Advisory Opinions - Originalism of 'Moral Substance'

Episode Date: March 22, 2021

On today’s action-packed pod, our hosts start with an interesting certiorari grant to U.S. v. Tsarnaev, the Boston Marathon bombing case. The appellate court overturned the trial court’s death sentence for Dzhokhar Tsarnaev on the grounds that 1) the trial judge did not ask the jurors about their pretrial media consumption, and 2) that he did not allow evidence about the his brother Tamerlan’s alleged involvement in a previous murder to inform the case. Tamerlan Tsarnaev died in a shootout with police after the 2013 bombing. Sarah and David give us their predictions on how the Supreme Court is likely to rule. Also in the hopper for today: Our hosts introduce us to a union case and discuss speculation surrounding Justice Stephen Breyer’s retirement, a D.C. Circuit dissent by Judge Laurence Silberman, the MAGA right’s rejection of originalism, and best picture nominee Promising Young Woman. Show Notes: -U.S. v. Tsarnaev. -Massachusetts Lobstermen’s Association et al. v. Gina Raimondo, Secretary of Commerce, et al. -Antiquities Act. -Christiana Tah and Randolph McClain v. Global Witness Publishing, Inc. and Global Witness. -New York Times v. Sullivan. -“A Better Originalism” by Hadley Arkes, Josh Hammer, Matthew Peterson, and Garrett Snedeker in the American Mind. -“Zack Snyder’s Justice League and America’s Second-Greatest Superhero Trilogy” by David French in The Dispatch. Learn more about your ad choices. Visit megaphone.fm/adchoices

And if you're just joining us, we're live from Evan's living room. It looks like Evan is about to purchase tickets to today's match. Kate, the real test is, will he use the BMO Toronto FC Cashback Mastercard? Well, if he wants to earn cashback on his purchases, he will, and... Oh, hang on. He's at the computer with his card, and he's done it! Oh, clicky-click magic trick! The clicker around the room! You guys just about finished?

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food safety requirements. We work with animal care experts and work towards a sustainable future. That's Dairy Farming Forward. You ready? I was born ready. Welcome to the Advisory Opinions Podcast. I always say this, Sarah, that we have an action-packed pod. I always say it. We really do. Oh, man. We really do. We really do. Okay. We've got a lot. All right. Sarah's going to introduce you to a union case that's being argued that we'll talk about Thursday where we can listen to the whole thing. We're going to talk about the Justice Breyer retirement speculation. We're going to talk

about a DC Circuit dissent by Judge Silberman that set the conservative part of the internet on fire. We're going to talk about domestic terrorism and hate crimes. We're going to talk about MAGA originalism, or shall we say the rejection of originalism, my MAGA legal advocates. And then we're going to wind up talking about the Oscar-nominated movie that I wanted Sarah to watch and that she watched and she has thoughts about called Promising Young Woman. And then we're also going to throw in a bonus quote from a very spicy Justice Roberts. And a little bit more than that, too, right? Sarah, there was an interesting cert grant today.

Yes. Yeah. So let's start with the cert grant. The justices granted the U.S. versus Tsarnaev. If that name sounds familiar to you, it's because he is one of the brothers who was responsible for the Boston bombing. His guilt is not in question, but the appellate court overturned the death sentence. And their reasons, I mean, they had to stretch for these reasons. So one was that in this massive voir dire they did

interviewing all the jurors, the appeals court found error in that they didn't, the judge, the trial judge didn't ask the jurors specifically what news they had consumed, like listing, you know, which news sources they had ever heard about the case from. And second, that they, the trial judge did not allow evidence about the other brother's involvement in a previous murder, which in theory could have shown that he was really the worst brother. acknowledged his guilt. So that's not an issue, but you have to redo the whole sentencing phase, which would be a, I mean, a huge undertaking. So the government filed for cert, the Department of Justice under the Trump administration at the Supreme Court. And I just read you a couple things here because I think it'll go to what the outcome of this will certainly be. I just read you a couple things here because I think it'll go to what the outcome of this will certainly be. The decision below improperly vacated the capital sentences recommended by the jury and imposed by the district court in one of the most important terrorism prosecutions in our nation's history. and inflexible voir dire rule that denies district courts the broad discretion to manage juries that this court's precedents provide dot dot dot dot i'm going to skip some stuff although the court

of appeals errors are largely case specific the context of this case makes them exceptionally significant so david you and i have talked that cert petitions are usually about circuit splits or sort of these intractable issues that will keep coming up over and over again. This is sort of that third bucket of, yep, there's not likely to be anything else that's like this. There's no circuit split, really. It's just that the case itself is so dang important. And the Boston bombing is certainly one of those things. This will be a 9-0-8-1-7-2 is the lowest I'll go, overturning the appellate court and finding that,

of course, the district court has broad discretion when it comes to voir direing potential jurors. That's a bold prediction. On a death penalty case, an 8-1, 7-2. I don't think this is, I think you'll have concurrences that are like, I don't like the death penalty. Right. But this isn't really about the death penalty. This isn't about cruel and unusual. There are vehicles for that. This ain't it. This is on the discretion of trial courts, This is on the discretion of trial courts, which is a piccadillo of Supreme Court justices to not get into the biz of trial court judges. So, yeah, this is a case, I'll agree with you, it screams for one of those where the Democratic nominees will not all be in lockstep. It might go in the charts of one of those circumstances where the three disagree.

Yeah, you could have Kagan Breyer peeling off into one direction and Sotomayor in the other easily. Well, we will keep an eye on this and we'll see if Sarah's prediction is correct. I'm going to say, I'll probably say 8-1. You know, this feels like one where Kagan and Breyer, yeah, I agree with you. Okay, can we do a little quick note on the spicy John Roberts? I would love to. Well, not really spicy, maybe a little sarcastic.

So this case, which I've never heard of, but popped on my radar screen today, is Massachusetts Lobstermen's Association versus Gina Raimondo, Secretary of Commerce at OWL. At issue is a designation of a national monument. So there is a cert denied, so we won't be talking about it anymore. The case is done, but Justice Roberts disagreed, and he began his opinion like this. Which of the following is not like the others?

A, a monument. B, an antiquity designed as a relic or monument of ancient times. Or C, 5,000 square miles of land beneath the ocean. If you answered C, you are not only correct, but also a speaker of ordinary English. I love that. In this case, however, the government relied on the Antiquities Act to designate an area of submerged land about the size of Connecticut as a monument, the Northeast Canyons and Seamounts Marine National Monument. It is actually an interesting case. I mean, apparently there were restrictions placed on fishing and all of this, and that

these restrictions were later lifted during the litigation. So it's sort of a classic, hey, these restrictions were imposed. They don't exist anymore. Why hear the case? But I just like that. I just like that. I just like that. By the way, I spent this past weekend partying with some folks from the Environment and Natural Resources Division at the Department of Justice, who are the ones who filed in opposition to this

cert petition. So I'm sad that I don't get to like see all their bright and shiny faces today as they get handed down this decision but um fun times all right now back to you Sarah a union argument is happening today okay so we almost delayed this podcast so that we could just listen to the argument live and then bring it to you fresh off the presses. It's a close call because this is an exciting case, like on a lot of different levels with far-reaching implications. But, but, I'm going to get a grip on my horses and we're going to hold it to Thursday so that we can marinate in it.

I can read it a few times, listen to it. I mean, I'm going to bathe in this one, guys. So, California has a regulation that allows union organizers to enter the grounds of an agricultural employer to speak with employees about supporting a union. They can come on for three non-consecutive hours a day before work, during lunch, and after work, each one of those being an hour. And here's the clever part. We have two California growers who are arguing that this violates the Fifth Amendment, the takings clause.

That is some creative baseball, I will argue. It is indeed. There's such a thing as regulatory taking. And there's like an actual taking. They are not going the regulatory route. They are arguing this is a full on, full force taking of their land, which I mean, this has huge implications. So, for instance, there's other laws that say government health inspectors can come into your restaurant unannounced. Well, would that be a taking also?

So this is going to get exciting. This is going to be a big argument. And I mean, we talk about distortion effects. Union stuff has been a mini distortion effect. And there have been several cases that the court has taken in the last 10 years, let's say, that have chipped away, particularly though at public sector unions. This is not a public sector union case. So it's going to be exciting. We'll save it to Thursday. I'm ready. Yeah. And those advisory opinions, listeners who have been with us for a while will remember we had an entire podcast, most of a podcast dedicated to takings.

But sadly, it was regulatory takings, not relevant to real takings. But that's a bold argument. I look forward to reading it. That's going to be absolutely fascinating. Yeah. I mean, regulatory tak it. That's going to be absolutely fascinating. Yeah, I mean, regulatory takings are like strict scrutiny in reverse. Like if you argue something's a regulatory taking, you've already lost. So that's why they're arguing that it's a real taking.

But we'll get into all that. Lots, lots of funness. All right. Also, the Internet has been steaming, percolating, bubbling, especially on the left side of the internet with some rather urgent requests that respectfully and sometimes not so respectfully that Justice Breyer retire post haste quickly. Right. Normally, you know, folks expect retirements to happen in the summer. And so there's just a lot of speculation of like, will he, won't he, as we get closer to June. This time, however, the argument is, look, Democrats have a one seat majority in the Senate and not really, right? It's tied.

The seat majority is actually the tie-breaking vote from the vice president. And therefore, if, you know, Joe Manchin gets hit by a bus, they don't have the majority anymore. And that would make confirming, that would really change who Biden could nominate and potentially change whether anyone could get

confirmed. So New York Times guy jumps out in front of the bus and is like, retire now, Justice Breyer. And this has launched a thousand ships. Yes. And the reason why we should also say is there's a hovering in the background is the reality that there are people who urged Ruth Bader Ginsburg to retire during the Obama administration. And she steadfastly did not. And there is a sort of a fresh wound over that, how that all of that played out. how all of that played out. So number one, Sarah, I would say I would fall out of my chair in absolute shock if Justice Breyer retired before the end of the term. Not going to happen. It's not even a close call. They need to stop saying it. And it's not just me saying that if you want Justice Breyer to retire this summer, stop telling him he needs to retire on Tuesday.

Noah Feldman, one of my professors from HLS. But after your time, David, in that 50 year gap or so between our HLS tenure. 50 year gap. He was a suitor clerk, so not a Breyer clerk, but he nails Breyer. I'll read some of his op-ed that he wrote. Throughout his career, Breyer has believed that ideology and party are far less important than clear thinking and smart regulatory policy that makes people better off without costing more than it's worth. This perspective, blah, blah, blah. If Breyer has an ideology, it is the rejection

of ideology in favor of pragmatism. The more the timing of his retirement is depicted as a partisan objective, the less he will want to do it. To be seen to retire in order to let Biden pick his successor would betray Breyer's own career-long objective of making decisions based on what is right for the country, not for one party. I mean, don't dare him to do it. And I think this actually holds true for Ruth Bader Ginsburg. I think it holds true for a lot of these folks, if not all of them. They don't want to be seen as partisan actors. So the more that you say, if you do X, which I want you to do because it's in my partisan interest, the more they feel

like they have to reject that. So I think all of this Breyer talk could have the effect of pushing him not to retire this summer. I think he still will, but I don't think it's a 90% chance. I agree with you completely. Also hovering in the background is we always forget. And why, what I, what I like about the op-ed you just referenced is here's somebody who knows, maybe knows him pretty decently, sort of just saying, hey, here's, here's who the guy is, which I think is, you know, we always have to remember that these people are human beings. we always have to remember that these people are human beings. And they're not sort of ideological totem pole or automatons who just, they're going to do what they're going to do and what's according to the best ideology, yada, yada, yada. There's also another human factor in play. And I can't remember if I've mentioned this before on the podcast, but I've heard this from now a number of individuals in a position to know who said that Sandra Day O'Connor really regretted retiring. And that there is, so here you

have somebody who was, who retired after a long and distinguished career, who was at the age of retirement, but then realized that they had more in the tank. And, you know, so I, a lot of it depends on how, how do you feel, you know, do you, you know, do you think you've got more in the tank? Do you like the job? I mean, there's a lot to it that's just like really human in the way that we think about jobs ourselves and the way we would think about our own career. And so, yeah. So number one, retiring during the term, absent some sort of health issue that we don't know about, no way. Retiring at the end of the term, possible, but I'm not betting on it. Oh, really? So I am betting on it. I think it's over 50%. I just don't think it's 90%.

I think that, you know, and Feldman, let me just read you the end of Feldman's thing. Feldman kind of nails this. What Breyer needs and deserves is room to maneuver, to find the best

and most rational way to satisfy the complex competing interests around his retirement. The good news is that's his expertise. The liberal legal commentariat should stand back and let the master operate. He knows what he's doing. Don't make it harder for him. Breyer saw what happened with Ginsburg. He's not a dummy.

He also knows what 2022 means potentially. Now, could he retire next summer instead of this summer, still ahead of the 2022 election? Sure. But, and I love this little nugget, a few weeks before Justice Ginsburg passed away, his sixth grandson was born. His sixth grandson was born, and she sent a little onesie that said, future law clerk for RBG, which is so cute. He has a life. He has a wife. He has grandchildren. I think that Justice O'Connor retired in part because her husband was ailing, that Justice O'Connor retired in part because her husband was ailing and to take care of him. He passed away shortly thereafter. And so she was riding circuit for a little bit. She was giving speeches. She was writing books. It's a different situation. And I think that trying to force him to retire now, not going to work and could make him less likely. But the fact that it's March and June slash end of July is a long way away. The normal will he won't he will ramp up in May and that will be okay. Yeah.

Yeah. That'll be a lot more normal. That'll be a lot more normal. Here come the carrots making their way upfield, followed by the whole wheat bread over to the two dozen eggs. Sir, do you do this every time? Sorry, I've been a little excited ever since I got this BMO Toronto FC cashback MasterCard. Oh, and the broccoli boots it over the line. What a goal! How would you like to pay, sir? Credit, please. Make every purchase a win with the BMO Toronto FC cashback MasterCard

with up to 5% cashback on your purchases in your first three months. Terms and conditions apply. All right. Next topic. So, you know what's rare, Sarah? Well, many things are rare. Lots of things are rare. But you know what I'm thinking about is rare?

I mean, I'm thinking of white rhinos. What are you thinking of? Well, that reminds me just a funny story for a second. We're playing a game with my father-in-law. This is years ago. And it was one of these, oh gosh, what was it? I can't remember which one it was, but it's essentially you're trying to give hints like a game like Password or something like this. Oh, Taboo. You can't use the words that are on the list of words to describe what you're trying to hint at. And he began his hinting with, you can buy this at Walmart, which is basically it could be anything. So you know what's rare?

The answer to that is anything that's rare. But what's rare is that when a circuit court dissent gets people really riled up, a circuit court dissent. But you know what's predictable, Sarah? When that circuit court dissent is railing on big tech and the liberal media in the same way that a 28-year-old new right Twitter warrior does.

And that's what happened last week. Really interesting. And I think it's worth talking about because it really did launch a big discussion. The case is Christiana Ta and Randolph McLean versus Global Witness Publishing, Inc. and Global Witness. And basically, at issue was,

there were two Liberian officials. They claimed that this Global Witness, which is an international human rights organization, I'm just going to read from the introductory paragraph. In this defamation action, it's a defamation action, two former Liberian officials alleged that Global Witness, an international human rights organization, published a report falsely implying that they had accepted bribes in connection with the sale of an oil license for an offshore plot owned by Liberia. The district court dismissed the complaint for failing to plausibly allege actual malice. For the reasons set forth in this opinion, we affirm the First Amendment provides broad protections for speech about public figures, and the former officials have failed to allege that Global Witness exceeded the bounds of those protections. Now, the facts of the case are

not super interesting. There was a series of payments approved for some Liberian officials through an actual formal process that didn't really look like a bribe, but was labeled a normal New York Times v. Sullivan type analysis. And so as I read, the Liberian officials lost their case, but there was a dissent. And the dissent by Judge Silberman kind of had two parts to it, Sarah. One part pretty pretty rigorous, but not as interesting. And another part, pretty ranty,

and what made everybody excited. Part one of his dissent, he basically went through the evidence and I thought did a pretty effective job at poking holes, using existing precedent in the majority's conclusion that the librarian officials didn't really state a claim. I thought he had a pretty compelling

fact and law-based argument that the case should have proceeded. I thought it was a good argument. But then he changed gears and he basically expressed, and this is exactly a word that he used, his disdain for existing Supreme Court precedent, called for the overturning of New York Times v. Sullivan, noted that Justice Thomas has called for the reversal of New York Times v. Sullivan. And for those who don't know, New York Times v. Sullivan is a Supreme Court case that years ago set up a higher burden of proof if you're going to make a defamation case or make a defamation claim against a public figure. And so he said that's not grounded in

the history of the Constitution. And if you think I was giving fake news when he used the word disdain, he says, to the charge of disdain, I plead guilty. I readily admit I have little regard for the holdings of this court that dress up policy making and constitutional garb. So he attacks New York Times' C. Sullivan in sort of familiar legal language. But then he goes on and says, and it's basically especially important now because of all the bias against Republicans in the media and in Silicon Valley. In other words, basically, like, right Twitter's entire beef against the media was packed into the closing couple of pages of his dissent. I have thoughts on it, but after that setup, I'm eager to hear yours, Sarah.

entirely reasonable, not for the reasons he has in part two, but for very much the reasons he discusses in part one, that New York Times v. Sullivan has maybe been stretched further than it needs to. The actual malice standard has been unovercomeable if you're a public figure, and that perhaps we should tighten that up a little and that actual malice maybe needs to be less of a hurdle and more of a healthy step, a big step, one that toddlers couldn't do, but that full-grown adults can hop that step. Now, in part two, however, the idea that we basically just want to get rid of any protection for mistakes that the press may make and get rid of New York Times v. Sullivan, so you don't need to prove actual malice. You just need to prove that something wasn't true. Alice, you just need to prove that something wasn't true. That's a problem. I mean, it's just practically a huge problem. Now, he walks through his own, what he thinks was a distortion effect

of the time, of how New York Times v. Sullivan came about. So I'm going to read you his recitation of how New York Times v. Sullivan came about. And then after we talk about the standard he wants, I want to come back to, so how would New York Times v. Sullivan come out and why is that okay? All right. The case centered on a full-page advertisement soliciting donations for the civil rights movement and legal defense of Dr. Martin Luther King Jr. The advertisement claims that civil rights proponents faced a, quote, unprecedented wave of terror from, quote, Southern violators denying constitutional guarantees to African-Americans. It described, quote, truckloads of police armed with shotguns and tear gas that, quote, ringed a college campus in Montgomery, Alabama. It further asserted that state authorities padlocked the dining hall, quote, in an attempt to starve the students into submission. Various claims in that were inaccurate, and the Times eventually published

a retraction. So what you get in New York Times v. Sullivan is, okay, it was inaccurate, but the Times didn't know it was inaccurate at the time that it published it. It only found out afterward. And so the court comes up with this actual malice standard, meaning, look, it's not just that they published something inaccurate. You have to also show that they knew it was inaccurate and they did it on purpose to, you know, make these folks look bad. And that's what they couldn't overcome in that case. And that's the standard that we all have today. So again, I'm really fine with sort of cabining that standard a bit. If you know it was false, for instance, that would be enough for me. I don't think you need to have any motive in doing it whatsoever. Knowing something's false would be plenty. A little hard to prove, but I'm not sure another workable standard.

But, I mean, David, the footnotes in this are bizarre. Truly. So, the footnote that stood out the most to me is not the one that's getting a whole bunch of attention. It is footnote 11. Okay. Of course, I do not take a position on the legality of big tech's behavior some emphasize these companies are private and therefore not subject to the first amendment yet even if correct it is not an adequate excuse for big tech's bias the first amendment is more

than just a legal provision it It embodies the most important value of American democracy. Repression of political speech by large institutions with market power, therefore, is, I say this advisedly, fundamentally un-American. As one who lived through the McCarthy era, it is hard to fathom how honorable men and women can support such actions. One would hope that someone in any institution would emulate margaret chase smith for a legal conservative to say that anything in the constitution is more than just a legal provision is the opposite the very opposite of what legal conservatism stands for that's some emanations and penumbras david yeah yeah um and the repression of political speech by large institutions with market power

fundamentally un-american now American now this is, there's so much there that's so bad and I, you beat me to footnote 11. No, did I really? Oh, you beat me. No,

that's okay. There's other stuff. There's other stuff. Um, anyway, but yeah, I, so I have long went in, in talking about the health of free speech in the United States, I have said this.

Free speech has never been more protected from government interference than it is right now. So that's the First Amendment, which is entirely a legal provision. So that's the First Amendment, which is entirely a legal provision. Now, like most legal provisions, it advances a particular value, right? A prohibition against murder advances a value that says life is valuable. But it is entirely a legal provision. That value is advanced through the legal provision, okay? And now, it is also true that there are cultural values of free speech, that our society can have a greater or lesser commitment to free speech as a cultural value, which is a different

question from the legal value. And what you often end up having right now is you have people mainly on the right who are saying that there are a variety of private actors who have an insufficient cultural commitment to the kind of speech we want to protect, to mainly my speech, my speech. So private entities do not have enough of a

cultural commitment to free speech. Now, that's an argument worth having. It's absolutely an argument worth having. What should Twitter's moderation policy be? What should Amazon's book sales policy be? Those are Facebook's moderation, Reddit's moderate. You can go down the line. What federal judge that when one set of private actors regulates political speech in a way that this government official does not like is un-American. I think he's getting this a little bit backwards, Sarah, because if you're going back to the First Amendment, the actual legal value is that the government, enclosed with its immense power, is not the one that is supposed to repress political speech. The way private institutions, organized for their own purposes by their

founders and staffed by their employees employees determine and how to moderate or express political speech, that's about the most American thing possible in a First Amendment context. Now, you may not like it. You may think they've made a mistake. You may think that they're wrong. You might even think that they're dangerous. But when private individuals gather together and express a political purpose or make decisions regarding political speech using their own resources and their own platform, that's pretty American. Rant over. rant appreciated. So by the way, let's just go down a quick cul-de-sac for those who don't know what he was referring to when he said we need a Margaret Chase Smith. Ah, yes. He's referring to Senator Margaret Chase Smith of Maine, who, by the way, Maine has some like weird thing. They really love their senators. So she was the longest serving Republican female senator in the Senate until Susan Collins took that distinction in January 2021 of this year,

when she became the longest serving female Republican senator. But what he's actually referring to is this 1950 speech that she gave called Declaration of Conscience, in which she takes apart the House Un-American Activities Committee and McCarthyism and states that the basic principles of Americanism were the right to criticize, the right to uphold, to hold unpopular beliefs, the right to protest, and the right of independent thought. So a pretty cool chick. And I encourage everyone to go read that speech. Fun times. But back to this. So what he's getting the most criticism for is sort of this. lot of evidence he provides for this sort of partisan rant that he goes on. Although the bias against the Republican Party, not just controversial individuals, is rather shocking today, this is not new. It is a long-term secular trend going back at least to the 70s. Two of the three most influential papers, the New York Times, the Washington Post,

are virtually Democratic Party broadsheets, and the news section of the Wall Street Journal leans in the same direction. The orientation of these three papers is followed by the Associated Press and most large papers across the country. Nearly all television, network, and cable is a Democratic Party trumpet. Even the government-supported National Public Radio follows along. That's a very strange paragraph to see in a judicial opinion, but stranger still, there's not a single piece of evidence that he provides for any of that. And I'm not saying that some of those things aren't true, but the footnote for this is who can forget Candy Crowley's debate moderation?

Referring to when Candy Crowley incorrectly interrupted and corrected Mitt Romney, who said that President Obama didn't use the word terrorism in describing what happened in Benghazi. What? I mean, that's really breathtakingly unusual. Um, and it sort of goes on in that tenor, but then the very end, uh, the other part that I found particularly odd, and this is the second to last paragraph, there can be little question that the overwhelming uniformity of news bias in the United States has an enormous political impact. Footnote, the reason for press bias are too complicated to address here, but they surely relate to bias at academic institutions.

surely relate to bias at academic institutions. To make such sweeping claims about the media, and that's all that there is, is who can're going to make charges like this that are big charges you got to bring the receipts and the receipts are not candy crowley Candy Crowley. Right. Right. I mean, and, you know, one of the things that is, so I'm looking at this and I'm thinking,

it's almost like, I feel like this judge who is, he's been on the bench for a while. This is not a new Trump appointee judge, but I almost feel like

this is a guy I can almost like think off the top of my head that he's been following specific Twitter accounts that essentially have said there's overwhelming uniformity. This overwhelming uniformity threatens our democracy. And it's time to start to think outside the box of the First Amendment regarding about how to deal with this overwhelming uniformity. And then here's his last paragraph. It should be borne in mind that the first step taken by any potential authoritarian or dictatorial regime is to gain control of communications,

particularly the delivery of news. It is fair to conclude, therefore, that one-party control of the press and media is a threat to a viable democracy. It may even give rise to countervailing extremism. The First Amendment guarantees a free press to foster a vibrant trade in ideas, but a biased press can distort the marketplace, and when the media has proven its willingness, if not eagerness, to so distort, it is a profound mistake to stand by unjustified legal rules that serve only to enhance the press's power. Yikes. So here's my deal, David. I don't like what Amazon did.

Right. Me neither. I don't like what Twitter has done many, many times. It is concerning to me. Not legally concerning. Culturally concerning to me. Yes.

But legal conservatives up until about a year ago believed that process was the way to the most just outcomes. And that sometimes that would lead to outcomes you don't like. And what has been happening, and we'll talk about this next, it's the perfect segue, is this idea that there are too many outcomes we don't like because we're following process,

which is bizarre, right? Because it's like they didn't understand the deal. If you want to say that the First Amendment has emanations and penumbras, I don't know that you're going to like how everyone else sees the emanations coming from the First Amendment. They may not be the same emanations that you see. And that's why legal conservatives like process. And can I just make a little factual point here that I tried to make in a certain clubhouse room a couple of weeks ago?

All right. This little rant, which is really an op-ed. I mean, it reads like an op-ed. He should have just gone ahead and submitted it to Breitbart. But this rant is dated. And here's what I mean by dated. If you were going to say, I can think of 30 years ago, 1991. 30 years ago, 1991.

1991 was a time when communication of news and analysis was incredibly consolidated. Incredibly consolidated. And your ability as just a normal human being to have your voice heard was incredibly limited. So you had usually one or two papers in a, in any given town. You had the ABC, NBC, CBS were providing the bulk of the vast bulk of the news. There was no internet there, or at least, you know, you were, you had to be rich and on AOL or CompuServe and you're mainly getting baseball scores. And so there was an enormous consolidation at that point. And I remember, I'm old enough to remember, Sarah, I'm going to get in my day, my little in my day rant.

But I'm old enough to remember that the arguments over media bias at that time where a lot of conservatives were jumping up and down and saying, media is consolidated and it leans left. And a lot of people in the media were saying, how dare you say that? We're completely unbiased. And when everyone knew, there were institutional biases. What's happened since 1991 is we are now living in an era where if you're a person who is right of center in your views, you have more opportunity, or if you're a person left of center of your views, if you're a person, you have more opportunity to make your voice heard and to read like-minded media outlets

than in any time in the whole history of the human race. And this idea that a conservative has a hard time getting the word out is total fiction. Now, that doesn't mean that there aren't individual instances that you and I can point to and say, for example, the Amazon banning Ryan Anderson's book, to and say, for example, the Amazon banning Ryan Anderson's book, bad decision, has bad implications if Amazon keeps going down that road. And by the way, I don't think Candy Crowley was a very good debate moderator. She was not a good debate moderator at all. But the idea when conservatives have control, or people right of center, controlled the number one cable news program in the country, which also so happens to dominate online content, especially on social media, to an extent that the New York Times and Washington Post can only dream of having Fox's reach. When there is an enormous talk radio world, when there is an enormous online social media presence for conservative thought,

conservatives do not have a problem getting their voice heard. They don't. One of the biggest problems right now is what conservatives are using that megaphone to say. And that flips us back up to New York Times v. Sullivan. Guess which major won Fox News. Fox would have some problems under its current mode of operation if the defamation standard were loosened. And so I think he's taken this sort of online doom-scrolling approach and has not looked at the bigger picture. So it's not just an op-ed, which judges should not write. It's a bad op-ed. I wouldn't print it. Zero Yelp stars. Would not recommend. Okay. But what's funny about this dissent is that it comes

out at the same time as this piece in the American Mind, which is published by the Claremont Institute, called A Better Originalism. The authors are Hadley Arcus, who is a professor at Amherst, Josh Hammer, Matthew Peterson, and Garrett Snedeker. And sorry, Garrett, if I'm mispronouncing your last name. David, this has been getting some attention in right legal circles. It seems to me to follow directly from, but perhaps less explosively than the Adrian Vermeule good government, sorry, common good constitutionalism that you and I had an argument about last year where I said that there was no way

that this wasn't a sarcastic, we should eat the children type piece. And you said, no, no, he's serious. This is a branch of sort of Catholic legal thought these days. And I said, that's not possible. It's simply not possible. And yet here comes a better originalism, which is basically the exact same framework, but taken out of the Catholic-iness of it, I guess. Here's what's fascinating. So overall, the piece, as you can guess, since it's basically the same as the Vermeule piece, is this idea that process is no longer

good enough. We need to have outcomes as conservative legal thinkers. So ditch originalism as it's currently understood, which is a process, and instead go with moral originalism, which in fact is an outcome of morality, which has the exact same problem as common good constitutionalism, which is whose morality? Because it's not going to be yours. You're not a judge or a president or in any position of actual power, which is why process matters so much. Okay. So first off, fascinating, David, between those four authors that I told you about, and this whole piece is on conservative legal jurisprudence, only one has been to law school, and he's a 2016 grad from the University of Chicago. The other three are not

lawyers, which I think is really interesting. On the one hand, I think it limits to some extent what they're saying and the weight with which they're saying it fine, but like, that's how much ground to your point that there's this doom scrolling going on that all is lost. We've been backed up into a corner. That corner is now the courts. The only institution that we still think we have any foothold in, um, you know,

Hollywood's gone. New York's gone. The media's gone, academia is gone, the children are gone. All we have to fight back are the courts. And therefore, even non-lawyers are retreating to this position of, therefore, we need to weaponize the courts immediately, basically, to overturn Roe v. Wade, which is sort of the point of this therefore, we need to weaponize the courts immediately, basically to overturn Roe v. Wade, which is sort of the point of this piece, oddly. Well, right. We need to get these six justices in the judicial weight room and bulk them up. And what are we going to bulk them up with? We're going to bulk them up with this sort of common good originalism. And essentially, the idea is that here's a preamble to the Constitution. The preamble, we the people of the United States, in order to form a more perfect union, establish justice, ensure domestic

tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish the Constitution for the United States of America. That this is kind of like your super clause. And by the way, I had to memorize that in eighth grade and I got more than a hundred on my test. So I just want you to know all the amendments and their year and what they said and the preamble. Nailed it. Please continue. But yeah, I would say what you really have here is one, what you're trying to get to is an argument for the six justices who are conservative justices to, and this is

really written for a very small audience. This is the kind of thing that people are hoping judges read and that they're trying to get them to in a position where they have an argument for just exerting the same kind of raw judicial power to overrule Roe that was exerted to not just to overrule Roe because originalists, conventional originalists would reject Roe. But to ban abortion judicially. judicially. So to exert the same kind of power that was used to enact Roe to ban abortion, not just reverse Roe, but to ban abortion. And number one, there has been an originalist argument about whether or not the Constitution, an originalist argument under conventional originalist, um, principles over whether or not the constitution actually bans abortion. That argument has been going on for a long time. I mean,

you can even read judge Bork on this. You can read Scalia on this. This is something that's been happening for a really long time. and the way of what I would say is the, the, the general originalist consensus, not without dissent, is that the constitution is silent on abortion. Um, and therefore there isn't a constitutional mandate to either protect or reject abortion, that that is something that is left to the states. That's been sort of the weight of originalist opinion. And so they reject that and would reject an originalism that would reach that conclusion. And then the other thing that really, really, really bothers them is the Bostock decision. This is Gorsuch joined by Roberts with, at the time, four Democratic nominees to extend the protections

of Title VII to LGBT Americans, that that allegedly reveals the intellectual bankruptcy behind textualism. And so the combination of Bostock and Roe means that we have to be more muscular towards a particular outcome that we're going to say, quote unquote, promotes the general welfare according to what natural law principles, principles of common good. A lot of these sort of principles, I'm starting to think, Sarah, whenever I hear the word common good or the phrase common good, what I'm thinking in my mind is this is right-wing speak for social justice. In other words, a set of words that we have used to describe the set of policy outcomes that we generally want

that appear sort of self-evidently obviously good? Who's against social justice, Sarah? Who could possibly be opposed to the common good? But in fact is our phrase for sort of a raw exercise of power in favor of our policy positions. I've heard people sort of charitably say, hey, look, their project is early. Project, I'm using air quotes, is early. We need to really see, have it fleshed out what this doctrine would actually mean. a community of people who believe that all is lost and that the last thing we have is this judiciary. And this judiciary, therefore, now we are going to use it as the location for the exertion of raw power in very key ways to reverse cultural decline. And one, I mean, one, I think it's a pipe dream. This is contrary to basically the entire project of the Federalist Society for 25 years. Number two, it's incoherent.

And number three, let's imagine that the six justices just sort of like, you know, rip off their shirts, revealing like, you know, ripped constitutional abs and start exerting all of this power again in the face of every other political institution and cultural and economic institution that is, they believe, lost. Is that going to work? Can the judges do that as a practical matter? The answer to that is they cannot. They cannot. So the first paragraph, for instance, I think gives away the game here. In truth, in sobering truth, the theories that have been offered us in the name of, quote, conservative jurisprudence have been muddled for decades. And now those doctrines threaten to disarm conservative judges as we are about to plunge into the gravest crisis of the regime since the Civil War. And I think they're being genuine. I don't think this is the most important election of our lifetime,

trying to build it up so that people will vote for you type thing. I think they believe this now. And so it's the Flight 93 of jurisprudence. The plane is going to crash, so we need to do something about these moral issues and again what they're mainly talking about is abortion and they put sexual orientation in quotes so the marriage issue they want to revisit obergefell and again what i would say is if you want to have a jurisprudence based entirely on what the judge thinks is common good morality, they use common good multiple times in this piece.

Morality is 27 times. You're going to be disappointed because not everyone shares your morality. morality and this idea that if you revisited obergefell on simply the terms of whether five justices think that gay marriage should be allowed whether it has you know a moral basis to allow people of the same sex to marry one another I think they will be deeply disappointed in the outcome. I don't think there's any appetite on the current court to deal with Obergefell. No, no, no. Of course not.

But like, let's say they got their way, a magic wand, they get their version of conservative jurisprudence and poof, Obergefell, like we just go in a time machine, I guess, and redo that case, there's still gay marriage in the country. A hundred percent. No question.

I would agree with that. If you just ask the justices to make a moral determination, I tend to agree with you. I tend to agree with you. And yeah, and the other thing, you know, when you go back to that opening paragraph, and this this is something, a part of a theme of my book, which is the catastrophic thinking that we are in this, this moment of ultimate danger is, is, is itself dangerous. Quite. It's, it is dangerous. Because people are willing to chuck all sorts of rules because this is an exception. This is an exceptional time. Therefore, all these other things that we put in place,

we can bypass those because this is unusual. It was something that at the Department of Justice, I was there during what I think was an exceptional time. And there was all sorts of pressure to ignore the rules, ignore the guardrails that were in place because this is an exception. Look what's going on. The White House is attacking us. The Republicans on the Hill are attacking us. And I thought that Rod Rosenstein, the Deputy Attorney General, Acting Attorney General over the Russia investigation, he said this all the time. He said, that's how you get into the most trouble when you think that this is the exception so that you don't have to follow the rules right right and and the

other thing is one thing that drives me nuts um they kind of they'll often scorn like a lot of these legal what are quote-unquote neutral legal doctrines as being sort of devoid of morality no the neutrality is moral okay like they the the due process clause and equal protection clauses these clauses which say for example every single human being before they're deprived of their life liberty or property in the united states is entitled to due process and that that due process shouldn't vary depending on whether somebody is a woman or a man or black or white. Yes, those are neutral legal principles, but they advance a powerful morality. And so what these guys often do is they sort of say, well, the Constitution is not, you know not that these First Amendment and Fifth

Amendment and Fourteenth Amendment doctrines are really neutral proceduralism. Well, neutral proceduralism is a description for the way a lot of these doctrines work, but neutral proceduralism is itself a tremendous civilizational advance the idea that you and i in this diverse country with diverse points of view coming from different races different ethnicities different religions generally and their imperfections and we talk about them on this program that they generally enjoy the same access to these human rights, really, articulated in the Bill of Rights, and that we have constructed neutral processes to guarantee that justice is, or to hope that justice is as blind as possible in the protection of these rights, that's a powerful moral position.

And what they want to do is they want to strip the law of that neutrality in the interest of favoritism, that they're labeling a lot of this favoritism as moral. And I dispute that. I dispute that. And so I think it's very important to say that it's not just that the laws and the Bill of Rights, for example, and neutral proceduralism are just amoral. No, neutral proceduralism and the protection of rights is a civilizational advance. It's a historic civilizational advance, and it's one of the best things about our country. And so to undermine it in the name of here are these particular court cases that we believe were wrongly decided and that we're going to decide them correctly and then reshape all of

culture following this judicial decree, it really is something that's pretty astonishing to me. And we'll take a quick break to hear from our sponsor today, Aura. Ready to win Mother's Day and cement your reputation as the best gift giver in the family? Give the moms in your life an Aura digital picture frame preloaded with decades of family photos. She'll love looking back on your childhood memories and seeing what you're up to today. Even better, with unlimited storage and an easy to use app, you can keep updating mom's frame with new photos. So it's the gift that keeps on giving. And to be clear, every mom in my life has this frame. Every mom I've ever heard of has this frame. This is my go to gift. My parents love it. I upload photos all the time. I'm just like bored watching TV at the end of the night. I'll hop on the app and put up the photos from

the day. It's really easy. Right now, Aura has a great deal for Mother's Day. Listeners can save on the perfect gift by visiting auraframes.com to get $30 off, plus free shipping on their best-selling frame. That's A-U-R-A frames.com. Use code ADVISORY at checkout to save. Terms and conditions apply. Okay, David, let's go to the movies.

Yes, we can save the Atlanta discussion and hate crime and terrorism discussion for another time. Let's go to the movies. I asked you to see Promising Young Woman. It's the only Oscar nominee that I've seen. And we got to give our spoiler alert. Yes.

If you have not seen Promising Young Woman and you are interested in seeing it, it does have a really good ending and this is going to spoil it. So turn off the podcast. Come back to it later. Go watch the movie. Don't listen to this.

Okay. You've turned it off. So I went... Okay. All right. so tune in. If you've already seen it or you have no interest in seeing it and just want to talk about it.

All right. Really fascinating premise. Nancy had already seen it. She asked me to watch it. She told me nothing about it. I hadn't looked it up. All I knew was there was some controversy about the casting of the main character. And? Yeah. What's the controversy? I thought she was the best part

of the whole thing. Oh, she was fantastic. So, Carey Mulligan plays the main character, and she's so good. It's one of these dumb internet micro controversies that's almost too dumb to explain. But apparently a film critic may have questioned Diddy. I don't know whether she had the right look for it. Anyway, that's a rabbit hole. It led to all kinds of stuff. Anyway, so that's all I knew about it. So I didn't know anything about it. I watch it.

And here was my cycle. Fascinated, slightly depressed, angry, and then kind of like, you know, sort of satisfied. That was my cycle. What was fascinating was the premise. This is a person whose best friend had been raped in a med school party. She had been drunk and incapacitated. And so her best friend begins to seek revenge against men by going to places pretending to be drunken and incapacitated. And when they start to take advantage of her, she snaps into immediate sobriety, puts the fear of God in them. And the way this all plays out on screen is really well done. She then finds in the middle of all of this, she finds a guy she thinks is a good guy.

And you know what's coming. Turns out he actually was maybe present when the terrible event occurred. So that ends that. And then she tries to get ultimate revenge on the people who actually committed the assault on her friend. And it goes in a way that makes me really mad. And so, Sarah, your thoughts. Okay. This movie was flawed. It had such a good premise. When you're first watching it, the opening scene is near perfect cinema. It's so good. Three dudes are at a bar. Two of them are

misogynistic jerk faces. And one of them is like the, you know, liberal well, gosh, guys, women just want to be treated equally. Like they're complaining about these chicks at the office who won't let them, you know, meet clients at the golf course anymore. And the nice guy

is like, well, maybe that's because they don't allow women at the golf course. They're like, they should just worry about their business and their clients and let us do our thing, man. And the guy's like, yeah, yeah, whatever. And then they see this incapacitated woman over in the corner and the two bad guys are like, Oh dude, that girl's just asking for it look what she's wearing you know she wants it yada yada and he's like oh the good guy's like guys like you know she's that's unfortunate and so then the two bad guys are just like betting each other and daring each other who's going to take her home and our good guy is like uh i'll do it you know and it's clear from the context that he just doesn't want her to be taken advantage of by his two psycho friends.

And so he's going to go help her out. She says she's lost her phone. And he's like, let me, you know, I was going to leave anyway. Why don't I just give you a ride home and make sure you're okay? And we're like, okay, this is a pretty, you know, normal thing. Where's this going? And then in the cab ride, he's like, you know, my place. Where's this going? And then in the cab ride, he's like, you know, my place is right here. Do you want to just go to my place?

And she doesn't answer. There is no consent. And so he tells the cab driver to go to his place. And then he offers her a drink. She doesn't say anything. He gives her a drink and like pours it down her throat. And then she's like, I need to lie down. He's like, of course you do. And he tries to kiss her. And she just like, that's actually one of the really funny scenes is him kissing her and her not moving her mouth at all.

And he's like, mmm, so great. She's super into it. And so he is about to rape her on the bed. She comes to. This is when I think we're going to have an American psycho moment. Right. I think she's going to kill him.

Yeah. And I think because I looked up nothing about the movie. You told me not to, David. But instead, the scene ends and you get the opening credits for the movie. So I just assume she has killed him because then she's walking by a construction site with these construction dudes whistling at her. And she's eating a hot dog. And it could be ketchup running down her arm or blood. And so you have this really satisfying American psycho scene.

And I'm like, yes, I am here for this movie. It's going to be funny and satirical. I am here for this movie. It's going to be funny and satirical. And basically we're going to have these quote unquote liberal guys saying all the right feminist shibboleths who are just as bad as the bad guys. And I think that's a great premise for a movie. But that's not the premise for the movie. That's just the premise for the first scene of the movie.

From there, then it takes this much more sincere, realistic-ish route, much more like Me Too, where there's sort of this opportunity to talk about what is consent when we're talking about everyone who's been drinking. The men have been drinking. The women have been drinking. She's incapacitated. Where is that that line but they don't really do that either no no real discussion of that and so then she meets this guy and he's a beta i mean such a beta and then i'm deeply concerned that the movie is going to be like all of these confident men are bad and they're rapists and the only man you can really ever be happy with is sort of this mealy, good-looking beta dude who keeps like asking permission for whether they can walk down the sidewalk together, basically.

But it would be hilarious. The attraction she seems to have to him is that he lets her steamroll him. Yes. Insult him in the most extreme way. But anyway, go ahead. Yeah, so then, okay, hilarious rom-com. She's finally met this guy she really likes. And then at night, she's going out

and pretending to be drunk. And he catches her and is like, you blew off a date with me and now you're going home with this loser who seems like a real jerk. And so, oh, okay, here's the conflict. Nope.

She never explains to him what she's doing. And in fact, she just says, forgive me, it'll never happen again. And he does. No questions asked.

So we don't even have the hilarious rom-com where then he teams up to help her get, you know, revenge in a funny way on the bad guys. So we have American Psycho,

we have The Morning Show, we have a new rom-com premise, all of which I think would have been really, really good movies. Mm-hmm. This chose to not do any of them fully, to do all of them partially, therefore executing

none of what would make them really high quality. And as a result, I don't think we do have an interesting conversation about the Me Too era. This movie had the potential to be the Me Too era's movie movie if it had followed either of those three paths frankly i think and then you know so the spoilers are there and then so you've gone through this thing where it seems not as serious on every front correct so so it is not as serious in other words she's not killing these guys. She's just shaming them. Then, you know, it turns into this romance that's so like light in a way that the guy just sort of completely waves away this, what looks to be this really bad behavior on her part.

So it's, and as you're saying, in every stage, it's like, it could dive in, you know, it could dive in and consent. It pulls back. It could dive in on like vengeance and it pulls back and, or could dive in on like this really intense emotional, uh, problem with her boyfriend and it pulls back and then it dives in and she's brutally murdered right in front of us.

Brutally. So he smothers her, but not like in a movie smothering. No. We just watch him with no dialogue, smother a woman. And it takes as long as it would really take to smother a woman with a pillow.

Roughly, what do you think? 45 seconds, 90 seconds. It's a long time. It's so long that I was regretting watching the movie like yeah it was hard to watch it was okay and because the thing is it set you up like this isn't as serious a movie as i thought it was you know it has serious overtones and then all of a sudden what am i watching okay he's not gonna kill her he's he's not he's not going to kill her. He's not, he's going to kill her. And then it ends with this sort of like TV style,

ha ha, this was my plan all along and I'm reaching from beyond the grave to have all the bad guys arrested at the bad guy's wedding. Which, okay. So, but the thing that makes it hang together is the performance from the lead actress is remarkably great.

It's really, really. She takes each stage of this and just absolutely sells it. But here's one thing that I did think that the movie did a very good job of portraying. And what it did a good job of portraying was the way in which a guy looks at a drunkenness as an opportunity

and then just moves on with his life, and that a girl who has been assaulted, it transforms their life. And sometimes in the most difficult ways possible, sometimes in ways that it's difficult to continue living. And I thought that that was really well done in the way it showed how these guys, even these quote unquote good guys, could look back at some of these bad incidents and just think, ah, you know, either that was an opportunity and we were all drunk or that was just a bad day and I'm not going to do that again. And then the disparate impact, I thought it showed that really, really, really well.

But as far as all the rest of it, I think that's why I was so, not only I would be disturbed by the murder scene anyway, but to have the such dramatic tonal change doubled the disturbance. And then there's the female characters. So the female characters are also bad guys, and it shows the complicity of other women

in rape culture. You have one, the friend who was there for the rape, and now we're supposed to be roughly 10 years later, and this friend, when asked about it, says like, well, look, she's the one who got super drunk. She showed up wearing whatever she was wearing. Like they were just messing around

what she think was gonna happen. Now we all know by this point that she has killed herself since then. I think that's a really one-dimensional look at what a woman who would have been at that party and not intervened would have thought 10 years later, knowing the consequences. I don't know that it's very realistic that she would still be like, whatever, she brought it on herself. No. And again, a missed opportunity to show why someone doesn't act at the time.

They're concerned what the men will think about her. She didn't know how serious it was getting. She chose to walk away rather than intervene. She didn't want to make a scene. Whatever that was, they don't dive into that. Instead, it's this very one-dimensional shrugging it off. And then you have the female dean of the school who a complaint was brought to and who basically chose the school and the potential of the boys over the rape victim. That was a little better. She did a better job talking about due process and like, don't you think, you know, we have to treat them as innocent until proven guilty. And we couldn't prove that these boys were guilty,

but it made it seem as if it was supposed to be a caricature, which was even worse. No, that's a real concern. Let's dive into that and how we're supposed to balance it. We find out later that there's a video recording of this. Why didn't the dean then look for evidence? That's a conversation that you could have, but making us feel like it's supposed to be a caricature that the dean thought that the boy should be innocent until proven guilty. Yeah, though, that's not a caricature. That's a real concern that people have. Spend some time on that yeah yeah exactly exactly but again held together by this incredible i know she's so good at it it's we're making it sound like it's this

terrible movie when in fact like i'm glad i watched it because carrie mulligan just delivers this incredibly compelling performance you can't look away i hope she wins best supporting actress there's no way in hell that movie's winning best picture. No, I best, best actress, sorry, not best supporting actress. Yeah, I agree with you. I think she should win best actress and, uh, but yeah, best picture. No, no, no. I mean, look at, you mentioned the show, the morning show, the morning show really dove into a lot of these aspects in a hundred times more interesting depth and with a very raw reality that was, again, sometimes hard to watch, not in the same way hard to watch as watching a murder in the

middle of what might be a rom-com. That is the point that you're like, I don't think this is a rom-com. No, I am no film critic, but... I don't think that the female protagonist gets murdered in rom-coms. Yeah, I kept waiting for her to pop back to life and say, aha, I took this drug that slowed down my metabolism

and you only thought I was dead. Yeah, that was rough. Now when they show her burned body and only her fingernails remain, that was pretty much a giveaway. She was dead. Yeah, that took away. Then you would have to be into like Justice League territory. There'd have to be mother boxes or something that could reverse time. Well, sorry. In Justice League, the mother boxes do not reverse time. That's Flash going fast. But spoilers, spoilers.

Yeah. So, but I wanted to talk about it because I thought, I want to hear what Sarah thinks about this movie, which seemed simultaneously ambitious and not. I'm angry about it. Such a missed opportunity. I wanted that Me Too era movie. I wanted it so badly.

I want to have these conversations. I thought The Morning Show was such a good entrance into these conversations. And then no one has followed up. I am angrier that the movie exists at all and miss the opportunity than I would be if there were no movie like it. That's what I left feeling like. The caricature of the women frustrating,

the missed opportunity to talk about rape culture in the higher education context of alcohol and the deans and the due process aspects and all this stuff. And it could have still been funny. It could have been dark humor. It could have been American psycho, but better, I think. And then not to mention every guy was bad. Yes. Except, except the lawyer. Oh, true. true. The defense attorney for the rapist turns out to be our good guy.

Yeah, but the beta dude, turns out he becomes alpha in one context, defending rape. Yeah. Yeah, which again, I thought that was like a missed opportunity to show that these liberal shibboleths that men have been taught to say to sound like the good guys aren't a substitute for good behavior. And in fact, we're not teaching the good behavior. We're just teaching them the things they should say. which is a real thing yep which is a real thing um and you know what's interesting it's well gosh we could really go down that road um we are in such a performative era regarding virtue um that these mores are gonna shift um and it's and there's gonna be a lot of this performative

virtue is gonna not look so so great as time goes by. At least that's what I'm guessing will happen. But yeah, that would have been a great way to explore like, hey, these are progressive good guys who say all the right stuff. But then, yeah, the movie didn't go fully down that road. It didn't go fully down any road except brutal smothering and we're almost past the me too era enough that I now

am sad because I'm not sure we'll have another opportunity to have these conversations culturally yeah yeah well we shall see. Are you proud that we've spent more time on Promising Young Woman than Justice League? I actually read your newsletter, couldn't put it down. Highly recommend to those who have no intention of watching these movies, and certainly the four

hour and something Snyder Cut. I didnhour-and-something Snyder Cut. I didn't really know what the Snyder Cut is, even though you've talked about it many, many times. And I found... I think you just tuned it out. I did. I've just... It's in block. And I found your newsletter so helpful on it and really interesting.

It almost made me want to watch the comparison because I think that would be really interesting. But when I think about what I'm going to do with six hours of my life, other things come to mind. Oh, man. The comparison is pretty amazing. It's just amazing how you could

take the same footage. Yeah. You should watch their side-by-side footage you can find on YouTube of key scenes. It's really interesting. Okay, that I would go do because that's what I think is so cool. You hand two directors the exact same footage and tell them to make their own script, their own plot, their own movie out of it, and to have two wildly different movies. That's pretty cool. We could have a reality

show about that, and I might watch it. Yeah, I will. Hey, if I think about it, I'll try to find one of those side-by-sides and put them in the show notes. For me, thank you. Yes, I will. Hey, if I think about it, I'll try to find one of those side-by-sides and put them in the show notes. For me, thank you. Yes, for you. All right. Wow, that was a lot of different stuff. But good stuff.

We will be back on Thursday, and we already have a full show ready to go for Thursday. I mean, we already have topics lined up for Thursday. So news cycle, just stay put. We, nothing, no new interesting news because we're already ready to go for Thursday. It's going to be, we're going to talk about hate crimes. We're going to talk about the union case,

talk about a religious liberty case out of Massachusetts that's important. We're going to talk about a lawsuit filed by Ohio Attorney General against the Biden, part of the Biden COVID relief plan. So many things. So please tune in on Thursday. Until that time, go rate us on iTunes or Apple Podcasts, subscribe on Apple Podcasts, and check us out at thedispatch.com. This episode is brought to you by Secret. Secret deodorant gives you 72 hours of clinically proven odor protection free of aluminum, parabens, dyes, talc, and baking soda. It's made with pH-balancing minerals and crafted with skin-conditioning oils.

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