school principal knew and he appropriately responded to that. I guess that's my thing.

I wanna defer to the school principals on their knowledge of the facts on the ground. I don't wanna defer to the school principals on the law. Right, exactly. I don't want a legal standard that says, It's up to you. But by deferring on the facts to the ground, that is the harassment analysis.

The harassment analysis is a highly fact-dependent analysis. What they're trying to do when you do these big sweeping, we can ban anything that we want to ban, is that's skipping the harassment analysis entirely and just going towards often the offensiveness analysis, which is different from the harassment analysis. Offensiveness and harassment are different. I thought they made a good point about this is not, it's not simply that like, for instance,

the school celebrated Pride Month by having a, what do you call it, like poster board or whatever, the billboard with a pride flag and stuff like that. And like they have a pride group on campus. That doesn't license you to then wear whatever shirt you want in response to that message. Or Black History Month would allow you to wear your Confederate flag shirt

all through Black History Month or something. No. So that's not the analysis either. But I do think it's basically either ban all the shirts or have a harassment specific inquiry. And if not, and you're allowing the shirts on one side, then you allow the shirts on the other side. We already know Heckler's veto can't control the shirts on the one side just because one side of the debate is more popular than the other side. Yeah, so, okay, but last bit on this case, David. So we think they came out wrong.

They said that the school could ban him from wearing the shirt and from wearing the shirt with tape over it that just says censored, which also I think is such a clear political message against the school, having nothing to do with the underlying debate over gender and sex. There was really not much of an analysis about wearing the tape with the word censored on it. It just said, well, the underlying message is the same and everyone knew it because he'd gotten media attention on it. It just said, well, the underlying message is the same and everyone knew it because he'd gotten media attention

for it. I was like, nope, nope, nope, nope, nope. So we think this is wrong on pretty much every count that yes, the policy is vague, that there was no evidence of harassment, that the censored shirt should get a separate analysis. All of those things. I don't think the Supreme Court will take this case.

I don't think so either, Sarah, because I was trying to think this through because it has been a long time since the Supreme Court has taken up a material disruption case. I mean, the angry cheerleader was more of an off-campus speech case in many ways. It was off-campus, it was social media,

it was all these new things for them to try to address, and I'm not gonna say they address those particularly clearly for lower courts to apply. Interestingly, in this case, it gets cited two or three times in really unhelpful fashion. It's like, eh, and then there was that case. Yeah, I know. And so we've now been, this material disruption, what is or is not, which t-shirts qualify, which hats qualify, which ones do and don't, has been a subject of absolute confusion for 20 years, longer.

I mean, it's been a source of confusion for a long time. And actually, I'm not sure that the Supreme Court necessarily has a clear way of wading into this anymore. I do think there is a construct, free speech versus harassment, that can maybe be a little bit more clear than free speech versus material disruption, because at least harassment has a legal definition that's a little bit easier to understand than the whatever disruption means definition. But I'm with you. I'm very skeptical that the Supreme Court will take this up.

I feel like the Supreme Court seems somewhat happy to let the principals and lower courts just hash this out case by case, but I'm with you. I'm not so sure that the Supreme Court will take this, but look, my general view here on these things is that earlier we can start to inculcate into kids, you are protected, you are not protected from ideas,

you are protected from harassment, and ideas are not harassment. The better off we're gonna be, because one of the things that these dress codes have done, aside, again, I'm fine with the dress code that's no writing, or I'm fine with the dress code that's you're gonna wear a white shirt and a blue pants, whatever, I'm fine with a dress code that's no writing, or I'm fine with a dress code that's, you're gonna wear a white shirt and a blue pants, whatever. I'm fine with that.

But when you have the worst of all the worlds is, we're gonna allow some kinds of speech, and if you're the preferred constituency in the community, you're gonna get to have wheeled veto authority over your opponents. That is not, that is teaching them exactly the wrong lesson. That's teaching them the opposite of what we need to teach people about how to live in a pluralistic society.

True. All right. I don't think we got going on this first circuit case. I don't think we've got time to walk through the Constitution. But how about this? How about this, Sarah? Here is my proposition after thinking about it over the weekend. Okay, so my basic proposition is that the Constitution, from the standpoint of individual rights, has arguably never been healthier. You're more protected from free speech censorship on the basis of your speech than any time in American history.

You're more protected from religious liberty encroachments. I think even than pre-Smith, because it has been more than a decade since we've seen a serious free speech, I mean free exercise loss at the Supreme Court, and there have been extensions of legal doctrine that have allowed things like religious schools to receive public funding, et cetera. Second Amendment, I don't think anyone would argue that it's less robust in its protection of individual liberty than it was 25 years ago.

Third Amendment, solid for a long time. I think Fourth Amendment, there's lots of grounds to say, wait, we could do more on, say no-knock raids, etc. But as a general rule, there's a very robust body of law. I mean, you go down through the amendments and not only do they have more force and effect than they did throughout much of American history, but they applied all levels of government when they didn't through most of American history. Here's where, and similar with,, I think this is my originalism flag and it's going to start waving right here. I think the 14th amendment post Harvard

case is maybe more revitalized than it's been in a long time. Equal protection means equal protection very, very clearly right now. But here's where I have my issues with where we are. It's less the Bill of Rights and the Civil War amendments. It's more Article I, Article II, Article III branches of government where Article I is supposed to be supreme, and yet Article II, the presidency is. And that's not so much a constitutional violation, necessarily, but it's a way in which the two political

branches, as one has withdrawn, the other has grown, often with the permission, encouragement, and under the mandate of the Article I branch of government. That's not an arrangement that's susceptible to a Supreme Court cure. I mean, overturning Chevron will be part of that, but it's really kind of an issue of the political will of that branch of government voluntarily losing that political will and voluntarily abdicating. So that's my top line assessment, Sarah.

So you wrote in the New York Times this part that I found very interesting. You said that some of this disconnect of how people feel about what's going on with their constitutional rights is the difference between power and liberty. So, for instance, you said, one of the most important stories of the last century, from the moment the Supreme Court applied the First Amendment to state power in 1925

until the present day, is the way in which white Protestants lost power but gained liberty. Many millions are unhappy with that exchange. Consider the state of the law a century ago until the expansion of the Bill of Rights to apply to states. If you controlled your state and wanted to destroy your enemies, you could oppress them to a remarkable degree. You could deprive them of free speech. You could deprive them of due process. You could force them to pray

and read state-approved versions of the Bible. Powerful people often experience their power as a kind of freedom. A king can feel perfectly free to do what he wants, for example, but that's not the same thing as liberty. Looked at property, liberty is the doctrine that defies power. It's liberty that enables us to exercise our rights. Think of the difference between power and liberty like this. Power gives the powerful freedom of action. Liberty, by contrast, protects your freedom of action from the powerful. I think that makes a lot of sense. I, though, wonder whether a different framework to think about it is just that humans experience life comparably.

Mm. It is, right? One of the original sins is envy. When you hear all the time, for instance, like, the poorest American today lives better than the Rockefellers did a hundred years ago. They mean by virtue of having, I don't know, access to antibiotics, emergency room care, free public libraries. You have all the books at your fingertips you could possibly want. Free public libraries that have

access to the internet. But the poorest Americans today, of course, don't feel that they're richer than the Rockefellers because they're looking around and they're poor. Poor is a comparative term. And I wonder if people feel, some people feel, comparatively less free because of the freedom experienced by others, i.e. they used to be rich in constitutional freedoms, and now they're middle class in constitutional freedoms, if you will. So, for instance, you wrote this as well, it's not just that Catholics and Protestants have equal rights, a relatively recent development, it's that Muslims, Sikhs, Jews, Buddhists, and atheists all approach the public square with the same liberties. That's the part that's new. So comparatively, you went from being a Rockefeller to being in the suburbs in a nice, you know,

2000 square foot home. And next to you are all the other people in their suburban homes. And that, again, just like human brain stem sense of looking around and comparing yourself to others when it comes to constitutional rights You may well feel that that hedonic treadmill if you want to think of it that way that you've fallen behind It no longer tastes as good as it used to yeah I think that's a great way a very human nature focused way of looking at it Because it is actually true that there was a loss

here. There was a loss of power. It's very real. I mean, let's just rewind the clock several decades. I mean, you literally could say to people, you must pray. We're going to begin with Bible readings, and by the way, it's going to be the King James Bible, which a lot of- And it is mandatory in schools. Your students will be reading this version of the Lord's Prayer in public school. And by the way, public school is mandatory. Yes, public school is mandatory.

And oh, by the way, if you're a Catholic, good luck. We have the Blaine Amendment that's going to kind of put you into the second class citizen status and that's in state after state after state. And then all of a sudden, the day comes where they say, you know, that Bible, you can't force people to read that Bible. That prayer, you can't force people to engage in that prayer. And if you are the governing authority and a majority in your community want this, and it's the minority that has asserted its will using the Constitution.

The majority experiences that as a loss. And especially when it's related to religion, they put in place these religious impositions because they sincerely, to the core of their being, believe this is how you make the community flourish and how God blesses your nation and all of this. Then you don't just experience it as a loss, you experience it as a catastrophic loss, as a spiritually consequential loss. And so this is what's happening

to a lot of white Protestants, especially in the South or parts of the Midwest where they had absolute dominance for so very long. But the reality is that dominance was actually at the expense of many of the fundamental aspirational principles that we announced when the Declaration of Independence that we enacted with the Bill of Rights. And it was a...

And Dwight, to your point though, it also was at the expense of their liberty, as in they had power but not liberty. Yeah, right. Exactly. And so they didn't miss the liberty because they had the power, but at no point did they actually have liberty. No.

That if the power dynamic had shifted in their community, and let's say somehow, you know, there'd been a big migration of Muslims into a particular town. Or Catholics. Or Catholics. Or Catholics. They could have said, okay, we're gonna say the Hail Mary to start the class. Or they could say five times a day, we are bowing to Mecca.

And so they didn't have that liberty that they thought they had, they just had power. And they only enjoyed that they were in this sort of state of, you know, they were in a state that they enjoyed mainly because of the accidents in history that had concentrated a majority of them in that particular time and in that location. And if they lived in a different location

at that same time, they would have chafed under the authority of the opposing jurisdiction. And the Bill of Rights, now properly understood, grants each person equal status no matter where they are and no matter what the majority says, I guess, unless you're in a middle school in the First Circuit. You know, I think you're focused on the religious side for very good reasons, and I think it provides a lot of people good context. I'll tell you that I think I walk into this conversation from a different angle than you,

which is the 19th Amendment. Right. Right. There's now this group of people who think that repealing the 19th Amendment is a good idea, will solve our country's woes. This is of course the amendment that gave women the right to vote. And that's such a great example of the difference between power and liberty. Because when women got the right to vote, it literally diluted the votes of men. So they became less powerful

by definition, like half as much powerful actually. But it increased liberty, because in theory, before that, women maybe could have taken over the country and just simply said, men don't have the right to vote. And now we can't. Whoa, onto us that we cannot deprive men of the right to vote for 150 years and see how they like it. And so I think that's what I mean about like comparative stuff, because men absolutely are better off in an absolute sense, but comparatively, they're not.

And I think your power and liberty dynamic is getting to the same idea. I think both are really true. But man, I think I've mentioned this before, but like when I was in, this isn't just like a Christian nationalist thing that's popping up now or stuff people say online to troll, like, ha ha, we should like repeal the 19th amendment. Yeah. Like Beavis and Butthead style. This was actually a topic of conversation

when I was in law school. Well, when I was in law school, what I mainly heard from the left was the constitution is fundamentally broken. Right. And what that was meaning in many ways was that people on the far left had an idea of how to remake society, to cleanse it of the racism and sexism and homophobia of the past. But they couldn't do it under the current constitutional structure.

I know it's such a pain that you have to have buy-in from all these other people that you live next to. Ugh, bicaramelism is the worst. Especially when we know what is best and how to fix all of this. Right? It'd be so much easier if I could just have my magic wand but make sure no one else ever gets a magic wand

other than just me, who is the smartest. I mean, it's like the dumbest stuff I've ever heard. And right now, you hear it from this like, well, but this is an emergency. Right. And I've mentioned this before too, this like lesson that Rod Rosenstein taught me that was like a thunderbolt.

That like, if the rules don't apply in emergencies, then you don't have rules. It's like free speech, right? You don't need free speech for the popular stuff and you don't need rules for the times that are going fine because then you just like follow regular order and it all makes sense. The rules are for emergencies, free speech is for unpopular opinions, and a constitution like ours is for a pluralistic society because you will not always be in charge. You do not actually know the right way to do everything and I think you know there's this interesting article in some

newspaper, Grey Lady or otherwise, that said that a lot of the quote-unquote liberal policies pursued by the European Union have led to illiberalism. There's a shock when you tell people like this is the way we're going to live because it is the way that is correct. When you stifle free speech and you stifle pluralism, then it's going to turn out you weren't right about everything. I mean, the lack of intellectual humility by human beings as part of their nature, not because they belong to one tribe or another tribe or on one side of the political spectrum or the other. It is simply human

nature to not be humble. Ben Franklin said it in his autobiography and it cracks me up. He had his 13 virtues to achieve perfection and humility was one of them and he achieves like the other 12 and he's really working on humility and he spends two or three weeks on that. And he says, I finally achieved humility, but I was so proud of it that I just decided 12 was enough. Yeah. Like that is human nature in a nutshell.

If your agenda is built around imposition, in other words, I have figured out how to fix all of this, and now I'm going to bequeath upon society the following set of rules. So if your agenda is built around imposition of your values or and or destruction of your enemies, the Constitution is going to be this giant roadblock. And by Constitution, I don't mean the 1787 Constitution.

I mean the Constitution as it exists right now today with the Bill of Rights given full life applying from the highest levels of government to the lowest levels of government. So it is not surprising at all that the moment someone heads towards Christian nationalism or the moment that someone heads towards sort of critical theory illiberalism, it takes only a few minutes, so to speak, for someone to start getting frustrated at the Constitution. And it's not at all surprising to me that we see as the right becomes more authoritarian,

where parts of the religious right become more Christian nationalist, that you're now seeing an attack on the Constitution from the right. I've seen it for 30 years coming from parts of the far left. One of my biggest critiques of critical theory is how it often goes hand in hand with illiberalism. Critical theory, in my view,

has had a lot of interesting stuff to say about critiquing American history. It gets less interesting fast when it starts tying its program to an illiberal, anti-constitutional agenda. I wrote about this in the Times when you talk about concepts like DEI, diversity, equity, inclusion are good values. When they're tied to an illiberal assault on the Bill of Rights, that's when it gets dark really fast. And this is a temptation that extremists are falling prey to.

They want to impose and they want to destroy. And if either one of those points of view are in your vocabulary as opposed to persuade and accommodate, then the Constitution is going to be a barrier for you. Well, man, you've done a pretty good job guest hosting. I know. I can't hold a candle to you, Sarah. I'm just, I'm so rusty. I think your segues need work. I know. I know. We had some pauses there that were awkward. Yeah. But, but thank you for, you know, not being on Twitter and just allowing me to take your

tweets. That's been nice. Any time. Yeah. Any time. And you're out for the rest of the week. So next episode, you will not be guest hosting. I will not be.

By definition. You won't even be special guesting. No, I will not. I will not. So try. But we're still getting Supreme Court opinions on Thursday. So we will endure. You know what's going to happen? I'm going to be out. I will not. So try, try. But we're still getting Supreme Court opinions on Thursday. So we will endure. You know what's going to happen? I'm going to be out.

Yeah. Yeah. Rahimi is coming down for sure. Rahimi and immunity. Okay. If Rahimi and immunity come down, I predict that you will suddenly find the time to podcast. There'll be some way. It might be 2 a.m., but you'll be back. Possibly. All right, I guess I sign off.

Yeah, that's right. So I will not be here next time, but Sarah will back in the host chair and she will be delighted. We will be delighted. No, let me. Okay, I've blown it, Sarah. I don't even know how to close a podcast anymore. I won't be back, but Sarah will and see you next time.

Good pod.