Advisory Opinions - On Porn and Paxton

Episode Date: January 16, 2025

Is limiting access to porn a free speech violation? Sarah Isgur and David French discuss that question following oral arguments in Free Speech Coalition, Inc. v. Paxton. The Agenda: —Best argument of the term —Does context protect a lie? —Burden of proof in age verification laws —Project Veritas and press freedom —Breaking down the Laken Riley Act Advisory Opinions is a production of The Dispatch, a digital media company covering politics, policy, and culture from a non-partisan, conservative perspective. To access all of The Dispatch’s offerings—including Sarah’s Collision newsletter, weekly livestreams, and other members-only content—click here. Learn more about your ad choices. Visit megaphone.fm/adchoices

Ready? I was born ready. Welcome to Advisory Opinions. I'm Sarah Isger, that's David French, and David, we're going to do four things today. We're going to do two oral arguments, one Ninth Circuit en banc, and then we're going to talk about a proposed piece of immigration legislation that is surprisingly getting bipartisan support. And David, I'm really excited because today is a big day in any Supreme Court term, one

that I know listeners, judges across the country are waiting for. I'm ready to announce best argument of the term, David. Are you really? I really am. But it's only January 15th. We're at the halfway point. I mean, as we record it, yes. Yeah, so we're at the halfway point in the term.

So I could be proven wrong, but that's how confident I am. Now, it's important that everyone understand what goes into best argument of the term. Generally speaking, it is going to be something of delight. It is not going to necessarily be one of the big cases of the term. And it's going to be the argument that I most think exemplifies the work that the Supreme Court does for a non-lawyer or a lawyer who just wants to pop in for a Supreme Court argument to see what all the fuss is about. And I've got it, David.

You've got it? Okay. It's not the porn case. No. That might have been least helpful argument of the term, but we'll get to it. Wow. Yeah, okay. I just want to say you could have turned it off after the first 15 minutes, but. I don't know that we needed to listen to it at all. Yeah. Most, best argument of the term

goes to Thompson v United States. Now, David, I think listeners could already tell, I was a little bit excited about this case beforehand. This was the question of whether false and misleading are the same thing. And it dealt with the grandson of a daily family, you know, scion and heir who was convicted. For what it's worth, he's already done his sentence. He's already paid his restitution. This case is now just over felon conviction title. So not a lot at stake here, which also I think added to the delightfulness of it.

It was so good, David, because the only thing the case really was about is what does the word false encompass? Because if so many statutes have false or misleading in them, but this one only has false. Right. How much of misleading can it encompass? And are there things that are misleading that are different than, for instance, what we

would think of as false in context? Or is false in context just synonymous with misleading? And does that mean, what does that mean for Mr. Thompson? Mr. Daily Thompson, as it were. Now, remember the facts of this. He takes out two loans, both worth roughly $110,000. Then the bank goes under, these are loans on very favorable terms,

it's like his family's preferred bank, he's a daily, yada yada. Bank goes under, New bank ownership comes in and they give them a little ring-bring. And they're like, hi, we have here that you owe $250,000. It's like $269,000. And he says, I borrowed $110,000. He doesn't say, I only borrowed $110,000. He doesn't say, I only borrowed $110,000. He doesn't say, but I only owe you $110,000 and not a penny more. So if the statute says that the statement has to be false, and the jury was instructed about falsity, and they convicted him, does his conviction stand? David, it was just, it was the best argument of the term.

Okay, why? Cause you made a bold claim and you're gonna have to stand by it even as other oral arguments unfold here. And I plan to. It's like saying, this is the greatest basketball game in the 24, 25 season, and it's one that happened yesterday.

But sometimes you just know, don't you? Okay, okay. First of all, I like when the question is really drilled down. Cause we're not even talking about weather, for instance, like the jury found that it was misleading, but the statute only says false. So what does that mean?

No, everyone kind of agrees. The statute only says false. The jury needs to find that it was false. To the extent the Seventh Circuit introduced the word misleading, like, ugh, they're bad. They shouldn't have done that. The word misleading is not in the statute, even though it appears in other statutes.

If anything, the fact that it appears in other statutes means that it's extra, not included in this statute, right? But everyone sort of agreed on that. And so now we're just talking about there's false. The sun rises in the West. That is false. But what about false in context? And so we had all of these wonderful hypotheticals.

So for instance, this is from Justice Kagan. You actually entered the store 50 times, but when they ask you, you say you entered five times. It's true, but obviously not to the point. Now, it is misleading as well, but is it false in the context? And does the context matter? Does it require the person to have asked you a question, for instance, or does it require some subjective understanding on the listener? And this is where I thought Thompson's advocate did the best job. He's like, the word false is objective. The word

misleading is subjective. That's why most statutes include both because they're saying if it's subjectively false or subjectively the listener would have not understood the truth, then you can be convicted. But here it's just the objective side. So it really matters in his view, what the bank FDIC person asked. And of course, here they didn't ask anything. They stated a fact and the guy stated a fact back.

Okay, so this is a Jackson one and a good mom one at that. Mom says, you know, there are only two cookies left and you say, I ate five cookies. In fact, you ate 15 cookies. So what you said, is that false in context? Is it only misleading? What is it? And can a jury find that it was false? Is that? And can a jury find that it was false? Is that so unreasonable for a jury to find it was false? I really, really enjoyed it. Also, though, there was a great laugh moment. And the best argument of the year, David, clearly has to have a great laugh moment. There were some in the porn argument. Those were awkward.

It's true. It's true. This was genuine. Okay. Justice Alito, tell me again, what is the difference between a statement that is false in context, not literally false when viewed just by itself, but false in context, and a statement that is misleading? This is Mr. Thompson's attorney, Chris Gare. So a statement.

Let's take an example of a statement that might be misleading. If I go back and change my website and say 40 years of litigation experience, and then in bold caps say Supreme Court advocate, that would be after today, a true statement. It would be misleading to anybody who was thinking about whether to hire me versus Mr. Francisco or Mr. Waxman, right?

But a false statement would be if I had not ever argued in the United States Supreme Court, Alito. Well, that's mildly misleading, maybe. At best. It's, I don't know. I don't know that that's going to mislead anybody, but at best, it's mildly misleading. There's a little laughter in the room. Justice Kagan hops in. Well, it is though, the humblest answer I've ever heard from the Supreme Court podium. Justice Kagan, good show on that one. Chief Justice Roberts, not so good for Mr. Francisco and Mr. Waxman.

Anyway, they're just like, this guy, it's his first time arguing at the Supreme Court and he's self-deprecating in kind of an extremely delightful way. Loved it. Yeah. Yeah. No, I agree with you that this was good. I'm just, I'm not even disagreeing that it's the best. I'm just admiring the boldness of the prediction.

It also had a lot of fights over the word literally with Supreme Court justices using the word literally, literally a lot, and then sometimes literally less so, and then at one point saying, I don't know what the word literally means anymore. The Solicitor General, of course, argued on the other side. I thought her example was good. This was not Elizabeth Prelogger. It was an assistant solicitor general. Okay, so a police officer pulls you over and says,

have you been drinking? And you say, I've had a cocktail. Is that false? False in context? Or only misleading if in fact you've also had five beers. I actually think that's a pretty good example. The only distinction here is that, again, he was never actually asked how much do you owe us?

And I also think it might be relevant to listeners to understand what the FDIC person, the person who said, I see here, you owe $269,000. And he says, I borrowed $110,000. They thought he was just confused. Like they were never fooled, if you will. They thought, oh, this poor idiot doesn't know how much he borrowed. But also relevant to the whether any reasonable jury could

find this. He said the same thing over three phone calls. There's nobody's arguing that he wasn't trying to mislead them. Like, yes, he was trying to mislead them. So the only question is whether what he said, could a reasonable jury find that what he said was not just misleading, but false? Right, and you know, I agree with the SCOTUS blog summary of this, that it's tough to say who's gonna win this thing. Oh, it's not.

After. It's not? No. Okay, all right, well. No. Okay. All right. Well, interesting. All right. Well, I'm curious about that.

But I do think that the thing that is mysterious to me is maybe it's not right to say who's going to win, but how this is exactly going to come out. Like what? Okay. Fair enough. But Mr. Thompson's conviction is not getting overturned. Right. This looked a little 8-1-y to me with Gorsuch. Remember I talked about this? Like what's Gorsuch going to think about the sort of lenity-ish aspects of this? Not actual lenity, but the sort of like

holding the government to the highest burden possible. Absolutely, that's where Justice Gorsuch was. He in fact got kind of a little, he was not finding this delightful because it seemed that several of the justices were questioning why they took this case in the first place and whoever voted, the four who voted to take this, maybe regret some of their decisions except Justice Gorsuch.

Because the two sides initially, like when they took this case, this was about whether the difference is between false and misleading. But the whole thing kind of collapsed and the record and the facts kind of collapsed. So this would be a good candidate for a dig under other circumstances

that dismissed as improvidently granted. It's not gonna be digged. I won't bet a ton of money on that, but as improvidently granted. It's not going to be digged. I bet a ton of money on that, but I'm pretty confident they're just going to go forward with this. But as Justice Gorsuch said at one point, we didn't take this case to decide whether a reasonable juror could have found this false. That would be a fact-bound error correction, something we don't do at this court. We took it to determine whether a statute about false

can include misleading. This isn't about the facts. So his argument is, that's all we do here. All we say is, false can't include misleading to the extent the Seventh Circuit said it could. They're wrong. Go back and do your work over again. The end.

I think you probably had eight other justices, we'll see, maybe only seven, saying like, no, I think we can call this one. The Seventh Circuit might have added in the word misleading, but the jury didn't. Right. And a reasonable jury could find on these facts that this met the definition of false and it would actually be helpful for us as a court to define the word false. So I agree with you David that it's not clear how much they'll define the word false for us. Right, right. I think it would be helpful if they did. Yes. I don't know how many votes there are or how exactly they would do it. I will admit that toward the end there's we started to lose maybe some justices on how

And we started to lose maybe some justices on how carefully they wanted to find the word false, whether they need to define the word false, or just send this back and say, false doesn't include misleading, but it certainly could include false in context. You guys go figure out what the word false means and come back. But I'll tell you this, the conviction's not getting overturned. You had nine justices basically saying that like, oh no, Mr. Thompson did something false. Right, so this is what I mean. I agree with you on the conviction not getting overturned.

What I don't know is what the definition of false is going to be after this case. That's what I don't know because in some ways, it's very interesting the reasoning that says this is misleading but not false because a reasonable juror, if I say what do you owe and I say 110,000, I have never heard of a immediate follow-up of is that the total you owe or a subset of it? That the 110,000 for a reasonable person comes across

not as a declaration of a subset of the total, but as a declaration of the total. And if it is purported to be a declaration of the total, it's false. You know, you can have so much fun coming up with hypotheticals, which was what was one of the things delightful. Here's one of mine.

Do you own a car, Sarah? And you say, I have four tires. Well, true, you have four tires. And true that- But does it matter whether you actually say, do you own a car or does it matter whether you say say, do you own a car or does it matter whether you say, boy, look at that car and then you volunteer, I own four tires. Then was it false?

Justice Kagan had the example of a doctor talking to a patient and recommending that they undergo the surgery with the doctor. The patient's just listening and the doctor says, I've performed this surgery hundreds of times. Now, as it turns out, the doctor has performed this surgery, let's say 110 times. 109 of those patients have died, but he doesn't offer that information. Is that false or is it misleading or is it false in context? Right? Like, so this is, you have three buckets here, literally false. The Sun rises in the West. false in context? Right? So this is, you have three buckets here. Literally false.

The sun rises in the west. False in context? That's our like, does that exist? Is that a real thing? Does there have to be a question? Is it subjective? Is it objective? And then you have misleading, which I think we all sort of understand.

Misleading is anything that's not literally false. And it is subjective. Does it mislead the person who is listening to it? And that's gonna necessarily, I think, need to include what the rest of the conversation was about. Because David, to your car tire point, if the conversation was like, oh man, those are some nice Goodyear tires,

and you say, I own four tires, that's not misleading about anything. Not misleading at all, right. So clearly the context does matter. And so you have Justice Kagan on the one end saying, let's decide what false in context, let's give guidance on what false can include, including false in context.

And you have Justice Gorsuch, I think saying, false and misleading are different, that's what we're here to do, ciao. How many votes each one of those get? Fine, but none of them are gonna say, I think that this was misleading, which was fun. Yeah, it's great. And you know, it always, whenever we have a case

that's about what does this word mean, I like to think back of my favorite case, one of my favorite cases of my legal practice that boiled down to the argument from the other side, from the defense side, that in a contract the word or meant and. Oh, yeah. Yeah. And we won that case, we won that case by arguing that or in fact meant or, and or did not mean and. But it's a less frivolous argument than you think, Sarah,

and or did not mean and, but it's a less frivolous argument than you think, Sarah, when you actually sort of work through the case law. But I love these kinds of cases that it's a nice break. It's a nice break from heavy, consequential, emotional work. Barrett, by the way, just to like run through with the different justices. So as I said, I think Kagan wants to like go all in, like let's define false in context. That's also encompassed in false. Barrett, false means untrue when made and leave it at that. But I don't know what untrue when made means. Does that include the context or no?

I'm not totally sure. Alito I think could actually be sort of the swing vote here in a way. So he's every single time like, what is the difference between misleading and false in context? And I thought the Solicitor General nailed it at the very end of this argument because this was her answer. Misleading means leaving out different information.

But if the info itself is false in context, then it's actually false. So for instance, if you put on your bio or your resume or whatever, one national tennis championship is the example that she uses. But the actual match was forfeit, the other side forfeit, so you won it, but you didn't actually play the match, if you will. She would argue that that's misleading, because the other info that it was forfeit was separate info, right? It adds to your understanding of whether I actually won

a national tennis championship, but I did win the national tennis championship versus saying I owe $110,000 when you actually owe $250,000. That's the same information. You didn't leave out other different information that would help a listener more fully contextualize what you're saying. No, it's the same information. You just left out the rest of it. I thought that was a great definition. I would vote

with the government in this one. I think I agree with you, Sarah. Hive mind. And we'll take a break to hear from our sponsor today, Ethos. Your family depends on you. So get serious about something every family needs, life insurance. Ethos has made securing life insurance as smooth as possible.

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So it's funny, David. Adam, that cannot be the title. That cannot be the title. Quote, all right, let's do some porn. No, that cannot be the title. It's going to be the title. That cannot be the title. Quote, all right, let's do some, no, that cannot be the title. It's gotta be the title. We scheduled our entire recording around getting to listen to this argument, David.

And as we've already teased, it was kind of a slog. It was the definition of a slog. You had three people arguing here, the Free Speech Coalition, which is actually a trade association for pornographers or adult content providers. I don't know how they would define themselves. You then had the Solicitor General coming in as amicus and you had the Solicitor General of Texas arguing for the Texas law itself. Now, David, the Texas law has never gone into effect. And so there's definitely some record and some facts that we don't have here that might be relevant to people.

So in short, this says if 30% or more of your content would be, you know, unacceptable for minors, sexual and content, yada, yada, that you have to age gate it. We don't know whether that means you have to age gate the website or you have to just age gate that content. That's going to come up at the argument. That actually was helpful to think about. We also don't quite know what material we're dealing with, what all websites this deals with, et cetera. Does this hit Netflix?

We don't know because this is sort of the most extreme version of this. The pornographers who acknowledged at one point during the argument that like 70 plus percent of their content Yeah. would fall under any definition of this. Well, which raises one of my favorite moments in the argument where Alito was talking about how Playboy, for example, used to publish William F. Buckley and Gore Vidal, and he asked if the similar content was available on YouPorn. Is it?

And, you know, before this argument, we talked about how this is really going to be a battle of the precedents, the Ginsburg-Gurli magazine precedent from 1968 versus the Coppa, Reno, Ashcroft, Ashcroft II precedents, which are all about that same age-gating law passed by Congress in the 90s that's then decided in the early 2000s. David, I said this was gonna be a battle of the precedents.

It was even more a battle of the precedents than I think I thought it was gonna be. It was even more a battle of the precedents than I think I thought it was going to be totally part of what made this a slog. Well, and the other thing that I think the thing that made this a slog in some ways was actually an interesting component of the case. But the. The discussion was highly technical and somewhat abstract. And that component, the interesting component of the case is, okay, you have this form of speech pornography

that is protected as to access for adults and not protected as to access for kids. And does the fact that it is not protected as for kids impact which level of scrutiny should apply here, which, okay, goes to that question presented. But if the argument from the plaintiffs, the Free Speech Coalition here, is that it's strict scrutiny, doesn't that just totally gloss over the reality that we're talking about, something that is not protected for kids? because that would be the same level of scrutiny

that you would apply if you tried to ban it for adults as well. So if you tried to do a total ban, it would be strict scrutiny. And so then the argument is, but if you're only doing a partial age restriction, that's also strict scrutiny when there is no right of protection at all

for the children. And it's fascinating to me how much that really dominated the discussion after sort of the opening 15 or 20 minutes, which were much more cleaner, sort of sharper, going straight to the merits before we got to a long, complicated and often confusing discussion of the impact of strict scrutiny and whether, in fact, if you apply strict scrutiny here and rule for the kids or for age verification that have you watered down strict scrutiny. I kind of got into that part. I found that interesting. So should we table that for a second

and go into the first 15, 20 minutes or? You're running the porn, David. Oh, great. Thanks for that. Oh, the porn case I meant. Okay, yeah, the case, the case. Thank you for that. So here, what was fascinating to me was at the very beginning.

So you have the plaintiffs, the Free Speech Coalition, who are the first advocates up. And Justice Barrett goes in immediately with really the core argument sort of raised by Texas. Dives in immediately with, well, okay, wait a minute. If you look at the precedent, a lot has changed. Porn is different. The devices are different. Technology is different.

When we decided to cope a case in 2004, you didn't even have smartphones. They did not exist. And then she also raised the very point that you and I have talked about a lot, which is, okay, tell me why it's worse to submit your ID for online access when you have to do it for offline access. And if the burden, how should a lesser burden online be struck down when we have greater burdens arguably offline. So immediately they dove into that line of argument that we have talked about quite a bit.

And that's the point where the plaintiffs, in my view, were really struggling. They were really struggling with the online-offline distinction. But then I thought that they got stronger when we got to the core of the question presented, which is the tier of scrutiny. What tier of scrutiny here? And I don't know how you thought about this, Sarah, but I feel like rational basis review is off the table here,

that it's not going to end up being rational basis. The question I have, is it going to be something more like intermediate scrutiny or strict scrutiny? I don't know. There were a voter too at least for rational basis, Justice Alito being chief among them. It actually goes back to this crush video case, I think a little bit.

United States v. Stevens, this is from 2010, about 18 USC section 48, knowingly selling depictions of animal cruelty with the intention of placing those depictions in interstate commerce for commercial gain. If you don't know what a crush video is, you can either read Justice Alito's dissent in that case, or absolutely never, ever need to know that fact,

because it's truly horrific. That's an eight one case, David, where the eight strike down that law as being overbroad and infringing on the first amendment. And you have Justice Alito basically saying, this is not protected content. This is absurd. And he describes in great detail

what that unprotected content is. I happened to read it last night, made me nauseous. Justice Alito and I are both animal lovers, so perhaps it hits a little harder. Awful, awful stuff. Just should hit decent people hard. Yeah. I think you will notice Justice Alito's writing feeling a little different when he's talking about animals

in that case, which is interesting as well. So fast forward to porn for children. And the through line here is, is it First Amendment protected at all when we're dealing with sort of a vulnerable population, if you will, be it animals or children? And Justice Alito really consistently throughout the argument, I thought David made the case for why it's rational basis. And he's looking at Ginsburg, that 1968 precedent, and basically saying like, are you telling us we have to overturn Ginsburg?

Because I don't see how this isn't just directly Ginsburg. Ginsburg in the physical world, you know, an adult who wants to buy that magazine has to show an ID. That has a chilling effect. That is a burden, right? It's embarrassing. Similar to any man who's ever needed to buy tampons at the checkout counter. It's just a little bit of a chilling effect, right? Yeah, a tiny chilling. I have felt that chilling effect myself. You like self-checkout in those moments. You'd prefer not to go through the line. So certainly there's a

burden in the physical world and he's saying, yeah, and that's the burden in the online world. It's maybe a different burden in some ways, instead of being embarrassed, it's the burden of providing that information and it could be hacked the same as any other website can get hacked. So he was making the case for rational basis. I agree with you, David, that I didn't think there were enough votes for rational basis to go with him, but I wouldn't be surprised to see a concurrence from him. I agree with that. I felt like, on the one hand, the compromise, the obvious compromise is

intermediate scrutiny. But justices don't like to log roll, right? They're not going to say like, well, you want rational basis, I want strict scrutiny, let's just do intermediate scrutiny, because this isn't a legislature. So I don't know in the end whether enough justices actually believe it gets intermediate scrutiny, but the fear over watering down strict scrutiny is real, right, because the idea is if this is strict scrutiny, but, and basically, but in order to find it strict scrutiny,

they all have to agree it passes strict scrutiny. So strict scrutiny is then no longer fatal in fact. But okay, let's pause on that. Okay. Because that's a proverb. It's not a- It's one that Justice Barrett used from the bench. She used it for sure.

Yes, absolutely used it for sure. But when you're talking about sort of a proverb or a saying- I know. If it's strict scrutiny is actually fatal in fact, then it's a bar. It's just a bar, right? Right, we don't need a balancing test then. But didn't this whole case feel to you, like a little bit, we need a new name for it,

but it's a version of the bad man stays in jail doctrine. It's a, this law has to be constitutional. So why is it constitutional? There were some elements of that, yes. And this was one of them, right? Like, well, this has to be constitutional, but because it is content-based and because it is then a burden on getting to that content,

hard to see how it's not strict scrutiny. But if it's strict scrutiny and the law has to be constitutional, then it has to be, everyone agreed it was a compelling interest, but it has to also be narrowly tailored in the least restrictive means to meet that compelling interest. And so then you're going to open up every other law that is remotely similar to Gating content of any kind whether children or otherwise and now all of those are going to be held to strict scrutiny What if some of them don't pass and that's the fear of what watering down strict scrutiny means a little bit that all of a sudden either a bunch of laws are going to be unconstitutional because they're going to be held to strict scrutiny and not

meet it. Or strict scrutiny doesn't mean anything anymore because as long as we're all like, ah, compelling, yeah. I mean, that's compelling to me. Then it passes. Well, and the interesting thing about this case was that everyone was up there saying the government has a compelling governmental interest

in preventing kids from seeing this stuff. Correct. Which, interestingly, I think, for the porn industry, I think, saying the government has a compelling governmental interest in preventing kids from seeing this stuff. Correct. Which, interestingly, I think for the porn industry, I think is a bit of a concession over time. But what was very clear was that the justices were keenly aware of the technological changes and the changes in the nature of porn.

That this was not, we're not talking about girly magazines in the brown paper bag anymore, brown paper wrapper, we're talking about unbelievably graphic stuff. And so they're all aware of this. I could count to seven, it seemed like, of the justices that seemed to be very hospitable towards the age verification concept. It was just, what is the test here? And what's fascinating, and the other thing that's fascinating to me about this, Sarah, is there seemed to be, the dominant discussion was over the tiers of scrutiny, strict, intermediate, rational basis. Ding, ding, ding.

Didn't seem to be, there was mentions of tradition, for example, but this did not seem to be sounding in a text history and tradition method here. This was- And yet, I also felt that it most exposed the problems with the tiers of scrutiny. Are they even useful anymore when we're like fighting over some of this stuff?

That's fascinating. Interesting. Okay. I'm with Justice Alito that to me this is a direct extension of Ginsburg, right? That was in the physical world. This is in the online world. And he even noted, he went back and of course read the oral arguments and all of that. They made the argument that this was a burden on the adults trying to also get girly magazines. So it's like literally the same stuff. And they used rational basis. So unless you use rational basis, you are overturning Ginsburg. Interesting. And that interesting. Now, I had a different feeling about the strict scrutiny

conversation because I thought just looking at this case in isolation compared to the COPPA case in 2004 where it was compelling governmental interest, but you need to consider the less restrictive means of blocking and filtering. I felt like this could fit within COPPA and you could say there was compelling governmental interest as acknowledged in COPPA, and the least restrictive, the less restrictive means proposed in COPPA have proven utterly ineffective. They're not restrictive at all as a practical matter. And Justice Kavanaugh made that point, that in fact, the least restrictive means still need to fix the compelling government interest.

It can't just be the least restrictive, ineffective means. Exactly. It can't be, I can think of something that some individual parent might be able to use that could increase the chances of their kids not having exposure to porn. But when some of the evidence before the court was that a majority of minors report having

inadvertent exposure to porn, accidental exposure to porn, then obviously blocking and filtering is just ineffective. It is, now I'm not gonna say ineffective for every human being, but ineffective for the social problem it is seeking to address. But this will be too.

The kids are just gonna spend two bucks and get a VPN and get right around this. No, I think it will not. I think the better way to think of it is it's won't be foolproof, but it will be better. Okay, so we have Batman Stays in Jail Doctrine. David, I would like to propose a new doctrine. The kids don't get porn doctrine.

Kids don't see gross porn. Yeah, there's going to be. Yes, exactly. So in terms of how this will come out, Justice Sotomayor and Jackson seem the most interested in striking down the law in some respects. Justice Kagan, sort of not the swing vote, because we're not at four or five here, but I could see Justice Kagan joining the majority to direct the majority, if you will. So I think we're looking at a seven-two, but there could be concurrences, as I mentioned, from Alito, for instance, concurring only in the judgment. But nevertheless, upholding the law. You also had Justice Kavanaugh with his, Justice Kavanaugh, man, such a nerd,

all over the procedural part of this. So basically his point is, if you vacate the Fifth Circuit's decision, which did this on rational basis, upheld the law on rational basis, what would then automatically happen is the district court's injunction against this law would go back into effect,

meaning you could not age-gate pornography in Texas. And so he was concerned about that. And what I heard from the various actors was like, yep, and that's when you rush to the Fifth Circuit and ask for an injunction to stay. You ask for a stay to stay the injunction from the district court, so like, don't worry about it. But some of the procedural stuff got messy. So I think you could see some stuff there. Definitely Justice Kavanaugh, I think, was interested in vacating the Fifth Circuit, but staying the injunction themselves so that the law was still in effect in Texas. But again, that tells you how much the kids don't get gross porn doctrine was, I thought,

doing some real lifting here. And it was not a normal First Amendment case where you're sort of coming at this from first principles, unless your first principle is the kids don't get gross porn. And I think that was so clear to clear to me Sarah that even if the court decides wait okay this this isn't rational basis review and we're just going to remand it for reconsideration under a different standard it will not be a blank slate remand it would be more

like net choice where we've talked about where the court essentially said here is what the constitutional standard is, and we're remanding it to you. Pay attention to everything we just wrote. Yeah. And again, I could even see Kagan writing this one as well, as she did NetChoice in breaking with the Jackson-Sotomayor issue over there. I could also see Jackson and Sotomayor for what it's worth concurring, but it's sort of a concurring in part, dissenting in part type idea. But yeah, David, when those doctrines are in effect, the arguments tend not to be very illuminating, if you will,

because there's something hanging over all the argument, which is obviously this law gets to stay in effect. Yeah, exactly. I mean, the first 15 minutes, really, as we said, you're getting, you are absolutely getting your preview of where, the first 15 minutes, I was counting to one, to two, to three, to four, to five, to six, to seven, like really fast on this doctrine

of kids don't get to see gross porn. Okay, let's go to the Ninth Circuit. This was a fun case, Project Veritas versus Schmidt. It was an en banc decision upholding Oregon's law that says a person may not record a conversation unless all participants in the conversation are specifically informed that they are being recorded. So this law is not new.

It goes back, depending on how you wanna look at it, but like at least the 1950s in Oregon, David. But what it's gonna prevent is everything people do on their phones these days. I mean, right? Like if you're like just recording two people having a fight as everyone does now, right? Like people don't even stop to break up the fight.

They just stop and record it on their phones. Annoyingly. Oh, which can we pause there for a second? If you're watching a fight unfold and people are getting hurt and you're an able bodied human, don't record it. Break it up. That's all you see, though, right, David? You literally see people recording the other people recording the fight or the person saying the mean thing to the other person or it's on the subway or it's on the sidewalk. Anyway, all of that's illegal in Oregon.

So now Project Veritas comes along. This is what they do, right David? They do undercover journalism. So someone is wearing a microphone while talking to someone in power, and that person does not know that they're being recorded. Project Veritas challenged this law because they basically can't operate in the state of Oregon, and they argued that it violated the First Amendment. The en banc court, the majority held that it did not, but we did have a dissent from Judges Lee and Collins. I told you my amazing story about Judge Lee

back when I was in law school, right? He was working in the White House Counsel's Office along with this woman and we had all gone out, a big group of us, and she and I did not get along. Let's just say that. It did not go well with she and I. And I get this letter from her in the mail around Easter and it says, hey, Sarah, I'm so sorry the

last time we saw each other, things got off on the wrong foot. I take responsibility for that. I was rude. I was obnoxious, blah, blah, blah. To make amends, here is a wooden egg from the White House Easter egg roll. I hope it brightens your day a little. Enjoy the rest of 3L year. And then you turn it over to the back and it says, just kidding, she hates you. Love, Ken Lee. That's amazing. Who's like the best troll ever? I still have the egg. I love it. Okay. So here is Judge Lee writing, journalists, as well well as regular citizens routinely record the powerful

and the privileged behaving badly. Today's decision imperils the right to capture such abuses of power and other newsworthy events. Oregon does not just ban surreptitious recordings that may implicate privacy concerns. It also criminalizes audio recording someone, even conversations in public with no reasonable expectation of privacy.

If not all participants in the conversation are specifically informed that their conversation is being obtained. So, for example, a citizen in Oregon cannot lawfully audiotape a public official berating an employee at a Chipotle or uttering a racial slur on a public sidewalk unless the citizen expressly tells that official that he is being recorded. We have held that the First Amendment protects the act of recording as an inherently expressive activity. The majority opinion, however, upholds the Oregon law under intermediate scrutiny, ruling that the law is narrowly tailored to further the government's important interest in conversational

privacy. I respectfully dissent because Oregon's law is grossly overbroad and not narrowly tailored to advance the state's interest in conversational privacy, even assuming intermediate scrutiny applies. Oregon prevents citizens from recording even in public areas if they do not announce that they are audio taping. Oregon thus tramples on people's ability to record and report on a large swath of public and newsworthy events. And because the law bans the taping conversations where there is no reasonable expectation of privacy, Oregon's statute is not narrowly tailored to further the state's interest in conversational privacy.

In any event, Oregon's law should be subject to strict scrutiny, not intermediate scrutiny, because the statute is not content neutral. The statute has a law enforcement exception that allows citizens to legally record law enforcement officials, but no one else, without announcing that they are recording them. Oregon has essentially carved out only law enforcement matters from its ban on unannounced recordings. Because this is a content-based restriction, strict scrutiny applies, and Oregon's law must fall to the wayside. I think it's bizarre, David, this idea that Oregon has criminalized what everyone does all the time, which is record things in public.

I think the dissent is exactly right. And I would amplify a bit because I think this is actually, and I'd love your thoughts on this, because I'm so glad the judgment mentioned the press here. So one of the interesting things about the First Amendment is, so here's the text, "'Congress shall make no law of respecting an establishment of religion or prohibiting the free exercise thereof, or abridging the freedom Amendment is, so here's the text, Congress shall make no law respecting an establishment

of religion or prohibiting the free exercise thereof or abridging the freedom of speech or of the press or of the right of the people to peaceably assemble. So there's long been like discussion as to what's the difference between freedom of speech and freedom of the press. And this might be one of those examples. Oh, that's such a good point. Because this is a absolutely classic press function. Now, to be clear, I don't think that is limited to credentialed journalists. So, for example, if you're recording, if you're

a citizen and you're recording a terrible fight that occurred, that is a classic press function, recording a public event that is of public interest. And so all kinds of citizens record that stuff and they'll often sell it to members of the press or they'll put it on websites that are then picked up by members of the press. So I feel like this is one of those areas where freedom of the press,

where you might actually see some distinctiveness around freedom of the press or should see. Such a good point. And David, you know, I'm sure you've done this before. Or do you have memorized which states are two-party consent states versus one-party consent states? I know the ones I've had to deal with legally. Yeah, I mean, I don't trust my memory.

I look it up every time. Me too. Just, you know, you just want to have that at your fingertips. And that includes calling, obviously. Now, here's what's interesting, Sarah. As both, we're both lawyers, members of the bar. We can't record without consent under rules of professional ethics. Ruh-roh.

Yeah. Now, that might vary by state, but in my states, the rule, when I was engaged in full-time practice, the rule was very clear. Remember, the bar could not engage in surreptitious recording. Well, that's good to know. Yeah. Huh. Okay. Okay.

Putting that in my pocket. So for those listeners who were like, what has Sarah done? So as a, generally, if you are a staffer, a communications staffer for a principal, you are always recording everything that they say, just because you've seen it happen, right? So and so in conversation said this horrible thing and there's no recording of it.

And so like this person goes on TV and accuses your boss of saying something. And so then you can pop out the recording and say, actually, I have the recording of that. But you can't tell everyone they're talking to that you're recording them. It would be weird. And for a lot of members of the public

who are just trying to interact with your boss, I think it would make them feel really stilted and it would kind of chill their conversation, which is not the point. I'm never gonna use this recording. I'm never would make them feel really stilted and it would kind of chill their conversation, which is not the point. I'm never gonna use this recording, I'm never gonna make it public, unless someone else has some version of it that is false. Right.

But so, yeah, I think I've maybe just confessed to general criming, according to you. General, but it's not criminal. Ethics complaining. And it depends on the jurisdiction. I mean, this is, you know, there was, I believe if you're gonna go back, I did a quick little burst, a quick little Google burst,

a little Google foo. And this goes back to a 1974 ABA formal opinion. Well, luckily about the statute of limitations has very much run on that. David, I wanna finish talking about the Lakin-Reilly Act. This is a bill that is getting bipartisan support in the new Congress, Democrats, and Republicans. On board with an immigration bill? How is this possible? It is obviously named after the young woman who was killed by an undocumented immigrant. And in short, it says that any undocumented immigrant charged with theft-related crimes,

including minor ones, for instance, must be detained. But we've run into these problems before, David. Shall be detained, but no additional beds. So there's roughly, I don't know, let's say 11 million undocumented immigrants in the country. There are 40,000 beds. So the Lake and Riley Act is really easy, clearly, for both sides to support.

And Democrats obviously see a political benefit to being able to say that they supported this. But with only 40,000 beds, everything's a trade-off. So now you're holding someone who shoplifted from Sephora, but you're having to let go someone else who did something else that's more serious than shoplifting lip gloss. So what are we supposed to do? Yeah, and it's, it really is,

and there's also this interesting issue of, you're detained if you're charged, even if you're innocent. And so, you know, that there's, unless I'm misreading the act, there's no bail available. Correct, and in fact, that is a key part of it. No bail available just based on charges. So for instance, those charges could be based

on a false witness. Someone could threaten to bring such charges against you, falsely, just for the purpose of coercing you, for instance. Like there's some bad stuff here. Yeah, yeah. And then the point that you raise, well, it must be detained when there's 40,000 bet, it's a limited universe of people, and there's no funding for new construction of

detention facilities. I mean, what are we doing here, Sarah? What are we doing here? It just feels like deja vu all over again. You know, how many, how many immigration bills, aside from the one shot down last year, that was going to actually provide some very concrete fixes to the very concrete things broken in the asylum system. This is this is just this is a political stop. It's not a it's not a solution. It's not a solution. Can I tell you what bill I'd support? Yes, please. Any undocumented alien who has been charged with a crime, I think I'm probably just fine with all crimes, including these minor ones, must be detained.

And all money will be available to build additional resources to do that. That at least would keep violent people charged with violent felonies in detention. You know, I am, the bail issue is real to me and the being detained before trial is real to me. But of course, a normal system would be that yes, if you're an undocumented alien, you have an enormous flight risk. So yes, we are going to detain you before trial. And then the trial would happen quickly, something that also doesn't seem to happen in this country.

And then upon conviction, you would immediately be shot also doesn't seem to happen in this country. And then upon conviction, you would immediately be shot out of a cannon back to your home country, which is another problem because these countries are refusing to take their convicted criminals back, which was part of the problem here in this case. Venezuela, the country where the murderer was from, didn't want him back because of course they didn't.

Why would they take him back? So there are so many broken pieces along this path. I would love to fix them all, but fixing only this one piece seems like a problem. And I'm with you. I mean, so have a standard, increase the number of beds, but here, let me add an additional tweak to your proposed law.

The tweak is because you can't build beds automatically immediately, it takes a while. And 11 million would be hard to do. Create a hierarchy of criminal charges so that if you have to make choices, once you reach your bed capacity, that if someone is, you're not gonna release an armed robber because the statute requires you to imprison somebody

or detain somebody who stole a bag of Skittles. It's just not that hard to do that, David. Yeah, it's just not that hard. Like, you shall detain every undocumented alien charged with a crime. If you do not have space, then the first, and then you're right, you just list them. You just list them.

And it's one in, one out. And this isn't rocket science, guys, it's not rocket science. But this goes, I mean, just to preview, my newsletter that's coming out, that will be in your inboxes if you subscribe by the time you listen to this podcast. It's about we, the political future of the United States should belong to the competent. listen to this podcast, it's about we, the political future of the United States should

belong to the competent. And we have a competence crisis in this country. And this is, I feel like this is an example of that, that can't we think about this for five seconds? Because then if you raise your hand and you say, wait, I got some problems with this act, then it's like you're soft on illegal alien, you know. No, I want to be harder. So, great episode, David. Let's preview what's coming up. First of all, our next scheduled episode will come out on Tuesday,

and it will be our episode on legal academia. However, we are expecting a Supreme Court decision in the TikTok case, probably Friday, maybe Saturday. We will record an emergency pod when that comes out. No need to tweet at me. I'm already telling you. You'll be tweeted at anyway. Okay. That's the plan right now. Then, David, for our next case-based episode,

I just want to tease out that we have two really fun questions. One, imagine I have a bucket list item to get my name on a Supreme Court case so I could potentially hear my name in legal conversations like Dobbs or Tinker. What would you recommend? And I've got answers. So we'll be addressing that.

And another one, which I found really delightful, and David, I want you to think about it here. A high school student in France has chosen to look at how and if the Supreme Court, the United States Supreme Court has upheld the original ideas of the American dream as defined by the Declaration of Independence and later by James Truslow, a person I'd never heard of. Okay.

So I want you to ponder that question. So this comes from a French listener. Yes. Do you realize that we are now a settler colonial entity and we are colonizing France? As it always should have been. Of course, of course. So those are the two questions that we will answer on next Thursday's episode.

You'll have an emergency pod between now and then. You'll also have an amazing fun pod on legal academia with Professor Joel Alessia and Judge Trevor McFadden. Ooh, ooh, ooh Yeah! Ooh, ooh, ooh