Advisory Opinions - Parental Rights in Public Schools

Episode Date: October 28, 2021

On today’s show, it's a battle of Generation X versus millennials versus Generation Z as Sarah and David shout, "You kids get off my lawn!" But before the cultural rant, they explore parental rights in public schools, discuss the mixture of church and politics, and talk about the Kyle Rittenhouse case and the law of self-defense. Then, and only then, does Sarah lament "kids these days." Show Notes: -TMD on ‘gain of function’ research -NPR “The Johnson Amendment In 5 Questions And Answers” -French Press “When the State Kinda Sorta Parents Your Child” -Andrew Fleischman Twitter thread on the Rittenhouse case -New York Times “The 37-Year-Olds Are Afraid of the 23-Year-Olds Who Work for Them” Learn more about your ad choices. Visit megaphone.fm/adchoices

That's the sound of unaged whiskey transforming into Jack Daniel's Tennessee whiskey in Lynchburg, Tennessee. Around 1860, Nearest Green taught Jack Daniel how to filter whiskey through charcoal for a smoother taste, one drop at a time. This is one of many sounds in Tennessee with a story to tell. To hear them in person, plan your trip at tnvacation.com. Tennessee sounds perfect. Welcome to the Advisory Opinions Podcast. This is David French with Sarah Isker. We've got a lot to cover. We're going to talk about school curriculum law, political speech in churches, self-defense, and the Kyle Rittenhouse case, which caused a kerfuffle online. And then, thanks to Sarah bringing up a delightful New York Times story, we're going to have a little bit of a tri-generational snark, where a Gen Xer and a millennial talk about Gen Z in the workplace.

So can I just, can I, I want to tease that with this one quote, um, dude, we sell tomato sauce. We don't sell politics. These are political tomatoes. This is political tomato sauce. That, oh, I almost want to skip to the end. I really do. I almost want to skip to the end. I really do. I almost want to skip straight to the end and start there, but we can't do that. We can't do that. We have to leave you on the line.

Before we dive into law, Sarah, I wanted to mention two things. One, if you're not a subscriber to The Dispatch, today's a great day to join for two reasons. Reason number one is if you've been really confused about this dispute between Anthony Fauci and Rand Paul about gain of function research that sort of seems to burn up the internet, literally we just published the best single explainer of that whole thing that I have read ever. And if you're not a subscriber, you can't get the whole thing. So subscribe, read it. You will be a hit at cocktail parties whenever the gain of function research controversy comes up, as it always does now. And the other one is I'm trying an inaugural Ask Me Anything tonight at 7 o'clock Eastern for members only. So one of the things

that we're trying to do different things, and we're going to be doing different things to engage more with our members. And one of those things we're trying is, hey, if you read my newsletters, if you listen to this marvelous podcast, log on and ask me whatever you want to ask me. So those are two things for members only that I wanted to highlight. But Sarah, we're going to wade into the school curriculum wars right now. Again, again. And so what I want to do, I thought what we'd do is we're actually going to repeat some stuff we said months and months and months ago, but just keeps being salient. And one of the reasons why it was salient is there were some pretty spicy exchanges on Capitol Hill yesterday, including some stuff about a Nazi salute. So I guess, should we just get that out of the way before we dive into the school curriculum law? Always start with the Nazi salute is a real rule of mine. You know, it's funny. I was teaching my undergrads yesterday,

and it was press conference day where I teach them sort of the rules of the road of press conferences. And part of that is showing a whole bunch of press conference failures, of that is showing a whole bunch of press conference failures, most of which are atmospheric or, you know, that I start with the Sarah Palin turkey Thanksgiving one where the turkey is being slaughtered in the background. It's so great. It's awesome. And it's a very memorable way to think about what's behind you in any press conference. But I now end with the Sean Spicer Holocaust Center moment in the White House press briefing, which really is a good example of why you don't just throw in Nazis for fun. Now, remember, this is the even Hitler didn't use gas, chemical weapons. And then. Oh, yeah.

Right. OK. So he's always talking about Assadad and he's like even hitler didn't use chemical weapons and then 15 minutes later a reporter says hey uh this thing's blowing up on twitter and i just wanted to give you the opportunity to maybe clarify what you meant and he's like well i mean he didn't use it on his own people i mean, I understand that you're talking about the Holocaust centers, but I mean, it was. Yeah. So I use that, by the way, to point out that assuming that the question is always hostile and not really listening and taking a beat to to absorb what you were being asked can be a very dangerous thing. If he had realized that that was actually a generous offer to let him clarify what he meant, he might not have doubled down on

the Holocaust centers. So, sorry, fun cul-de-sac around the Nazi salute. So Ted Cruz is at the Senate Judiciary hearing yesterday with Attorney General Merrick Garland. They are talking, of course, about the memo, the school board memo in which the Attorney General said that basically the FBI would work with local law enforcement to investigate potentially whatever threats. And so Ted Cruz then was looking at a list and said, look, 15 of these aren't remotely violent. One of them involves a parent making a Nazi salute at a school board official. Now, the background of this, I guess, is that the school official is talking about the mask mandate, I think for the meeting itself, saying like you need to put on a mask. And so the parent, while putting on the mask, makes a Nazi salute, making, of course, the sarcastic point that they feel oppressed by the mask mandate, that this is somehow fascist, etc.

Again, who cares? I would not make a Nazi salute to make that point. But. Well, you're a rhino uh but well you're a rhino sarah you're a rhino that's a good point um the headlines coming out of this though were ted cruz defends nazi salute parent and i just again this has nothing to do with the Nazi salute. The actual question that Ted Cruz asked was, Mr. Attorney General, a Nazi salute is protected by the First Amendment, correct? And the Attorney General says, yes. That is just a legally helpful exchange as far as I'm concerned. Again, the First Amendment, it does protect popular speech,

but it's there to protect unpopular speech. And making a Nazi salute at the government official to me is sort of core unpopular speech. It is your right to criticize the government by comparing them to fascists. I know that the school board administrator didn't like being compared to a fascist. That's why it's protected by the first amendment. Right. Well, you know, that, that's a good segue into, um, let, I think we should talk for just a minute about that school board association letter and the FBI, et cetera. The school board association has now sort of said, well, uh, yikes yikes, we shouldn't have written that letter. And it's come out that that letter that the DOJ or some Biden, not the DOJ, some Biden administration officials had apparently reached out or worked with the school board association on the letter.

So the letter was bad. The letter, if you read the letter, yeah, was. It was bad in a couple of ways. One was, as you said, and as was pointed out in the hearing, a lot of the stuff they talked about was just rude, constitutionally protected speech. Okay, that's constitutionally protected. Now, and then what they didn't talk about were a lot of the threats that were actually out there. So it was kind of the perfect storm of incompetence because there are actually threats that are happening to school board officials that were not put in the letter, but the letter put in things that were not threats. So it was a, it was a i also just want to make i i don't like the what about ism stuff um in all contexts but sometimes i think it is helpful in a context like this to imagine the shoes on the other foot

and in the um heat and light of the george floyd protests in the summer of 2020, I think it would have been not hard to imagine protesters making, for example, just to continue with my Nazism, because obviously that's what I bring to this podcast, making Nazi salutes at police officers on horses who were potentially including tear gas or other chemical gas crowd control stuff at them. Now, the Department of Justice saying we're having the FBI work with state and locals to help make sure these protests are nonviolent. Here are some examples of things they might want to look at. Making a Nazi salute to a police officer. That would be egregious. The whole point of protesting is to, I don't know, protest. Like, I don't know how else to put it. And so, um, uh, this is why you want to protect the first

amendment robustly when it's your side or the other side? Because how quickly it can change? Yeah. I mean, you would have, in one hour, you could have done a completely different letter with completely different facts, and it would be a completely different situation. And the completely different letter with the completely different facts is the letter that highlights actual threats that occurred, including actual threats via email or mail, which implicate federal law. And you simply say, we're going to enforce federal law and threats that violate First Amendment protected expression, mainly not exclusively, but mainly. My goodness, Sarah. It was a political lesson, I think, for this new Department of Justice.

Obviously, for longtime listeners, you know, I worked at the Department of Justice before this, and I always like to explain my bias in this, but also my expertise. explain my bias in this, but also my expertise. The process by which a letter like that goes out that quickly is not going to have been a good one process-wise in the Department of Justice. And what it appears to me, based on that reporting that, in fact, White House officials were involved in the drafting, is that you have a White House letter that was given to the Department of Justice, and they were told to put it out. And DOJ leadership, I would guess, has learned a valuable lesson from this experience, which is my impression reading it is that the FBI would not have seen this letter. My additional impression is that the Civil Rights Division would not have seen this letter. And this was sort of the attorney general's office.

Now, the attorney general actually has a relatively small office. The chief of staff, you know, if you think back to Matt Whitaker and people were like, oh, this is the chief of staff of the Department of Justice. It's actually not the chief of staff of the Department of Justice. They are the chief of staff for the attorney general. They only oversee about seven people who are counselors to the attorney general. These are relatively young people often. And I say relatively, I'm calling myself young because I mean, you know, 30s, early 40s. These are not sort of grizzled veterans of the law. And in this case, a lot of them are former clerks to then judge Merrick Garland. And so,

you know, the White House sends over this letter that isn't on its face, something the Department of Justice can't put out. It's not the White House demanding the prosecution of someone in particular, something like that. And so they do, because of course they report to the president without thinking it through and without the political expertise, I think, in that senior ranks to maybe run that through some traps internally. And so the result I think you will have noticed by now is, first of all, where is Christopher Wray, the FBI director in any of this? Nowhere. He ain't touching this with a 10-foot pole. He's not getting the FBI involved in this. They haven't acknowledged it. Nothing.

No one from the Civil Rights Division I've seen out there. And then to have the School Board Association itself back off its own request, leaving the Attorney General just hanging out there in the breeze. Every new administration makes these sort of early mistakes as they get their legs under them and figure out what this job actually is. I think this is theirs in the sense that actually it will have political ramifications. I think for instance, in the Virginia governor's race, but a great way to learn this lesson, it could have been something else. And I am for it being this letter. And I think that they will not do this again.

I agree with you. I don't think they'll do this again. It was, it was bad. It was incompetent. And what really vexes me is we do live in an atmosphere where public officials receiving way too many public officials. Well,

any public officials receiving threats is too many, but way too many public officials. Well, any public officials receiving threats is too many, but way too many public officials are receiving threats. And now, thanks to this, that very claim is going to be discounted by a lot of folks because, well, we've heard what the threats are and they're Nazi salutes. So it's just, it's frustrating on many levels. Shall we talk curriculum? I would love to. All right. So I'm going to do it again, Sarah, for the second time on this podcast, I'm going to bring up my first case ever that taught me a whole lot about the law of school curriculum. It's the first case I ever volunteered to work on. And it's called Hot,

Sexy, and Safer Productions versus Brown. And I was a 2L in law school. Fall of 1992 is when I started to work on it. But what happened was in the spring of 1992 at a high school called Chelmsford High School in Massachusetts, a woman named Susie Landolfi was invited to give a safe sex presentation at a school assembly. Attendance was mandatory. So this is a, well, a kind of, sort of, we do have, we do have young children who sometimes listen to this, and we've gotten great emails from folks saying how young some of our listeners are. And so I'm not going to go through

all of the things that occurred here at the assembly, but let's just say it was a pretty over-the-top sexually explicit event. Oh, give us one example. People have had a warning. Just pause this if your kids are in the car listening and you don't like D-I-L-D-O's. Okay. Thank you for that i'm in the spelling phase with my son so everything just

gets spelled out i realize that your kids probably can spell um sorry yeah um okay so i'll just look at three little items um landolph landolphie uh simulated masturbation, characterized loose pants worn by one young guy, one minor as quote erection wear and referred to being a deep, you know what, after anal sex. So that's just a part of it. And so some parents were not happy, Sarah, and their kids, their kids, 15 year olds were not happy, Sarah, and their kids, 15-year-olds, were not happy. They filed a lawsuit, and among the various claims that they made was they made a claim that what occurred violated substantive due process because it was behavior that, quote, shocked the conscience. So a religious liberty

attorney reached out to our law school. We had a religious liberty group that I had co-founded. And so we volunteered to do a little bit of research. So I researched this case. And I think I got 10 or 15 minutes into it. And I realized the parents and the kids are going to lose. And they're going to lose fast. And they're gonna lose fast, and they're gonna lose badly.

And it really led me down sort of, it was kind of a formative event for me in thinking about school choice. And I think when they did actually lose, and then they lost at the First Circuit, the First Circuit actually had a paragraph that really was quite helpful in outlining what are the actual constitutional rights of parents over the education of their kids. So basically, it's kind of two things at once. The state doesn't have the power to force kids into public schools.

But once the kids are there, a parent's power for the kid's education is pretty darn limited. So here's the way I put it. The state does not have the power to, quote, standardize its children, unquote, or foster a homogenous people by completely foreclosing the opportunity of individuals and groups to choose a different path of education. We do not think, however, that this freedom encompasses a fundamental constitutional right to dictate the curriculum at the public school to which they have chosen to send their children. And so this is something, when we talk about parents' rights in public schools, the reality is your apex power as a parent is when you're choosing whether to send

them to a public school. Once you choose to send them to a public school, your power diminishes dramatically. And then essentially, when Terry McAuliffe said, for example, I don't think parents should be telling schools what they teach. Very bad move politically, very bad move politically. But when your child is in a public school, parents don't run public schools, voters do. Voters do. And voters are not, many voters are not parents. Many voters will never be parents. so it what i thought would i thought it would be helpful to sort of lay that out there parent listeners your apex power is your power of whether to send your send your kid to public school once your kid is in public school you basically only have the rights that by statute or school board policy that they give you. You don't come into the school with

a big bundle of constitutional rights over the education of your child. Clear as mud. I want to put some asterisks on that. Please do. First asterisk, you are talking about legal rights, as in your ability to sue or go to court over something related to that. Obviously, in many schools, the Parent Teacher Association, the PTA, is incredibly powerful at setting curriculum, but that's not a legal right to do so. Correct. Second asterisk, your students have constitutional rights at school, as we've talked about in the angry cheerleader case, for instance, although that was out of school.

They, the in loco parentisness of schools is limited when it comes to the First Amendment rights of your students and the Fourth Amendment rights of your students, by the way. Yes. Now, they are not as robust as yours, your First Amendment or Fourth Amendment rights. The school, for instance, can search a locker at the school without the same level of,

um, probable cause that some, a police officer would need to search your home. Right. Uh, but they can't just go rifling through your stuff, seize a student for no reason, things like that. So you have some Fourth Amendment rights, not full, same with the First Amendment. And as we learned, you can always say F cheerleading in your free time. Yes. And well, one of the reasons why I think it's so important to bring this up. Oh, and there's another asterisk. Some courts have recognized a First Amendment right to receive information on the part of students, which is a really interesting amorphous concept, but has been used particularly in the Ninth Circuit, for example, to limit efforts to withdraw certain kinds of teaching from the curriculum. to withdraw certain kinds of teaching from the curriculum. That would just put that in its own little niche corner because that's really complicated and not necessarily nationally relevant to our discussions.

But I think what's important for our discussions is this is something, this in loco parentis concept and the reality that it's voters, not the subset of voters known as parents who ultimately control public schools, is part of the reason for a nearly volcanic level of frustration that a lot of people feel. Because on the one hand, these are your kids. Your kids are going to these schools. Once they're walking into the school, this in loco parentis concept to at least to some

degree pops in. But then you don't actually control the education of your own child, of your own child. And so that, I think, is one of the reasons for the amount of frustration that a lot of parents feel. And sometimes that frustration is expressed destructively. Sometimes it is expressed constructively. But I think it's an incredibly important concept for people to understand. sphere with a bundle of rights that includes telling the public school how to educate your kid. And that one central reality, I think, is part of the big frustration that people are feeling right now. Yeah. And there's, I was going to say lots of law. There's not lots of law, but there's quite a bit of law, by the way, on the fourth amendment school searches that we haven't really talked about because with angry,

angry cheerleader, we were just all over the first amendment, but on locker searches, backpack searches, strip searches, there's sort of a spectrum of what a school, when reasonable suspicion is enough for a school to search or whether they even need reasonable suspicion to search.

All the way down to, I know Scott had a case about a very, very young student being strip searched that he really thought was going to get cert and it didn't. Oh, interesting. Yeah. Well, you know, we might need to bring Scott on sometime soon for his most interesting cases. That would be a fun podcast. got on sometime soon for his most interesting cases. That would be a fun podcast. Last night, by the way, he, so he's like, oh, I have a work dinner at 630.

Like 11 o'clock rolls around. I, I am not exaggerating. I am thinking in my head when the police knock on my door, uh, you know, like it's going to be such a bummer to be a single parent, like how hard that's going to be. And he comes in and he's like totally fine, obviously. But he made one big mistake, David. Do you know what that mistake was? What is that? Oh, he came to give me a kiss. Do you know why that was a big mistake?

And why is that? The cigar smell tumbled off of him like billows flowing from his person. The clothes have been burned and he was forced into the shower. The nerve, the gall. The gall. So Sarah, do you want to talk political speech in churches? talk political speech in churches? Yeah, so we've got a few questions about this because

there was reporting last week that Vice President Harris had sent out a video of herself talking, endorsing Democratic Virginia gubernatorial candidate Terry McAuliffe and that churches

in Virginia were playing that. And so we got, I got some DMs, I got some emails, you know, outraged, outraged, and wondering when those churches would lose their tax status. Of course, there is nothing new under the sun, David. This was peak discussion back in 2004 as George W. Bush's presidential campaign was trying to court the evangelical vote as that became a really powerhouse electoral block, voting block for the first time. And David, I happen to know that you have some expertise in this. And so I wanted you to talk to our listeners about the law of political speech in churches and why all of these churches in Virginia haven't lost their

tax exempt status. And by the way, I want to separate out two things. Obviously, you can say whatever you want inside a church. You have every first amendment right to do anything you want. What we are talking about here is the congressional, uh, congressionally passed benefit of a tax-exempt status. And so it all turns on that statutory language and Congress's ability to restrict speech. Right. And this is one of these areas of law that a lot of people sort of think of the idea that a 501c3, of which a church is a 501c3, that, uh, churches and nonprofit organizations not being permitted to endorse candidates is just, of course, of course, that's the law. It's actually a reasonably recent by American history standards statutory invention.

Uh, in 1954, Lyndon Johnson, who was then a senator, sponsored legislation. It became known as the Johnson Amendment. And it essentially says that churches and other nonprofits, C3s, are absolutely prohibited from directly or indirectly participating in or intervening in any political campaign on behalf of or in opposition to any candidate for elective office. And I'll put a nice little NPR FAQ about the Johnson Amendment into the chat. Now, there's a couple of things about this. One, lots of people, the Johnson Amendment is subject to an enormous amount of constitutional controversy.

A number of institutions have been trying to get the Supreme Court to challenge, to take this up. And it is the subject of an immense amount of confusion. fusion. So, for example, if I'm a pastor in a church, in my individual capacity as David French, I can endorse whoever I want to endorse. In my official capacity, from the pulpit, an endorsement of a candidate would run afoul of the Johnson Amendment. Now, the problem, however, is, Sarah, this thing is never enforced. It's out there. There is the Johnson Amendment. But people have been trying to set up court challenges to this for a long time.

My former employer, the Alliance Defending Freedom, has had something called the Pulpit Freedom Sunday, where they've said, hey, pastors, if you sign up, challenge the law, and we'll represent you. And as of 2017, going by this NPR article, about 2,000 clergy have deliberately challenged the law, and no one's been punished. Only one person audited. one's been punished. Only one person audited. So this is one of the least enforced federal laws on the books. And so therefore, because it is not enforced, it is one of the more frequently violated federal laws on the books, quite frankly. And it's violated all over the place, on the books, quite frankly, and it's violated all over the place, constantly. In multiple churches, on behalf of both political parties or even minor parties, it is frequently violated.

And so it's one of these areas where you'll see people online say, oh, well, you can't do that, is the head of a 501c3. Right. According to the Johnson Amendment, you cannot do that. IRS, what are you going to do? IRS, deafening silence. IRS, deafening silence. And so that's where we are right now. So this is a 1950s law, extremely rarely enforced on churches, extremely rarely enforced, and frequently violated. So that's the background. It also is interesting because there's a lot of things that are short of endorsement that one could say. Now, we're past a magic words test. You know, back in the pre-Bikra days, there were like magic words that you couldn't say for FEC purposes in certain windows before the election.

Literally, as long as you said some other synonym, you were fine. Vote for, endorse, vote against. But if you said send a message to, no problem. So we're past the magic words test. However, I think it is also clear, even though the law isn't being enforced much, that even if it were being enforced, the definition of endorsement itself would be pretty strict and tight. endorsement itself would be pretty strict and tight. As in, you really need to be obviously saying, hey, you, go vote for this person. And this message has been endorsed by this organization itself. So for instance, playing a video from the vice president, I think there would be some question over whether that was an official message from the organization itself.

Again, I'm not saying there's not a pretty good argument that it is an official message, but that would be part of it. Second, if she simply talks about all of the great things that Terry McAuliffe has done for Virginia when he was governor before and what he's running on, that'd be a real question of whether that's an endorsement. And then, of course, three, if she says Terry McAuliffe was the best governor Virginia ever had. It's so important for you to go vote next week. That's going to be just fine, especially under the current iteration of the Johnson Amendment. So what's interesting is I never saw the video. I tried finding it online. And so it's hard to know. So for all of you who are like, but does it violate the Johnson

Amendment? Honestly, I'd need to see the video and I would need to see how it was introduced by pastors to sort of look at both of those. Was it an endorsement and was the video itself officially endorsed by the pastor? And to be very clear, I'm not saying that the prohibition on political participation by C3s or political endorsements by C3s is never enforced. What I am saying is churches, First, what I am saying is churches specifically, it is rare. It is rare. And it is frequently, frequently violated. You know, another way, Sarah, this is something that I grew up seeing, voter guides.

Yes. So you'd have in the foyer these voter guides and the way the voter guides are written, it's basically. Candidate A wants to kill babies. Yeah. Everything good in life, candidate A supports. Everything that is grotesquely evil, candidate B supports. But you do you. Yeah, yeah.

You do you. Yeah, exactly. So, yeah, I mean, this is something that it's been an issue forever. And the interesting thing is what a lot of people think of it is when they think of the Johnson Amendment, they think, but they don't even think of the Johnson Amendment. They think of this prohibition on political endorsements as almost sort of in the Constitution. Right. The separation of church and state, which is also not in the Constitution. Right. The separation of church and state, which is great move by the IRS. And number two, I'm not so sure that they're super confident that it would withstand constitutional scrutiny, especially in the current court. So, yeah, I think that's one of the reasons why it just kind of is one of the laws that I hate the most, which is just a law sitting on the books.

Not enforced, but the subject of lots of controversy. And affecting behavior. I don't think there's any question that the Johnson Amendment, by virtue of it sitting there, affects behavior. Correct.

Exactly. Exactly. Shall we move on to... Yes, next. Sarah, tell us why the internet was really off base with Kyle Rittenhouse. Oh.

I love the look on your face. Where to begin? Narrow that down, please. Okay. Kyle Rittenhouse is the young man who, at sort of the peak of the protests over the summer, goes to Kenosha, Wisconsin, where he is not from, at what he says is the invitation of businesses to help secure them from looting and whatnot. I'm going to now skip ahead to the actual moment where he shoots one person who dies from their injuries and shoots another who is injured.

He is now on trial for murder. The judge recently issued a ruling that the prosecution could not refer to the decedent or the injured party as victims, but as the headline goes, the defense could refer to them as rioters, arsonists, and protesters. It's so misleading and not helpful when you just jump into a trial without any background on how these things usually go. And so I thought, David, that you and I could break this down a little for people. Without, by the way, I have no, I do not want to go into whether it was self-defense under the law, but rather how self-defense works when that is your defense to anything, to killing someone, et cetera. So to start with, self-defense is an affirmative defense. As in, you know, in when we think of criminal law, the burden is on the prosecution to prove the defendant guilty.

So you don't have to put up a defense at all. You can sit there through the trial. The prosecution makes their case. And this happens sometimes where the defense stands up and says, we do not believe that the prosecution has met its burden and we will offer no additional evidence. Because it's up to the prosecution. What's different in a self-defense case, and this will be very relevant,

is it's an affirmative defense. Meaning the prosecution needs to prove that you killed someone intentionally, but then the burden moves to you, the defendant, to prove that you did it out of self-defense. Burden shifting. That's unusual in our criminal system because, of course, we want the tie to go to the defendant. Our whole system is sort of premised on the tie going to the defendant. And that's why self-defense is kind of weird. The idea of why it's an affirmative

defense, of course, is that how, how could the prosecution prove the negative, right? How could you ever prove that it wasn't self-defense beyond a reasonable doubt? And so that's sort of why it's on the defendant side. All right. So starting with that, and just to walk through some self-defense things, right? You can't create your own need for self-defense. So David, you and I are at a bar. You are talking about how social media isn't addictive. I'm saying that it is. Things get heated. I punch you in the face and then you are, you know, bigger, stronger, burly guy that you are, um, you, you know, hit me, shove me back. And then I shoot you. Yes. And I say self-defense he's bigger than me. I feared for my life at that moment. And it's like, well, no, you assaulted him. You created that whole situation. Right.

Um, now it gets kind of messy. Like that's, that's a pretty clear, no, you assaulted him. You created that whole situation. Right. Now, it gets kind of messy. Like, that's a pretty clear-cut example, but there's all sorts of, you know, did they create the situation? And in fact, this Rittenhouse case may be one of those. Although most defense attorneys that you will speak to about this say that not only is this a winning self-defense defense, but in fact that in any non-political,

and I'm actually using political in the small p here, I consider OJ to be a political prosecution, meaning there is pressure from outside, that in a non-political situation like this, the case would have never been brought. That in in fact a lot of these where the prosecution is like well you know they've got a really reasonable self-defense argument they simply do not bring the case whereas with oj you know you had to bring the case with kyle rittenhouse you know you had to bring the case the prosecution didn't really get to decide whether they thought they had a winning case it It didn't matter. Right. And one of the nuances of the provocation is, boy, this gets, let's suppose you shove me

and I shove you back. And then you're like, my bad. And you turn around and you start to walk away, but I'm not having it. I keep coming. Well, then all of a sudden, you have a right of self-defense that starts to lock in. So you've tried to retreat. I don't allow you to retreat. The other thing about it is that- There's also escalation.

There's escalation issues. Beyond what is reasonable in the situation. Yep. There's a shoving match and then a gun comes out. That's escalation yep you know there's a shoving match and then the gun comes out that's escalation um so this is this is something that is relatively complicated and and the issue about the use of the term victim so there's a couple of things that are um there are a couple things that are important about this if you're using the word victim there's a way in which that's prejudicial to the defense

because you're presuming, the language presumes the ultimate resolution of the case. Right. It's the very thing the defendant is trying to prove. And so if the prosecution can use the word that goes to the conclusion of what the defendant is trying to prove in the negative, it is by definition prejudicial. If someone's a victim, they're your victim. Therefore, it wasn't self-icial. If someone's a victim, they're your victim. Therefore, it wasn't self-defense. If it's self-defense, you were the potential victim. You were being aggressed. Is aggressed a word? It should be. It is now. It is now. Okay. It is now. It's absolutely a word. And the other thing about the rioters and looters,

I think there was a little bit more nuance to the trial judge's opinion about this. Way more. I really hated that part of the headline because it is accurate that the judge said the prosecution could not at any point in the trial refer to the decedent as the victim. But it is not true that they said, and throughout the trial, the defense can refer to the decedent as an arsonist and rioter. can refer to the decedent as an arsonist and rioter. Correct. But essentially what the judge said is that if during the trial you present evidence that the decedent or the other person who was shot

was an arsonist or a looter, you can use that characterization in closing argument. Closing argument only. Correct. Not opening statements. Not opening statements, which are a difference broadly between opening statements and closing argument, is opening statement is a statement of what you intend to prove.

This is what the evidence is going to show. A closing argument is where you unleash your sort of like pulpit minister stemwinder of an argument. Yes. stem winder of an argument. Yes. And they also can't use it, by the way, on cross-examination, witness testimony. Did you see the arsonist move toward Kyle Rittenhouse? Nope. That's not going to be what happens here. Exactly. Exactly. So, you know, my last trial that I did, I remember being very careful in opening statement. Ladies and gentlemen of the jury, being very careful in opening statement.

Ladies and gentlemen of the jury, the evidence will show. The evidence will show. You will see evidence that. You will watch deposition videos that depict. I mean, everything was prefaced like that. And the very end, I remember saying, I think one of the closing words were, when you took your oath as a juror,

you swore to uphold and defend the Constitution of the United States. Now is that time. So very, very different. Yeah. So that was my whole beef with a lot of what I was seeing on Twitter and the outrage. It, of course, does not matter the political identification or situation of the defendant, which in this is why people are so upset about it. What will matter is in, did he provoke it? You know, did he actually start the fight, so to speak? In the moments before, it actually will look a little like the qualified immunity stuff that we've talked about.

In those few moments before he shoots, was he in reasonable fear for his life? And the prosecution doesn't, you know, that's how it works. Our system ties the hands of the prosecution sometimes because we want to give the tie to the defendant. And in this case to refer to the decedent as a victim, you know, is basically like, and therefore there wasn't self-defense. How can you be the victim of self-defense? So let me continue to use David, um, as an example here, uh, you know, David

finds me in a dark alley, shoves me to the ground, puts a gun to my head, and then I stab him in the stomach and run away. If at my trial, they keep referring to David as the victim, what the what? Clear self-defense. Clearly something very bad was about to happen to me in that scenario. To refer to him as the victim would be highly prejudicial. The victim of what? Of my attempted murder and rape? God only knows. No. And on the flip side, you know, I think it is a closer call whether the defense should be able to refer to the decedent as an arsonist, rioter, protester, etc. But they can't refer to him as that throughout the trial. We are only talking about it at the closing argument.

And I saw none of the headlines make that distinction, which I found very frustrating. Right. And one of the issues that will not be terribly relevant is one of the biggest questions about the whole affair, which is what on earth is a teenager doing in the middle of a riot with an assault weapon? I mean, with an AR. The wisdom of being there,

why does this person go? That's not at issue in the trial. Yeah, which is the same, by the way, as the police officer qualified immunity stuff that we've talked about, where let's take the Eric Garner situation where the guy is selling loose cigarettes and six police officers try to tackle him to the ground.

He's resisting arrest. Like some of the question there is, did six police officers need to tackle someone who was selling loose cigarettes did they create a situation that was dangerous for themselves and for Eric Garner that's a little bit similar

to this Kyle Rittenhouse situation in the sense that legally it doesn't really matter right right or why is New York prohibiting the sale of loose cigarettes? Oh, I can't. And we'll take a quick break to hear from our sponsor today, Aura. Ready to win Mother's Day and cement your reputation

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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. Sarah, please tell us about those. I cannot wait for this you kids get off my lawn rant from millennial Sarah Isger. The New York Times has a great piece about the tension, the friction between millennials, elder millennials specifically, like myself, who are now the bosses, the CEOs, the managers of Gen Z, our little siblings in the generational world and that we really, really don't like them. We find them to be egregiously bad employees. Now, we've obviously sort of like culturally talked about these Gen Zers demanding increasing wokeness or, you know, the Slack channel warriors who then, you know, go out in the streets thinking that they're on the side of righteousness and everyone agrees with them when in fact they're becoming increasingly a minority in terms of their extreme views.

That's not really what this article is about. Although perhaps that's a symptom of this. This is more literally the management employee side where, look, as a millennial, elder millennial, we were just starting out in our careers when the financial crisis of 2008 hit. And I think that's where some of our hustle comes from. This idea that like we got to work, we got to prove ourselves. Those Gen Xers suck, by the way. They're like they're cynical, lazy, grunge-wearing, Nirvana-worshipping losers.

And, you know, we're amazing. And we're just going to crush it and drink nitro coffee and work till two in the morning. But we're going to have a foosball table while we do it because we work hard and play hard, man. And these Gen Zers are coming along at almost the exact opposite in the labor supply and demand

curve. There's been a pandemic where now employers are desperate to find more employees and trying to get people to come back to work. It's part of, I think, what's driving inflation is the wages that are required to get some of these Gen Zers to go work for a living. And the result is, I mean, some of the quotes in this piece, you know, the one Gen Zer calling in and saying like, hey, I woke up and I'm not in a good place mentally. I'm not going to come in today. What? Gen Zers taking off work for menstrual cramps? Texting the CEO to ask if they have Juneteenth off? Hey, look, Juneteenth, one of my favorite holidays because I'm actually from Houston and we've had Juneteenth as a holiday for a long time. The idea of asking, though, for Juneteenth off in Houston even, no, I don't even ask for federal holidays off. That wouldn't have occurred to me. Basically,

if you have not affirmatively told me that we have that federal holiday off, I assume my butt will be coming to work. And then perhaps the best, at this one startup, And then perhaps the best, at this one startup, a Gen Z employee sent a Slack message assigning the CEO a task to complete. That's my favorite. In an interview, one of them said, I understand you've mentioned that the work hours are 9 to 5, but if I complete my assignments, I can just leave after lunch, right? And they're like, no, we expect you to be here from nine to five, our working hours. And the Gen Zer was like, why? Why would I ever do that? Oh, we have to explain really fundamental stuff to you, Gen Zers. So David, the political tomatoes that they are, which is just, I'm going to call them political tomatoes from now on. It brings me a lot of joy.

This is not new. Going back to, you know, Greek philosophers, the older generation was always complaining about the younger generation. I think millennials are such an improvement over Gen X. Oh, the slander. I'm curious how you could have like where,

what like nitpicking faults you might've found with us millennials when we were coming up. Well, I mean, all of these critiques that I'm reading in the article were leveled at millennials. No, no. Yes, oh yes. So, I mean, if you go back into the early days of YouTube,

you will find humor videos of what it's like to have a millennial in the workplace. Like, here comes the millennial, and they have handed in a report that you've asked them to prepare, and you say, thank you, and they just stand there for a while. Thank you. They just stand there. and you say, thank you. And they just stand there for a while. Thank you. They just stand there.

Oh, no. Good job. Great work. And so, but. We're like old retrievers. We're just so friendly, but we do like, we like paths. We like scritches. Yeah, it was.

So that was the, you know, I cannot tell you how many times, you know, people in my generation were saying this is the, when dealing with millennials, you're was this whole cohort of millennial age folks who knew the reputation of their generation and deliberately tacked against it. And so every single law firm I worked at, every single nonprofit I worked at, the millennial age employees we had were killing it. I mean, they were working incredibly hard and in many ways were kind of dismissive of a lot of their peers. And so I think that there was this generational, this divide in the millennial world. And a lot of it is, I think a lot of it is that the people who covered millennials were mainly on the coasts and they are mainly talking into, you know, in the creative

professions or in, in other kinds of professions where individuality, uh, is, is put on a premium and they weren't really covering or knowing sort of what the workplace was like all in the whole rest of the country. And so they created this image of a millennial that a lot of just normal folks reacted against and were the opposite of. So that was my experience was that there was the reputation millennials had as the participation trophy generation. And then the actual millennial colleagues I had who sneered at these peers and were just working like crazy. But I have minimal Gen Z exposure. I think as a reaction to the financial crisis shaped by September 11th, millennials work too hard. We're just too hardworking, too perfectionist. No. but I actually do think that.

I think that that whole work-life balance conversation that Gen X wanted to have, we rejected that and that work was life and life was work. And that's why we wanted to find meaning in our jobs because we weren't distinguishing between work and life. They were all gonna be the same thing. You were gonna spend all of your time with your colleagues. You were going to work till two in the morning. It's why those foosball machines came in and nitro coffees and making the workplace more like your

living room because we weren't distinguishing between the two. But David, I have a theory to run by you of why the kids these days effect has always been strong through human civilization. It is because the people working for you by definition are not the generation that you yourself raised. The generation below you is always one off of your own kid cycle. And so whereas you might be very forgiving, like you probably should be more forgiving of Gen Zs because you raise Gen Zs. You understand them.

You kind of get where they're coming from. Just like I will be, I think, far more forgiving of whatever. We're at Z now, so we're out of letters. I literally read that we're calling Nate's generation Gen A. We're just going to start the alphabet over? Yeah, absolutely. So yeah, I think I might be way more forgiving of Gen As because I created Gen A.

They are reflecting my parenting values. And the reason that we so hate that other generation is because the Gen Zers are reflecting the Gen Xers values. So the lazy, cynical, grunge-wearing Gen Xers have spawned these, I don't want to go to work today because I have menstrual cramps, Gen Zers. And so us millennials hate them. Well, also, I think part of the you kids get off my lawn phenomenon is related to the fact that we don't really have an accurate perception of our own 25-year-old selves. No, that's fair. Yeah. So we kind of, the halo effect kicks in. When I was 25.

I mean, you say that, but David, you are not getting some of these emails that I get from students. Let me just, let me, after sending the syllabus out, these were not undergrads. After sending the syllabus out to not undergrads, two emails asking me when the class met. Three weeks in, I got one asking where the readings were, how to get the readings. Three weeks in. And David, the very best email was one saying, I'm sorry I missed class yesterday. I got confused over the dates of fall break. And I thought to myself, oh no, did I schedule a class over fall break for a variety of reasons about this class? That was very possible and could have happened. So I went to look at the academic calendar again, just to make sure I didn't screw something up. There was no fall break. So I emailed the student back and said, I'm confused. Is the fall break

not like, what is the fall break? And she goes, oh, I just assumed we got a fall break. So I missed all my classes this week. What? No, that is not a halo effect, David. I never created out of whole cloth, a fall break for myself. And then inform my teachers after the fact that I just took it. You know, come to think of it, there might be something to this Gen X is replicating itself in Gen Z. Yes! write this up because I'm sitting here thinking about my young self. And I wrote a Jerry Maguire memo to the managing committee of my law firm in my mid-late 20s about lifestyle, work-life balance, all of this stuff. Yeah, y'all are so obsessed with your happiness. You're so obsessed with your happiness.

Yeah, I volleyed forth as a second year associate, a Jerry Maguire memo. And I remember, no, it wasn't second year, maybe fourth year, fourth year, even worse, even worse. Like I've got partnership like on the horizon. I'm volleying a Jerry Maguire memo. And then I went to work at, I went to teach at Cornell Law School and we decided we didn't like, love living that

far north. And so we came back and I'll never forget, this is the exchange that occurred. And I called my old law firm where I had volleyed the Jerry Maguire memo and called my mentor, the guy who really trained me in the practice of law. And I said, would you be willing to have me back? And he said, hold on. He says, I'm going to call the, he called the member, what they called the member in charge, the head honcho. And I believe this was the quote, if you can stomach him, you can have him. So that's how I returned to my law firm. And so there might be something to this, Sarah, which might be one of the reasons why I was somewhat tolerant when a Gen Z intern at National Review and a conference call called me a heretic. So maybe I was remembering my Jerry McGuire memo days and had a bit of tolerance for that. Well, for those listening, don't worry.

Sunny days are heading our way soon enough. Well, in about 10 more years when the Gen A's come of age that have been raised by your wonderful millennials who believe in hard work and hustle and that, you know, our lives are one coherent whole and we don't wear flannel and combat boots. By the way, note what the Gen Zers are wearing.

They're wearing all your Nirvana crap. Doc Martens are back. So I'm an older Gen Xer. So I just want to say for the record, I was against the Nirvana thing. I was far more down with the hairband era. Like far more was far more down with the hairband era. Like,

far more. Far more. So, I apologize on behalf of my generation for grunge. That was not our best self. The skinny jeans

and capri pants will be back in 15 years. Thank you. I think the worst aspect of Gen X, and we're just beating this subject like a drum,

but is that we came of age, really, a lot of my peers came of age. Since I'm older, Gen X, I experienced a lot. You know, I grew up during the Cold War, but a lot of my generation comes into adulthood at a time of massive prosperity. The threat of nuclear war

is removed from over our heads. We are the sole superpower in the world. The French diplomats referred to us as the hyperpower. And what was the dominant feeling about Gen X? Man, our lives are the worst. Yeah, y'all are so put upon

and so entitled to constant happiness. All right. I know. I know, Sarah. Well, Monday's going to be a huge show. This was a nice break, but Monday is the SB8 argument. Woo! It's going to get real, real fast.

But speaking of continual happiness, well, there's no such thing because this podcast has to come to an end. Nice segue there. So we'll be back Monday. Huge episode on Monday. Also, again, please join the dispatch, especially today. A great, fantastic morning dispatch about the gain of function research

in the matter of Rand Paul v. Anthony Fauci. I've got an Ask Me Anything for Members Only tonight. Also, as always, go rate us on Apple Podcasts and please subscribe on Apple Podcasts and we'll talk to you next week. Thank you.