Advisory Opinions - Shouting Fire in a Crowded Theater

Episode Date: August 9, 2022

Sarah and David tackle the events of last week: the verdict in the Alex Jones case, and the story of Breonna Taylor and the court’s surprising indictments of several police officers. Should there be monetary limits on punitive damages? And why, in this day and age, does everything need to be entertaining? Plus: Our hosts explore what court precedent actually lurks behind the concept of shouting “Fire!” in a crowded theater.   Show Notes: -New York Times: What To Know About Breonna Taylor’s Death -French Press: Supreme Court Precedent Killed Breonna Taylor -U.S. v. Perez -Schenck v. United States -New York Times: I Didn’t Want It to be True, But the Medium Really is the Message Learn more about your ad choices. Visit megaphone.fm/adchoices

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I was born ready. Welcome to the Advisory Opinions Podcast. I'm David French with Sarah Isker. And normally on August, what we do is a Tuesday nerd guest followed by a Thursday law podcast. But we're flipping it around this week. We're going to start this week with the legal podcast because a lot of stuff has happened over the last several days, an unusually busy legal August so far. So we're going to cover three big topics today. One, we're going to talk about the Alex Jones case, the surprise revelation that the plaintiffs had obtained the information on Alex Jones' phone,

that the plaintiffs had obtained the information on Alex Jones's phone, apparently without Alex Jones's knowledge and consent, which is a wild issue, not just from the standpoint of drama in the courtroom. It's kind of a wild legal issue. We're going to talk about the verdict against Alex Jones, punitive damages. There's a lot of layers there. Then we're going to talk about the Breonna Taylor indictments. There are federal civil rights indictments that have been filed in the Breonna Taylor case. And we need to talk about those because, and by and large, they do not relate to the actual shooting itself, with one exception that we'll discuss. But that is a major development in the case. And then the last thing is we're going to talk about shouting, or is it falsely shouting,

fire in a crowded theater, except doing it, what, on social media. So it's going to be a fun podcast. Sarah, let's start with Alex Jones. And let's kind of give people a peek behind the curtain because there was this small nuclear detonation last week when there was a lot of reporters are, the lawyers for the plaintiffs, the family that was defamed by Alex Jones, they were accused that Sandy Hook was a hoax and that they were crisis actors, reveals that he has obtained Alex Jones's text messages and emails, reveals it while Jones is on the stand, much to Jones' surprise, and reveals that how did he obtain it? Because Jones' own lawyer gave the contents of the phone to the plaintiff's attorneys without Jones knowing it, without Jones consenting to it. And two things at once happened at once. One was the internet explodes. And two was on Slack, you and I immediately start talking about, wait a minute, how can you bring this up at trial? So Sarah, do you want to explain?

Yeah. So first of all, of course, Alex Jones has this default judgment entered against him. So this isn't the merit stage. All of this is just damages. And so a lot of this turns on the financials of Alex Jones and his company. Alex Jones also, by the way, is in bankruptcy court right now and has had his salary taken down to $10,000 a week instead of the even more absurd and his credit card. Now he can't do the $350,000 a month of personal expenses on the business Amex. Anyway, that's beside the point. So yeah, so this is the damages phase. And like you said, David, I immediately get on Slack because everyone on Twitter, of course, everyone on Twitter is a lawyer as it turns out or something, is like, oh my God, worst lawyer ever,

Twitter as a lawyer, as it turns out, or something. It's like, oh my God, worst lawyer ever sends his internal documents to the other side. And I'm on Slack with our dispatch staff and I'm like, whoa, whoa, whoa. This happens all the time. And there are very clear legal rules and ethical rules for opposing counsel that if something is inadvertently sent to you and you know it's inadvertent right away, you can't even open it to read it. If you don't know what it is, you can read it until the point where you figure out that it's inadvertent and you have to inform counsel that they've sent you something accidentally and then you have to get rid of it. You can't keep reading it. And even though it seems like there should be a, you know, well, if you screw up,

the other side benefits, we've just decided that's not, it's in the opposite case in law. Now, there's obviously some limits to this. It has to be privileged and not just attorney-client privilege, attorney-work product privilege. There's other types of privilege, things like that.

You know, there's limitations. And one of the limitations, David, of course, is that because of those privilege issues, if you tell the other side, like, hey, I think you sent this to me accidentally, and they're like, oh, F, none of this is privileged, they can't just run out the clock and not respond or stick their fingers in their ears. They do actually have to respond and tell you, this is privileged. Please delete the email and send receipt that you've deleted the email. There's actually a pretty known way to do this. Again, I don't know any lawyers that this hasn't happened to on one side or the other. Either they've gotten inadvertently disclosed material or sent it. By the way, it's usually not always someone on the staff, as it was in this case. It was a paralegal, which must just, your heart must drop. I certainly

feel badly for this person, even though their client is odious. So, David, there's set rules for this in Texas, which you found. It's a 10-day... You got 10 days to respond if a lawyer says, hey, I think you sent this to me inadvertently. After those 10 days, you've waived everything.

10 days is a long time, though. 10 days is a long time. So the lawyer turns it over, is notified that he turned it over, and doesn't do anything about it. Well, he says, disregard. Disregard.

So, yeah, he literally, he says, he asked the other lawyer to, quote, disregard, end quote, the link. That lawyer says the disregard request didn't comply with the, it's called a snapback rule. And because you have to identify why. Yeah. Is this privileged? Right.

Why do you get it back? You can't just say disregard. And so as this lawyer said, that response of disregard created, quote, no legal duty on me whatsoever. I think that's quite true because the other element about this that's interesting is apparently that phone contained not just privileged information. We don't know how much privileged information was on there, but it contained discoverable information that had been wrongly withheld. So, yeah, the word disregard doesn't get it done because you can't say disregard the wrongly withheld discoverable information we disclosed. Yeah, completely underwhelming

response. And what you were saying about this happening every time, or happening all the time, the very first case, a federal case that I worked on in my life, Sarah, I was getting ready to do a deposition, got a letter and a package from opposing counsel right before the deposition. And it said, our apologies, we have recently discovered responsive information that we, information responsive to your discovery request that we inadvertently failed to disclose. So there's a letter on letterhead from the law firm, discoverable information we inadvertently failed to disclose. Fine, whatever, that happens. I was a little annoyed that it got to my desk about five in the afternoon before I'm doing a deposition the next morning. Always. Thought it was dirty tricks. Open it up and you know what it is? The entire attorney-client communication file.

What? Well, that wasn't supposed... That's not... Nope. Nope. That's not discoverable. Nope. That's not discoverable. It was the entire attorney-client communication file. Ooh, that staff person. That was definitely a staff person who misunderstood which things to copy. And, you know, at first I'm reading, because what happens is if you know that what you have is accidental disclosure.

So let's say an attorney leaves a notebook on a conference room table, which that happens all the time, by the way, all the time, somebody gets up from a deposition and a notebook is there. The first thing you do is you grab the notebook and you say, you chase them out the door. Or if they're already out the door, you call them and you say, your notebook is on the table. You do not pick up that notebook and start going through it because you know they didn't intend. That's not how discovery works. But if they send you discovery, I start reading it. And I'm like, wait, what am I?

And I'm a young, young lawyer. And then I read it, like the first couple of pages, I read it and I was like, you little liars. Oh no. I read it and I was like, you little liars. Oh, no. Because there was communication in there that completely contradicted their... Anyway, had to give it back. Gave it back. And couldn't use it.

Couldn't use it. Couldn't use it in the case. Had to give it back. But just as an illustration, this kind of stuff happens. That's why we have rules that cover it. And so the actual disclosure of the information is not as shocking as responding to the disclosure so inadequately. So then, I mean, I found it very strange.

There's video of Alex Jones on the stand, and he sort of gives us like, oh, is that your Perry Mason moment? That's all you've got? Yeah. And it's like, um, he just proved that you're lying, but okay. With text that you said didn't exist, that absolutely did, but the lawyer was sitting there doing nothing. Nothing. And his client was ambushed. Yeah. client was ambushed. And look, part of a Perry Mason moment generally is that the person on the stand gets ambushed and the other lawyer jumps up and starts wildly objecting just to try to give

their client some time to think for a second and maybe get a sidebar, like anything they can do. to think for a second, and maybe get a sidebar, like anything they can do. None of that happened. That's what was fascinating to me. The lawyer just sits there and is like, uh-huh, uh-huh. Yeah. Uh-huh. Or you... So he does file an emergency motion, by the way, with the judge

to order counsel to return the inadvertently produced documents, seal everything that's already in evidence, and then give him a few days to turn over the things that he was supposed to turn over in discovery, but didn't on purpose. You will not be shocked to hear the judge was like, nah, dog. Yeah.

You had your chance to turn it over in discovery. You had your chance in the snapback time. This is it now. It's just in. Yeah. You can be lazy and careless. You just can't be that lazy and careless. You can't be both at the same time.

Yeah. Or for more than 10 days. I mean, it's just, wow, wow. So that happens. And so it was really interesting, the cycle of what occurred. And we'll kind of try to break this down a little bit. And as you said, this case was in a posture where Jones could not dispute that he lied. Okay. Because a default judgment had been entered against him. A default judgment means essentially that he either didn't contest the case or was so

dilatory or obstructive in contesting the case that judgment is entered against him. So judgment was entered against him without a trial, without a conventional summary judgment motion because he was so obstinate in refusing to be forthcoming and providing documents and cooperating with court proceedings, the court said, up yours, Alex Jones, you lose. Now we're going to have a trial over damages. So he kept trying during the trial to sort of justify his behavior, but that ship had sailed. but that wasn't that ship had sailed um he was deemed to have defamed and he did he did defame these parents and so the issue was how much money were they owed in compensatory and punitive damages so i'm going to tell you just briefly if you're not a if you're not a lawyer if you're a

lawyer um you can hit the forward 30 seconds button. And if you're not a lawyer, compensatory damages are designed to compensate you for actual measurable loss. So if you lost a job, what's the salary? What's the present value of the salary that you had? Medical bills, therapy bills. If you had to pay for security at your house because of death threats. If all of these things are compensatory, often they can be quite precisely calculated, sometimes not. For example, damages related to pain and suffering. How are you compensated for anguish? Because that's a loss that you've suffered,

an emotional loss that you've suffered. What's the dollar figure there? And there's a lot of subjectivity attached to it. And then punitive damages are something else. Punitive damage are designed not to compensate, but to punish, to send a message that we as a jury, as a society, are saying this conduct is way out of bounds, and it's generally only available, it's generally, it's not widely available in court cases, especially cases centering around negligence. But if you're talking about intentional or reckless misconduct, that's when punitive damages tend to lock in. But there are limits on those. There are limits on those. So Sarah, when you first heard the $4 million compensatory, what was your thought?

Yeah. Yeah, it's a multiplier for the punitive. So it doesn't matter what they give as punitives. The punitives have now already been decided. And unfortunately, you can't tell a jury that. You can never tell a jury that their punitive amount won't matter. But in Texas, it largely doesn't matter that much. Just some fun Texas history. Probably the most powerful political group in the state of Texas from the mid-90s until quite recently, or you could argue even to present, is Texans for Tort Reform. And this is part of it, right? It was putting this cap on punitive damages. Now they end up getting their fingers in everything else in the state, but it starts as this anti-trial lawyer, you know, these wild punitive damages and tort cases and trial

lawyers who were just making tens of millions of dollars and had private jets and were Democrats. So Texas for tort reform was the Republicans trying to starve out the plaintiff's side lawyers. Part of that means that Texas has generally a very, very negative view towards punitive damages. And that multiplier can be pretty low, like two as the multiplier. Two plus $750,000.

There's some wiggle room there. In the end, it gets usually decided by the Texas Supreme Court, as I think it will here. But yeah, I mean, we're potentially looking at about a $12 million verdict against Alex Jones, not the $45 million verdict that the headlines are saying. I mean, that's literally what the verdict was, but it won't matter. Yeah. And you know, the multiples, the max multiples that I've seen constitutionally, not under Texas law, constitutionally now are around 10 times, 10 times your punitive damages. And yeah, most states have it around three, but the max out is definitely 10-ish. Yes, ish. Otherwise they're saying it's basically a due process violation.

Right, exactly. Which makes sense because let's suppose you do something wrong and it costs somebody $100 in a broken vacuum cleaner. Your vacuum cleaner explodes. $100 in broken vacuum cleaner, $5,000 ER visit, etc. X amount of dollars for pain and suffering. But then somebody says, I really hate the way they designed that vacuum cleaner. And that's a big company, and I'm going to hit them for $100 million dollars. Yeah. They knew it would explode. They knew they were selling bad vacuum cleaners. I mean, it can be really egregious facts. Yes. But at some point,

we're going to say that your $1,500 in real damages cannot turn into a hundred million dollar windfall because we want to teach Dyson's a lesson. Right. And I'm glad you brought up sort of the history behind this because this is something where in my professional life, there has been a massive change in the law because- Oh, in the 90s, you would get a $1,500 compensatory judgment and $100 million punitives all the time. I mean, it frankly wasn't that rare. Oh, and the thing that was crazy was, so everyone thinks of the South right now as like the home of conservative jurisprudence.

And the South was the playpen of the plaintiff's lawyer. Where do you think it came from, y'all? Yes, the playpen. I mean, you could go down to Southern Mississippi and some of these class action trial lawyers, their private jets would look like the parking of the airport at Aspen during Aspen Ideas Festival. It's why you have a conception, by the way, of trial lawyers being that good old boy Southern guy. Some of that comes from this wild west day of plaintiff's lawyers getting these huge

class action or punitive damages. And yeah, you're right. They were largely in the South. And those famous trial lawyers with their private jets. Yeah, there were a lot wearing cowboy boots, I'll tell you that. And often ostrich, which was really annoying to me. And often ostrich, which was really annoying to me. Well, and so you would have these, and often in very rural areas. So you would have a very, there was this famous pharmacy, I believe it's in Mississippi, that was one of the most sued pharmacies in the entire United States of America. Because if you wanted to take on big pharma, you might sue Pfizer and Bob's Pharmacy. And you're in this little town of six, seven, 8,000.

And if you're a local lawyer, you might know a significant portion of the jury pool. Like you know who they are, they know who you are. And some of the trial lawyer shenanigans are legendary. There was a trial lawyer in Eastern Kentucky, extremely successful. And his wife was on the Kentucky Court of Appeals and he was known. And his wife was on the Kentucky Court of Appeals, and he was known

for bringing his wife to opening arguments and introducing his wife at opening arguments. This is my wife, judge in the Kentucky Court. Anyway, so there are legendary tales out there of trial lawyer shenanigans. And it really was centered in the South. And folks, that's just mystifying to people. So that's some of the origin of tort reform is changing the political dynamic of the South from a plaintiff's oriented. And it's one of the reasons why business development in the South

lagged behind some other regions is because you were walking into a, you were walking into a liability hornet's nest if you moved a big company down there. So tort reform was part of making the South a more business-friendly environment. And a lot of people, a lot of folks forget that,

but I guarantee you some of our listeners know it and have stories. They definitely do. And, you know, there's two sides to it. On the one hand, it was absurd to have these windfalls,

I mean, large chunks of which were going to the lawyer, of course, very little to the people who were injured. That seemed sort of silly and unfair. On the other hand, you're looking at the Alex Jones thing and thinking, frankly,

$4 million in compensatory damages doesn't feel like much. And here you do want to punish him. And given the amount of money that he is making a year on InfoWars, you know, potentially, God, what are the numbers? I think I've seen like $60 million a year or something.

Yeah, there were some single days when he would make $800,000. Yeah, so $12 million can seem like a parking ticket. Yeah. And we've certainly seen this with other large-scale, for instance, environmental issues where, large-scale, for instance, environmental issues where you cause this huge thing and your profits and operating budget is just so high that sometimes even 2x, 3x cannot feel like it's that much of a deterrent.

Yeah, yeah. And today will feel like one of those days. Now, there are a couple of other trials coming up. It's going to be very interesting to see what those damage awards are. And there are a number of folks online, again, some of the folks who are much more knowledgeable about damage awards, who are saying, look, you might think that they deserve $ 15 million in pain and suffering.

But pain and suffering or mental anguish or whatever, this is actually not something where that's a blank check really either. And so 4.1 million felt low to me. But there were a number of people who said, actually, when you really dive into how do you compensate intangible injury, that isn't necessarily all that low. Yeah. And as you said, there's also the bankruptcy case happening. And poor, poor Alex Jones has already had, he's been cut off from payments to the company Amex for that $350,000 per month in personal expenses,

which included housekeeping. Bankruptcy courts, by the way, really fascinating what they're able to do. I mean, changing your living expenses once you file bankruptcy to say, nope, you don't need to have cable TV, or yes, you clearly need internet, for instance, for your livelihood. Things of this nature. Those are the calls that bankruptcy judges make all the time. Okay, you need a car to get back and forth to work, but you don't need a Tesla, et cetera, et cetera. So Jones will be reduced to $10,000 per week instead of $1.3 million annually.

We'll see what happens in the course of that bankruptcy proceeding. It seems pretty clear, given some of the testimony in the damages trial, that Jones is working really hard to hide assets. Yes. And the bankruptcy court, their job is to go find those assets. And it's U.S. Bankruptcy Court Judge Christopher Lopez. David, do you know what jurisdiction Christopher Lopez is in? I do not. Judge Lopez is in the Southern District of Texas. So I may or may not hear some things about him from time to time and think he is an excellent judge.

Wonderful. In SDT. Good. Yeah. Well, stay tuned. The story is not over. Definitely Alex Jones is on the hook for multiple millions of dollars here.

He'll almost certainly be on the hook for additional multiple millions of dollars awarded by other juries. So stay tuned. And one last thing. Alex Jones is reprehensible. Reprehensible. Reprehensible.

But you know what is more alarming to me than the existence of Alex Jones? That he has that many listeners. That's what's more alarming to me. Like the idea that there's some dude who has those beliefs and shouts from his basement about them, that's life. The idea that he's the equivalent

of some dude shouting from his basement about insanity and evil, and he has the kind of listeners that would give him, what, 50, $65 million in revenue, that is, you know, we're... Annual revenue. Annual revenue. Annual revenue. That is a failure of his listeners. That is a failure. And that's what's more disturbing to me than the existence of Alex Jones alone. Ezra Klein had an interesting piece in the New York Times, maybe we'll put it in the show notes, about how the medium is the message

and that the same way that television changed the type of information and how we even received information so that everything needed to be entertaining. Because the medium television made us crave that all the information we got to be entertainment. News became entertainment. Reality TV was entertainment. Not just Seinfeld and random MASH episodes. That social media is doing something similar in terms of how we receive information.

Therefore, it changes the information we receive. Alex Jones is a great example of that. And I thought Ezra Klein's write-up, he never mentions that, of course. That's not what it was really about, but it can apply to so many things. Oh, gosh. At Real Canadian Superstore,

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with more ways to save at the Super Welcome Store. Real Canadian Superstore. Let's talk about some federal charges. Yes. Now, this is the Breonna Taylor case, which was the awful, awful shooting in Louisville, Kentucky, that I've written about a lot from the standpoint of the actual shooting itself. And to remind folks of the facts of this case, this was originally a no-knock warrant, although the police in the case, the evidence is that they knocked and then battered

down the door in the middle of the night before anyone could get up to answer the door. So they did knock and then they battered down the door. There's a lot of dispute. Most witnesses say they never heard the police identify themselves as police. The police say they did knock and then they battered down the door. There's a lot of dispute. Most witnesses say they never heard the police identify themselves as police. The police say they did and another witness says they did. But battered down the door, out comes Breonna Taylor's boyfriend and Breonna Taylor from the bedroom. Breonna Taylor's boyfriend is lawfully carrying a weapon. He lawfully discharges it at police. Now, how can he possibly lawfully carrying a weapon. He lawfully discharges it at police.

Now, how can he possibly lawfully discharge a weapon at police? He can do it because Kentucky has a stand your ground law, or I mean a castle doctrine, which allows you to defend a dwelling you're at legally with deadly force. And now you can't defend it with deadly force when someone coming in is law enforcement, but you have to reasonably be able to know they're law enforcement. And under the circumstances,

he didn't reasonably know they were law enforcement. The door comes shattering down, had heard no announcement of police, can't see that they're police, fires a shot, hits a police officer, then they lawfully return fire to him, okay? Because a police officer, once you're fired on, you can absolutely return fire.

So what you had was a legal gunfight in which the shooter was not hit, but Breonna Taylor was. She was hit and killed. The shooter got off one shot. The police fired off a cavalcade of shots. Ultimately, a Kentucky state investigation cleared the officers who were in the doorway directing aimed fire towards Breonna Taylor's boyfriend. The fact they missed him and hit

Breonna Taylor, that was not criminal. There was no criminal liability for that. There were charges brought against another officer who fired wildly into the apartment. Okay, this was state. A lot of anger surrounding the lack of charges brought against the people who fired directly down the hallway at Breonna Taylor's boyfriend. But that was legally the correct decision. They were executing a warrant. They executed it. In fact, you know, the warrant was no knock. They did knock even though they knocked down the door. And as a police officer, someone's firing at you, you can fire back. That was the right call. There were a lot of legal

problems, problems with the law that brought us to that point. But here comes a federal grand jury. Federal grand jury last week indicts a number of additional officers, four current and former Metro Police Department officers. Now, they indicted one officer who fired his weapon. Again, this is the officer who fired wildly outside, weapon. Again, this is the officer who fired wildly outside, just recklessly fired into the apartment. But the others were not the officers who served the warrant. They were the officers who, in the words of the grand jury or in the words of the indictment, falsified the affidavit used to obtain the search warrant. The search warrant was a falsified document. And then later afterwards met together to try to get their story straight to cover their tracks.

So this was a circumstance where the grand jury isn't targeting the officers with the exception of the one who fired wildly, who actually fired the killing shots. Instead, they're looking at the circumstances of the search warrant itself and that the violation or the false search warrant, allegedly false search warrant,

violated federal civil rights laws. It violated protections against unreasonable search and seizure. So this was kind of came out of nowhere last week. And Sarah, what are your thoughts on it? Oh, I've got thoughts. Oh, go. Okay.

Let's hear them. Let's start with the one officer who actually discharged his weapon, who was there. Mm-hmm. He had been charged and tried at the state level. The jury deliberated for less than three hours and acquitted him. Hmm.

Hmm. Now, we've seen this happen before in the Slaker case. This is the South Carolina officer who shot a guy running away in the back, planted a taser on him. The state jury hung. And then when the feds came in with charges, he pretty quickly folded and accepted a plea.

So on the one hand, that's not to say that state juries, state trials don't have screw ups, but this one's tough. So he fired, you know, the shooting starts, he backs up, goes outside, and fires through a window where the shades were drawn, so he could not see what he was firing into.

They've charged him with excessive force under the Fourth Amendment. The problem, and what the state jury, at least, we believe, believed, was that he had a reasonable belief that there was a gunfight going on and that the shots he was seeing of the literally the light what do you call it when the light that comes out of the end of the barrel yeah well that the flash from the muzzle the flash yeah was coming from not officers it turns out it was coming from officers. And that he didn't know there was an apartment behind it, which, of course, there was,

including, I believe, a five-year-old sleeping and a mom clutching her five-year-old. And he riddled their apartment with bullets. Yeah, yeah. So really bad. But there's going to be this reasonableness and what he actually knew. Right. And that's what they failed at the state level, And I'm not sure what evidence they're going to have at the federal level that's different aside from a different jury pool,

which I don't love that aspect of it. But as you said, the more interesting part is charging officers who weren't the ones shooting. And let's be clear, the officer who fired the fatal shot at Breonna Taylor has not been charged because as you said, that was a legal gunfight. Just pause for a moment to let that- Which is a horrible thing. Yeah, pause on that. Yeah, like sink in that that was a legal gunfight. But that's a whole no-knock warrant conversation that you and I have had before, though we may have it again today. So charging the officers who actually did the warrant,

they're claiming that they knew that the boyfriend was getting packages from Breanna Taylor's home, picking up packages from there, when in fact they had no evidence of that. That's what this is all going to turn around on the sort of substantive side. And then there's the cover-up, of course, the meeting afterwards to get their story straight, and then lying to federal investigators. It's 1001, y'all, the most fun statute in the world. You just don't lie during the investigation. Such a bad move. I think this is fascinating. I don't know of another time where the warrant officers are charged.

In this case, David, that feels far more legally justified to me. The people who screwed this up are not the ones who showed up to her house, believed that there was a violent drug dealer behind that door, shots fired, they return fire.

I don't know what else you want these officers to do, unfortunately. It was the people who gave them a no-knock warrant and told them there was a dangerous guy who might be there. Actually, what they were told was that nobody, only Breonna Taylor would be there. She'd be sleeping alone. It turned out her boyfriend, her boyfriend unrelated to this other dude, was there and believed it was an intruder, of course. But they were given the bad information by other police officers who had shoddy surveillance, according at least to the indictment, sort of threw a bunch of stuff in there that they knew wasn't really supportable with the facts that they had, but they

like sort of felt it was true. And they just didn't think anything particularly bad would happen. And they knew that they were sending a bunch of armed people at, you know, with no information, no knock warrant, and that those tend to be dangerous situations. So I think that might be a winning case, David. I felt the same way. And I also felt like it is, if you're looking at systemic problems, and this is something that a lot of people get angry when you use the word systemic, they would much rather us focus on individual, like these individual officers are a problem.

There are no systemic problems. But there are systemic problems with the prevalence of no-knock warrants. There are systemic problems, I believe, with the casual way in which a lot of these no-knock warrants are drafted and granted. There's a lot of boilerplate information that is used, boilerplate language that is used. And boilerplate language for the non-lawyers is meaning essentially just kind of cut and paste sections of text that are used across multiple, in multiple different contracts and multiple different court cases and pleading, I mean, in multiple different court documents. So there's a lot of boilerplate here.

There's a lot of casual, the way in which warrants are approached is often can be quite casual, imprecise. And this is something that's saying, wait a minute, we're going to hold you accountable for accurate information in your search warrant materials. And this is, I think this is important. I think this is important. I will say, I think there's several problems here worth noting. One, the criminal standard for liability here

is a lot higher than the civil standard. Civilly, I don't think this would be a close call, but for qualified immunity, it'll be interesting. I'm sure there'll be a civil case. There may in fact be a civil case, I'm not aware, where they're going to claim that lying in an affidavit in the warrant is something that you know you shouldn't do, and therefore it violated her civil rights,

and you can get monetary damages against the police department, basically. And she's already received a settlement. Her family has received a settlement of about $12 million from the city. Yeah. So I think that civil case would proceed pretty well. The criminal case, first of all, we're only looking at the DOJ side and what they put in the indictment. Which it's a slim indictment.

It is. I thought it was. And they're going to produce some evidence that like, no, we did know that he had at some point picked up a package from her house. That's all it's going to take to get a whole bunch of this, of the time involved, at least, gone. I think you're going to be left with the 18-1001, as you always are.

They're going to be able to prove that they lied to investigators after the fact. But that warrant thing may be hard. They really are going to have to be spot on that they had no reason to put that in the fact. Yeah. But that warrant thing may be hard. They really are going to have to be spot on that they had no reason to put that in the application. It didn't come out of nowhere, David. This is, and I would say,

so I'm just reading from the DOJ's summary of the case. It says, the indictment alleges that Janes and Meany knew that the affidavit contained false and misleading statements. Okay, that part, if they can prove it was false and misleading statements. Okay, that part, if they can prove it was false and misleading, I think that's going to be their strongest,

that's going to be the strongest case the prosecution can make. But then it goes on and says, omitted material facts, relied on stale information, and was not- That's not going to work. That's not going to work.

That's going to be tough. So that, I think, might be where this whole thing will be is that they're going to say someone at some point told them that he picked up packages from her house, but they should have known that since they've broken up, he hasn't done it, blah, blah, blah. I don't know that that's going to be enough to say the information was false in the affidavit. Yeah. I mean, that's going to be, if I'm the defense attorney, I'm thinking stale? I'm going to go to a jury. Stale? What is the definition of stale? You know what? Now, false, false, that is something that's going to be much easier. They either had someone say or they had witnessed him picking up packages from her house before, or they didn't. That's what this case is going to turn on.

packages from her house before, or they didn't. That's what this case is going to turn on. But I think as far as the nature of the case, I've always thought of it like this. This is how I've thought of it, Sarah. The actual shooting itself was an outrageous result of outrageous law. Yep. result of outrageous law. Yep. Not so much an outrageous result as of outrageous police misconduct. Because if someone's shooting at you and you're executing a warrant that you in good faith believe is lawful in a manner that the warrant allows you to execute it and you're shot at as a police officer, you're going to be able to return fire.

And I don't think you want a law, a legal standard, anything other than that. Yeah, and the way you know that this is a legal problem is because you could have the exact same outcome with nobody being at fault at all. Yep, they did know that he was picking up packages from her house from time to time. The warrant is totally legal.

And they get a no-knock for, I don't, that part I'm still, the no-knock stuff. The no-knock. It's driving me up the wall. Well, that's where. But it's legal. Yep, that's where laws intersect with systems. So it is becoming extremely fashionable to execute search warrants in a no-knock, with no-knock raids, with no-knock warrants. And part of this is because of the Supreme Court.

The Supreme Court has, A, permitted no-knock raids and not when life or limb is at danger, which I think virtually everyone would agree that that's an absolute necessity of a no-knock raid to preserve human life. The other one is to preserve evidence. Well, when are the circumstances in which claiming that they might destroy evidence

is no longer credible? It might be if I'm doing a no-knock raid to try to find a stolen semi-truck. Well, you know, you can't destroy that. But if it's involving small contraband-like drugs, well, when is the evidence not at risk, honestly? And then it allows for this insertion of boilerplate assertions regarding destruction of evidence. And then here's the really quirky thing, Sarah. There's an odd exception to the exclusionary rule

when you're talking about evidence obtained in a improperly obtained no-knock warrant. So even if the no-knock warrant is improperly obtained, there's some ways that you can use the evidence you get from the no-knock raid, even if it's not a legally appropriate raid. So there's a strain of legal doctrines that led to this moment. But this case isn't trying to overturn those legal cases. That's a Supreme Court matter. This case is saying at the start of the, when the train left the station, the train left the station under false pretenses.

All right, we'll see how that goes. 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. All right, Sarah, do you want to brief us on FIRE or whatever in a crowded Facebook page? I do. You may remember in sort of peak COVID about a guy who posted twice on Twitter that his cousin's friend or friend's cousin was COVID positive

and they had sent him to two HEBs to lick everything. HEB is the best grocery store in America, David. Oh, sorry. Okay. Sorry. I had no idea. HEB, H-E-Butts is the guy's name who started it. HEB is just incredible. Scott and I, as you may remember in our last trip down to Texas, bought an extra suitcase so that we could go to the HEB and fill it with meats and tortillas that we then checked on our Southwest flight back to Virginia. And I'll tell you, we had tortillas last night. We have them several nights a week. My parents will be coming back up soon and we are getting them another suitcase to have this as a perpetual smuggling

operation of good HEB-quality tortillas up to Virginia. They are made fresh in store every day. I'm getting a little off the point. Anyway, this guy said that a COVID-positive person had licked a bunch of stuff in two HEBs in the area And, not surprisingly, the FBI knock on his door, and he's like, sorry, I just wanted people to take the stay-at-home order seriously. Oh, gosh. He was arrested. He was charged with basically terrorism, making terroristic threats. He was convicted.

He got, I think, 15 months. He appealed that conviction on several different grounds. He challenged the sentence itself. He challenged whether this was terrorism because there's like a local law exception. But the part I want to talk about, David, is that he challenged it saying that it was within his First Amendment rights.

His speech was protected. The Fifth Circuit heard this and got their decision out just a few days ago. Jerry Smith writing for a unanimous court on the terroristic threats having a local exception. They made a little bit of law there. They actually said, yes, it does have a local law. If you break it, you're doing something sort of minor. You can't cram it in to this terroristic threats thing. But you, sir, did not just break a little local problem. You made a terroristic threat that had national significance. They also upheld the sentence. And when it came to the free speech part, Jerry Smith said, you've got to be kidding me, nah dog. So one, the speech isn't protected in the first place. If you're threatening someone, true threats are not protected. And to be a true threat, by the way, it doesn't mean that you have to follow through with it or that the threat itself has to be accurate.

It's that the person perceives it as a true threat. You intend it as a true threat. Right. So this guy challenged it both as applied and facially. And David, this is something that trips up law students all the time, the difference between as applied and facial challenges to laws, because actually the distinction is really hard to, judges have a hard time with this, but to put it in the most broad terms, as applied means this law applied to me is unconstitutional.

In facial means there are no set of circumstances or the vast, vast majority of circumstances in which this law would be applied are unconstitutional. He did both. His explanations were like, well, this could cover the Blair Witch Project or other sort of fake documentaries. This is Spinal Tap. Right, is now a terroristic threat. To which Jerry Smith says, no, because you know those are fake. Now, I think the use of Blair Witch Project is interesting, David, because I actually waited in line back in whatever that was, 99 or something?

Yeah, 99, 2000. And at the time, no one was quite sure whether Blair Witch Project was a documentary or not. But pretty quickly, everyone knew. And if I hadn't been a teenager, I might have known a little better. That was just part of their marketing routine. Also, it was about witches, so it was kind of okay to have an ambiguous marketing scheme.

I think it would be a little different if there were a documentary saying that there were a massive pandemic that was going to kill everyone, and it wasn't clear whether it was true or not. I think that would be different marketing. But David, it brought me back to a little bit of history that comes up from time to time, particularly when we talked to Jonah and Steve. Yes. About yelling fire in a crowded theater, because that's exactly what this guy did. He yelled COVID in a crowded grocery store. Yes, but you're omitting a key word. But hold on. All right, all right.

But all the time, anyone's like, you can't yell fire in a crowded theater. Some lawyer will chime in and say, yes, you can. And I just want to kind of take that lawyer down. I want to be clear. I've been that lawyer many a time where I'm the one saying, yes, you can. But let's just explain to everyone where this comes from and what it means. And David,

what word did I leave out? Falsely. Falsely. Falsely yelling fire in a crowded theater. So this comes from Justice Oliver Wendell Holmes in a case called Shank v. United States in 1919. It may surprise you to hear that this was actually an anti-draft thing. People handing out pamphlets that were against the draft. And this is a case, by the way, that causes every First Amendment lawyer in the United States of America to fall into involuntary tremors because it is such a horrible First Amendment case that was relatively quickly repudiated, but this phrase has lingered.

Yeah, and so they're handing out these anti-draft pamphlets, flyers. They get arrested for violating the Espionage Act of 1917. And Holmes, writing for the court, upholds the conviction saying that this was a clear and present danger. And the line is, the most stringent protection of free speech would not protect a man falsely shouting fire in a theater and causing a panic. The question in every case is whether

the words used are used in such circumstances and are of such nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to David, handing out pamphlets saying you're against the draft seems like the most protected speech ever. Yes. I can't imagine something more core to the First Amendment. Yes. And then comparing that, comparing handing out pamphlets protesting the draft in a time of war to falsely shouting fire in a crowded theater. So the way in which this case is sort of rippled negatively through the culture is, number one, that phrase, because it's so memorable, well, somewhat memorable, has led to all kinds of people to justify First Amendment violations by saying, well, you can't shout fire in a crowded theater, like forgetting the falsely part, and also forgetting that this was an atrocity of a case that was, again, quickly repudiated. Totally overturned. Totally overturned by Brandenburg.

Yeah. Totally overturned by Brandenburg. But then people turn around and go, ugh, you obviously can't, you can shout fire in a crowded theater. Well, you can when there's a fire, okay? That's right. Yes, of course you can.

I think most people who are saying you can't shout fire in a crowded theater know that they mean, like it's implied. You can't cause a stampede that will kill people for funsies. Yeah, yeah, exactly. So what a mess. But I think that you, this is the new, updating the doctrine,

you can't falsely cry COVID in a crowded grocery store. Yeah, and you know, First Amendment doctrine, as Judge Newsom in the 11th Circuit is now pointing out on a regular basis, is a hot mess in a lot of ways. Because a lot of the times in our constitutional conversations, basically everything's protected and then we have exceptions. But actually, when it comes to this type of conversation in the First Amendment, David, it's that threats, true threats, aren't protected speech. So you never get to the First Amendment. Right. It's like this threshold question. And so here, it's not that you have free speech and

then it's like, okay, but we now look to see if it meets any of these exceptions. You know, we decide what speech to protect based on its value to society, frankly. And we've decided that obscenity, for instance, has no particular value to society. And same with threats. You say you licked everything at the grocery store. That's a no. Well, you know, and this is actually rooted in the text of the First Amendment. So let me read the text.

Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof or abridging the freedom of speech or of the press or the right of the people to peaceably assemble and to petition the government for redress of grievances. So the question is, what is the freedom of speech? And one of the reasons why true threats are not encompassed in the freedom of speech, the reason why defamation, to go back to Alex Jones at the start of this podcast, is not encompassed in the freedom of speech, is because, or obscenity is not uncovered in the freedom of speech, is that part of the original public meaning of the Constitution depends on what was the freedom of speech when the Constitution was ratified. And defamation, threats, obscenity, were not considered to be part of the freedom of speech. That was the free, you were never free to defame or to threaten.

And so that was not considered part of the freedom of speech. And that's why you have certain categories of communication that have never been considered free speech. And then you have the categories of communication that are encompassed considered free speech. And then you have the categories of communication that are encompassed within free speech. And that doesn't mean you get to say whatever you want, whenever you want, but that's when First Amendment doctrine

starts to get messy. Time, place, manner conditions, government speech versus private speech, et cetera, et cetera. But the reason why a true threat isn't protected speech is it was never considered and has never been part of something called the freedom of speech. Here's the definition of a true threat from the Supreme Court.

Those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals, the speaker need not actually intend to carry out the threat, which gets to another interesting piece of First Amendment law, which is lies. The Supreme Court has said lies are protected speech. But to go back to this, a true threat doesn't need to be truthful. It's a threat and that you truly intended to threaten the person. Not that you truly intended to do the thing you threatened to do. In this case, lick everything at HEB. And it's interesting, the doctrine around lies is fascinating because there are certain lies that are unlawful, consumer fraud.

I don't have the right to lie about if I'm selling a house and somebody says, have you ever had any water damage in the basement? Nope, never, not once. And then like two years ago, true story, we had a hot water pipe burst down in our basement and had to have like completely new, a lot of work done to repair a basement.

So if someone says, did you ever have water damage down there? And I say, nope, no water damage. I'm, if, you know, that kind of consumer fraud is there was a time in which you could win in certain jurisdictions by just merely stating that what was stated was not true. Not that it was an actual lie, but that you could win a consumer fraud case

if the advertisement or statement about a product, good or service, ended up being not true. But that's not the standard any longer. So there are some lies that are actionable, but it's just wrong to say that lies aren't protected. And that's the Stolen Valor case. The guy who said that he had won medals that he hadn't won, the question was whether they would make sort of a de facto rule that lies themselves never got to that threshold First Amendment question like true threats. They said no.

But a true threat that is a lie is still not protected because of the true threat. Right. Exactly. Exactly. So it's a fascinating case. We'll put it in show notes. So one last thing, Sarah. This was a momentous weekend.

I returned to the ranks of truck owners. Congratulations, Sarah. This was a momentous weekend. I returned to the ranks of truck owners. Congratulations, David. I got a Chevy Colorado off-road package. You know how much I'm off-roading. Right. In your suburban Nashville

existence. A lot. You're hauling so much. You got those goats you catch every now and then. It's got a great towing package. Where are you going to put that goat? So there's a method to my madness. Because part of it is madness because I kind of go in and out of truck ownership.

There was a time when I had this. Yeah, you just wanted a truck. I wanted a truck. There was a time I had this giant Toyota Tundra, which had huge hauling and towing capacity because riders need such things. But I have a long-term plan. I intend to up my camping game. Okay.

I'm going to just put money on the table now that, in fact, what you'll be doing is your kids are getting sort of to that point in their early 20s where they're going to be moving a lot. And I think you're going to be moving your kids' stuff around. That is also going to happen. Yeah.

Yeah. Yeah, that's also going to happen. Owning a pickup truck is both fun and in many ways a ministry because... Yes. The amount of time you loan it out is pretty staggering. Oh, I had a friend in Texas who had a truck. And I mean, our little friend group would have to like have a sign-up sheet for who got his truck each weekend.

Yeah. Oh, it's amazing. But it's awesome. I love it. What color? It's black. Yeah. It's black.

Sleek. Very aggressive. Yeah. It's awesome. Nancy even likes it. She was very skeptical. I had to convince her of this, but she likes it.

So momentous. I got to tell you, I'm heading into the market for a new car. I've got a couple of years left. I wanted to look into all the self-driving technology, David. And man, I just want to sit and do Wordle in my car without looking at what I'm doing. Or rather, let me rephrase. I am in my car doing work. Wait a minute. Wait a minute. No, no.

Yeah, so I'm really obsessed with the self-driving technology getting there, but Cadillac and Tesla are kind of the only two at least genres in the game. Some of the others have their similar genres. And Cadillac's the one that's, I think, going to have the actual self-driving technology versus Tesla. You know, Cadillac's the one that's, I think, going to have the actual self-driving technology versus Tesla. Mm-hmm.

You know, Cadillac's mapping everything. So have you ever been in one of these cars when they enable full self-driving mode, like the max that's available? No. So a friend of mine has a newer Tesla, and he got the entire, every self-driving capacity that's available now.

Yeah. And I said, what's it like? And he said, I'll just turn it on and show you it's freaky and weird. And he was 100% correct because you don't realize how much the computer does not adopt human driving methods. So if you're going around a curve,

you naturally sort of shade over to one side to kind of cut the corner. Yep. The Tesla stays right to kind of cut the corner. Yep. The Tesla stays right in the middle of the road. So you think, are we about to cross the center line? And then it just stays in the middle of the road and that feels unnatural. Then the other thing is there's no such thing as a rolling stop. So if you're coming to a stop sign...

Oh, God. So you have to stop the whole way. Yeah. Although I would care less about that if I don't have to be participating. Like, I don't mind adding 10 minutes to my drive if I'm productive on that drive. Yeah, yeah. Wordle counting as a productive activity. It's still like, what's the phrase when something's supposed to be human-like but isn't uncanny valley?

Yeah. There's a lot of uncanny valley moments. And the best explanation I heard for why is that, well, number one, just imitating human quirks is very, very, very difficult. And number two, self-driving really won't be truly, truly effective until the cars can talk to each other. Exactly. And then I want to know the trolley problem answer. And there's only one answer. The answer for all of these automakers has to be that your car has a self-preservation choice. That even if it means taking out 10 other cars,

it's going to choose itself. Because otherwise, no one's going to buy this technology. We're not going to agree to car altruism. Yeah. Car altruism. No. I'm not going to agree to that. And some technocrats make us require our car to sacrifice itself with us in it. Nope. We're not going to go for that. Not going to do that. And we're also going to have the problem of horse and carriages to cars. you know, we're also going to have the problem of horse and carriages to cars. There's going to be the tipping point problem as well. So anyway, curious.

You got a truck. I can solidly recommend if you're abandoning the self-driving technology for now and say to yourself, I want to be able to both take Nate to school and climb some dunes if I want to. The Chevy Colorado ZR2 is, I highly recommend. Where are you going camping first? That's undetermined because I don't actually have the camper yet. That's phase two. Oh, that type of camping.

Yeah. Yeah. So I want to get one of these Airstream campers, you know? Oh my God. Yeah. So you and Justice Thomas are going to troll around the United States? Justice Thomas and I are going to bond in multiple Walmart parking lots. It's going to be glorious.

What about just camping with a tent, David? Well, I have that. I have that. But the plan is to do it with more cross-country type stuff with friends from school. So, yeah. Okay. Okay. Yeah, and I'm sure listeners are just so excited by this conversation.

Well, they've got an exciting conversation coming at the end of the week. Yes, indeed. It is, this one's good. This one is good. You're going to enjoy this one. So that is coming Thursday. So until then, please, thank you for listening and please rate

us, please subscribe, and please check out thedispatch.com.