Advisory Opinions - Stopping the Stop Woke Act

Episode Date: March 12, 2024

Despite a slow start to the week in legal news, Sarah and David have a tightly packed episode today starting with a dissent from denial from Justice Thomas on bias response teams at a Virginia university. The Agenda: —Bias response teams —ACLU vs. NLRB —Florida's Stop Woke Act naw-dogged by Eleventh Circuit —Texas' law on minor access to explicit content at the Fifth Circuit —TikTok: Welcome to the culture war —Kevin Newsom's speech on text, history, and tradition —Be careful with tradition —Understanding standing doctrine —The Oscars and a good legal movie Show Notes: —Federalist Society 2024 National Student Symposium —The Volokh Conspiracy —Luis Parrales: The Oscars in an Age of Distraction —MIT legal complaint Learn more about your ad choices. Visit megaphone.fm/adchoices

You ready? I was born ready. Welcome to Advisory Opinions. I'm Sarah Isker, that's David French. And look, a bit slow start to the legal week that is but nevertheless some fun things to talk about first we will talk about a dissent from denial from justice thomas at the supreme court on bias response teams then we'll move over to florida's stop woke act it got gnaw dogged uh then Then the Fifth Circuit and pornography. I'll wait till David takes a big sip of his water to ask him about porn and see if he spits it out. Then we'll meander around to some

musings on the law, whether it be text history and tradition or standing doctrine. And finally, the Oscars happened and there was a law movie. Spoiler, it didn't win. Law never wins. But we'll talk about it. So David, where should we start? I'm thinking, let's start at the Supreme Court. Dissent from cert denial by Justices Thomas, joined by Alito. This is the Virginia Tech speech code bias response team. Would you like to discuss? Yeah, this was interesting. So you had Justice Thomas and Justice Alito dissenting from a denial of cert in a case involving Virginia Tech's bias intervention and response team policy.

Now, longtime advisory opinions listeners will know what this is. This is where universities have a system that says if you've heard language, seen images, other forms of communication that in some ways offend you on the basis of race, identity, politics, et cetera, then you have an opportunity to report that speech for an intervention, an intervention that could be, quote, educational. In other words, someone's coming to talk to you about your speech and why it raises certain concerns, or it could be a prelude to actual discipline. And so Speech First and others have filed a number of lawsuits against these bias response teams and these bias incident policies on the really, really constitutionally obvious grounds that they are chilling constitutionally protected speech because

these things, these bias response teams are activated even when the speech is clearly, clearly constitutionally protected. And so there's been a number of the university on standing grounds. And then later on, guess what? Changed the policy. And so the ultimate outcome at the Supreme Court was Munsingware vacatur. The judgment was vacated and remanded to the Fourth Circuit. But Thomas and Alito say, no, no, no, no, no, no. let's not vacate and remand, let's grant, cert, and examine, because this is a classic example of a school changing its policies midstream, capable of repetition evading review. And so Thomas and Alito are saying this is a bad First Amendment development on college campuses, we need to step in here. on college campuses, we need to step in here. And I think it's pretty safe to say, Sarah,

if a campus is going to persist with a speed, a bias response team after multiple circuit court rulings, striking them down after this case where you've seen the Virginia Tech didn't really want to take this onto the Supreme Court, changed its policy. You have Alito and Thomas planting a flag. I think if you're a university and you're going with a biased incident response team, you're asking to lose in litigation at this point.

I think that's right. I also think that the Supreme Court was right not to take the case. We actually covered this when the Fourth Circuit opinion came out, and I thought it was a shoo-in if the biased response team had still been in place. But unfortunately, this is a little how the legal stuff goes. You have to play whack-a-mole until you find one that is a school that's willing to take it up. Because if they get rid of it and bring it back and then get rid of it again, you sort of get one free take back, one free legal take back. Like you recognize what you're doing won't survive scrutiny. And so you stop doing it. We're not going to continue the litigation in that case. Now, if in the middle of litigation,

you stop doing it, then the litigation gets mooted out. Then you bring it back and then you get sued again. Then you don't get any more take backs and it will keep going. This is a little like what we saw in the Atchison Hotel case. This was the one about ADA compliance and the woman who just goes around trying websites to see if she can find them not ADA compliant. She withdrew her own lawsuit, basically, and they were like, okay, you get one freebie here. And there was a lot of hand-wringing at the court over that. You notice Justice Jackson, by the way, who does not like Munsingware vacater, said she would not have granted Munsingware vacater in this case also.

And if you're doubting that the bias response policy is overbroad, let's just dispel any illusions that this thing was overbroad. So this is coming from the Alito Thomas dissent. It says, according to Virginia Tech, bias incidents are, quote, expressions against a person or group, unquote, based on, quote, age, color, disability, gender, gender identity, gender expression,

genetic information, national origin, political affiliation, race, religion, sexual orientation, veteran status, or any other basis protected by law. Political affiliation? What? So you cannot have an expression against a person or group based on political affiliation? And look, that's not the only problematic aspect of this but what on earth it is absolutely granting carte blanche to university to investigate people for engaging in virtually any conceivable speech you can imagine that would offend another person um and in fact you you know, the court in its, well, Alito and Thomas in their dissent talk about

these incidents, specific incidents. You know, for example, one report was submitted when, quote, a student in a university residence hall overheard several male students privately talking crap about the women who were playing in a snowball fight calling them not athletic um yeah sorry that's funny because you have to be actually so sexist to think that's something about women instead of the women who aren't athletic who are throwing snowballs exactly exactly if they'd been watching the women's softball team throw snowballs there might have been a different kind of commentary but okay um okay so david i feel like people

don't necessarily believe that this sort of stuff is happening in real life and here's a dispute going on at the nrlb involving the aclu meaning the aclu is actually the focus of this they terminated a staff member the aclu said they terminated her for a violation of her obligation to maintain a workplace free of harassment including in her engaging in repeated hurtful and insightful conduct for colleagues that impugns their reputation and her demonstration of a pattern of hostility toward people of color particularly black men and her significant insubordination. Okay, so Ms. Oh is an Asian woman, and here are the three incidents that are cited. After the

national political director, a manager that Ms. Oh and her colleagues had submitted complaints against, left the organization, Ms. Oh joked in a meeting announcing the departure that, quote, the beatings will continue until morale improves, end quote. The ACLU said this comment was racist because the former national political director was a Black man. Number two, Miss O said in a phone meeting that she was, quote, afraid to raise certain issues, end quote, with her direct supervisor. This was also described as racist because the supervisor is a Black man. Number three, Ms. O claimed that another manager, quote, lied to her when she identified the members of management who had ultimate responsibility over whether to proceed

with a particular campaign, end quote. This was also racist because that manager is a black woman. woman in the complaint the manager who said she was afraid of uh he said that her saying she was afraid was quote extremely disturbing he viewed it as a racist trope involving fear of black men he complained to senior aclu officials he wrote that quote as a black male language like afraid generally is a code word for me. It's triggering for me. The great irony being, of course, she wasn't willing to raise the complaint to her supervisor because she was afraid. And she got fired for that.

So like, she should have been afraid. Yes. Afraid of being fired. Afraid of being fired. Afraid of negative reaction. I mean, that's vindication of her concern. You'd think. but here we are. So I don't know whether this will actually end up being legally interesting, but it is interesting to see the ACLU versus the NRLB since the ACLU is actually trying to prevent its staffer from

reaching the courts in this case. Well, in the ACLU case, trying to prevent its staffer from reaching the courts in this case. Well, in the ACLU case, which is very different from a, obviously, because ACLU is a private organization, Virginia Tech's a public university, but they are illustrative of the way in which a subjective standard can be utterly crushing to free speech. So, and then the subjective standards. You can't say anyone lied based on their race alone. Okay. But if your supervisor was a white male, you could say you were afraid

and you could say that they lied. Right. And the proof of the violation appears to rest entirely with the offense taken by the person. That the words themselves, there's not an objective way of describing the words themselves as racist or harassing. Everything about those words was the context that an individual gave to them. And that you cannot have, again, it's a very different environment. If ACLU chooses

to have that kind of really restrictive environment, I suspect it can do it. Virginia Tech, of course, cannot, but it tried. It tried. And when it was staring the Supreme Court in the face, then it changed its policy. You know, what's interesting and what Thomas and what Alito signed on to were trying to highlight was the legal question over what constitutes chilling speech. Because, of course, this would all be much easier if they simply said you weren't allowed to say certain things or people were being punished for saying certain things. But the actual complaint here is that it still violates the law because it chills the exercise of free speech. And that is really hard to prove. And it, you know, went to the underlying sort of facts and evidence in this case. And so what Thomas is saying is, we need to take a case just to lay out the law on chilling. Next time.

Yes, yes. Speaking of which, David, interesting 11th Circuit decision on what was colloquially referred to as the Stop Woke Act. This was decided by three judges on the 11th Circuit. And you'll never guess who they are. That's my clickbait headline for this. Judges Wilson, Grant, and Brasher. And David, for those keeping track at home of these sorts of things, Grant and Brasher are Trump appointees. Wilson is a Clinton appointee. And no surprise here, they held that Florida's law called the Individual Freedom Act,

which banned certain mandatory workplace trainings, did not even come close to passing muster. Like not, they totally not dogged it. Wasn't even in the ballpark. Yeah. And this shouldn't surprise anybody. I mean, the only way the Stop Woke Act as applied to these private corporations was going to be constitutional is if this goes all the way to the Supreme Court and the Supreme

Court reverses a lot of precedent to hold that it's constitutional. all the way to the Supreme Court, and the Supreme Court reverses a lot of precedent to hold that it's constitutional. Because essentially what we had here was this was viewpoint discrimination. So let me just read the first three paragraphs. This is by Judge Grant. This is not the first era in which Americans have held widely divergent views on important issues, areas of morality, ethics, law, and public policy. It is not the first time that these disagreements have seemed Can I put a pause there? That's a phenomenal paragraph. And it's not just a phenomenal paragraph legally, Sarah, it's a phenomenal paragraph for our time. Because we live in a time where if you spend five seconds on

social media, people are acting like we've never encountered anything like what we're dealing with today. And then that then is the launching pad for legislation, whether it's from the left or from the right, that is obviously unconstitutional, justified by apparent unprecedented emergencies. And Judge Grant is saying no to that. No, this is not the first era. And then it goes on to say, not the first era and then it goes on to say this law as florida concedes draws its distinction based on viewpoint the most pernicious dividing lines under the first amendment but the state insists that ordinary first amendment review does not apply because the law restricts conduct not speech and the court as you said not og and i like this line either way the merits of these views will be decided in the clanging marketplace of ideas rather than a code book or a court that

was my favorite line the clanging marketplace big fan love it love it i i just was shocked that they went with that this is conduct. A training exercise is conduct as opposed to speech. But I guess you got to go with something, right, Sarah? You got to defend your law. That's your job as a lawyer for the state of any state, but in this case, the state of Florida. Yes, absolutely. But this was not surprising. Not at all. And we'll take a quick break to hear from our sponsor today, Aura.

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you feel like as a Tennessean about Texas, David, like the 11th Circuit will always be part of us. Interestingly, of course, the Ninth Circuit is a total disaster in terms of the sheer mass of land it covers or by population or by number of judges. And nobody can agree on how to split up the Ninth Circuit. It's kind of a mess. Anyway, over to the Fifth Circuit. David, you want to talk about porn? Want? Well, need to. We need to talk about it. Because we just had a really interesting decision, Sarah, and I'm not so sure how it's going to go. want to see happen. So Texas put in place an age verification law requiring adult sites to put in place a reasonable age verification regime and gave sort of a menu of options for how the sites could do it. This is something I've written in favor of on multiple occasions. This is something

we've talked about. This is something we've debated on the podcast. And gosh, we've had guests debate it with us. So we have talked about this. And by and large, my position has been, I understand that under existing precedent that these age restrictions are likely unconstitutional. However, existing precedent actually contains within it the reasoning that props up existing precedent is based on an outdated view of what's technically possible, and that precedent indicates if it is technically possible to effectively age-gate, then that could well be constitutional. So that's been my argument, is that the tech has caught up with the case law and we can actually do reasonable age verification when prior to we couldn't. That's not the approach that the court took here, Sarah. Essentially what the court did here is say, wait a minute, what you, you just applied the wrong

standard of review. Um, that the right standard of review is rational basis review. It is not strict scrutiny. And this easily passes rational basis review. the standard here that the Supreme Court will adopt. Because what the court said here was the regulation of the distribution to minors of speech obscene for minors is subject only to rational basis review. But that's not the real argument on the side of, you know, that's not the real argument against the age verification so much as age verification impacts distribution to adults of matter of material that is legal for adults to see. And so that's been the general argument. So I'm going to be very interested to see if the Supreme Court takes this. if the Supreme Court takes this? And what's the standard of review? Because the rational basis standard here, Sarah,

I'm not sure that's going to be the one, even though I applaud the outcome here. I don't think the reasoning is what gets you there. And so I would like to see the Supreme Court take this and update its precedent based on the current realities of the tech. So that's where I am on it. Can I give you my analysis of whether this will be taken up for certiorari? So on the one hand, they are going to have to take an age verification case

because we have so many applying to social media companies. And in that sense, I think this could be a better vehicle because it's not TikTok or some of the like really forward facing political culture worry sites. Yeah. So that helps. On the other hand, if, for instance, they were going to strike down age verification, they're not going to do it with the porn website. Right. Yeah, that's a good point.

Yeah. site. Right. Yeah. That's a good point. Yeah. So my prediction is if they take this, they're upholding age verification, though perhaps for different reasons. As you said, David, they'll be taking it sort of like the immunity case with Trump, right? They take the case, but to basically fix the reasoning of the lower court or to nuance the reasoning of the lower court or however you want to think about it. If they don't take the case, age restrictions, I will say, are probably in a little bit of trouble. But further off, and when I say a little bit of trouble,

a closer coin flip. So, we'll see. Yeah, it's going to be very interesting to see the age cases and then the access cases if the TikTok ban actually does go through., which you want to talk about a PR campaign that seems to have backfired about as spectacularly as a PR campaign can backfire. So there's a bill pending that would require ownership of TikTok to divest essentially before TikTok could stay legal. TikTok to divest essentially before TikTok could stay legal. So it doesn't, essentially the legislation would say no TikTok so long as TikTok is owned by these People's Republic of Chinese

entities, these PRC entities. And Rand Paul is going on talking about this is a First Amendment violation, First Amendment violation. I don't think so. i don't think so i don't think so because the it's not a ban on the form of expression it's a ban on a particular kind of foreign ownership which um not the same thing not the same thing but we're going to be getting a barrage of these cases on you know what does it mean what What, what are, what kind of rights do I have an access to something like a tech talk, um, at any age with the, with the federal legislation or at a younger age with some of these state cases or the state lawsuits. So, um, I'm going to be very interested to see how this turns out and i'm honestly don't quite know sarah

and tiktok welcome to the culture war if you thought you were in it before you were wrong because the culture war as i define it is part of a negative polarization culture war where one side champions you because they want to hurt the other side or in reaction to the other side. So this bill got universal support, not just bipartisan, complete, unanimous support coming out of committee. Then Donald Trump came out against the bill. Some have noted that he also recently got a large influx of donations from one of the investors in ByteDance, that parent company who would actually stand a lot to lose from an enterprise value of ByteDance lost TikTok, which is one of its major portfolio pieces. So Donald Trump is now like, why would we ban TikTok

when Facebook and Twitter are just as bad or whatever. I guess not Twitter. I think he now likes Twitter. Anyway, so this has caused a whole bunch of Republicans to now switch their positions on TikTok. And as one person said to me, what if this is, you know, some sort of like clever jujitsu by which TikTok now becomes more Trumpy and more Trump favorable? And so what a mess that that would be really in the long term,

especially I've said many, many times that I think the states should be going after TikTok for its addictive value to minors, the same way we look at other addictive things. You and I have disagreed on this and whether that would be sort of legally a winning argument. It's certainly more winning than I don't like TikTok. Yeah, well, of course. And you'd have to do it to minors, definitely. But this federal legislation on the national security issue is pretty legally bulletproof.

This is what Trump actually did when he was president. And it was enjoined at that point because it was executive action instead of congressional action so yes this bill was actually based on a trump executive order that now trump is against so welcome to 2024 politics well and i i said that the tiktok pr campaigns backfired spectacularly. I didn't say what it was. So I was just assuming what readers... The whole point is, does the Chinese government basically have an army of zombie tweens in the United States that they have so addicted to their product that they can turn on their zombie army like White Walkers or something? they can like turn on their zombie army like White Walkers or something.

And so when this bill came up for a vote, TikTok advertised basically to their users, call your member of Congress. And so all of these 10 to 12 year olds at school are leaving voice messages at their, you know, to their members. You know, one of my favorites was, bro, this violates the First Amendment or the Bill of Rights. I don't know. I just took a test on this. Another one threatened to kill himself if they weren't allowed to keep TikTok on their phone. So it basically proved that, in fact, yes, the Chinese government does run an army of addicted tweens that they can turn on with one advertisement on their platform to call members of Congress. So it backfired in the sense that they did exactly what they set out to do, but it proved the thing that they were trying to disprove. I mean, getting a pile of phone calls from angry, incoherent middle schoolers is not the way to influence Congress.

I mean, seriously, what an absurd idea. You're exactly right, Sarah. They just proved that they're capable of doing what we were concerned they were capable of doing. And to Rand Paul's point, or even Donald Trump's point, that for all the reasons we are concerned about TikTok, maybe we should be concerned about Facebook and other social media platforms. Don't worry, I am. And I think the addictive value of those platforms is less than TikTok. I've used all these platforms

and TikTok, I think, is just better at the addictive side than the other ones. But look, I think you could easily get studies showing that they're all addictive. We certainly have plenty on Instagram's effect on mental health, for instance. So in theory, I'm all for age restrictions on all of these. But that's actually not what we're talking about. We're talking about whether China should own one of these platforms. And that seems like a no-brainer. Even if you don't like Facebook and

what they're doing, again, at least they're not owned, not just by a foreign government, an adversarial foreign government that we know has been, you know, breaking the law in any number of ways, spying on Americans, stealing our IP, paying spies in the country, setting up police stations to, you know, harass dissidents of their country who are living in our country. So yeah, maybe we shouldn't do that. Maybe that's a bad idea. Just a thought. I mean, let's get as blind as we can get, Sarah. If you had to bet, which great power would the United States be in the shooting war with in the next 10 years, the smart money would be on China if it's going to happen at all. And I pray that it doesn't happen. But if it's going to happen at all, it's most likely to happen with China over Taiwan. And in that circumstance, can you imagine how idiotic people would feel if war breaks out and immediately there's a fire hose of anti-American propaganda, disinformation, There's a fire hose of anti-American propaganda, disinformation, etc. flowing into countless millions of American homes instantly in the palm of everyone's hand. People's Republic of China, hoover up so much personal information about Americans, including,

by the way, location data, for example, and then also to spit back at us whatever they want to see, they want us to see. I mean, this is, you know, I'm a Cold War kid, and the idea of putting equivalent kind of power in the hands of the Soviet Union and say, it just blows my mind. To be clear, this is exactly what I believe it was 12 GRU officers, that's the Russian military intelligence, were indicted for in 2018 by the Department of Justice for their role in interfering in the 2016 presidential election. They just weren't nearly as good at it. Basically, you know, one of the things that they did was, you know, buy a bunch of ads, use a bunch of bot farms to stoke racial tension and racial animosity on social media among voters. They did do it, to be clear, and it clearly was effective, you know, in terms of leaning into something that maybe was already happening culturally in the United States. That is nothing compared to the reach that China has with TikTok. You know, having a bot farm, but using a platform that already exists and that's, you know, highlighting or low lighting certain messages isn't going to be nearly as effective as when

you yourself control the platform. Whoa. Right. Yeah. Yep. Yep. If you're the Zuckerberg, you got a lot more ability to impact things than if you're just a user. You're just a user who's trying to abuse the platform as opposed to an owner who is warping the platform for his own intended purposes. All right, David, let's go to chats about the law. So let's start with a speech that Judge Kevin Newsom gave recently. It's on text history and tradition.

As he starts, flashback, if you will, to the spring of 2022. It's pre-Bruin, and I'm wrestling with how to decide a case that presented the question whether a federal statute that prohibits illegal aliens from possessing firearms violates the Second Amendment. Writing for the court, I explained that both the amendment's text and the English and colonial era history that led to its adoption confirmed that the pre-existing right to keep and bear arms that the Constitution codified belonged to what the Brits called subjects and what the new Americans call citizens, and thus certainly didn't belong to illegal aliens. Simple enough, really. I concurred separately in my own opinion. It's a nasty habit of mine to explain my own view of the appropriate

methodology for deciding Second Amendment questions. The two then existing contenders were what has become known as the text history tradition approach and two, a more amorphous two-step standard pursuant to what a reviewing court should first determine, whether the Second Amendment protects a restricted activity at all, and if so, then engage of some form of interest balancing to determine the restriction's constitutionality. Perhaps not surprisingly, I said that as between the two, I much preferred the former. That would be text, history, and tradition. And I urge the Supreme Court to tack in that direction. So David, you think he's going

on to say how great it is. The text history and tradition is now the end thing. It's so fetch. Exactly. But as I was reading him, I felt like he was in my shoes because although I wasn't obviously deciding any cases before Bruin, I was thinking through what should the standard be. And as I've said on this podcast, I was very text history and tradition curious. I was intrigued by that as a method of constitutional interpretation. And so, yeah, pre-Bruin, I'm very much where Judge Newsom was. But it gets interesting. It gets interesting after that setup where he's very text history and tradition curious. And Sarah, when he was on our podcast, he talks about what does tradition really mean? What is the word tradition

doing in that text history and tradition formulation? And I thought it was a fascinating argument that he unspools where essentially, if you're not really careful about tradition, then it can become a form of living constitutionalism in the sense that if you have a long enough record of a mistake, does that make the mistake law? Does that become tradition? He refers to Amy Coney Barrett, like what's the cutoff? What's the time cutoff for something to be illustrative as to the meaning of the text? How much does tradition impact the meaning of the text versus history? He raises a lot of the questions that we've raised, but the living constitutionalism aspect of it, I thought was the most interesting to me, Sarah.

Yes. And we will find a way to put this in the show notes that you can read it. It's not very long, 23 page speech. The New York Times wrote it up as well, if you just want to read a quick version of it. But yeah, and I think what's helpful about this analysis of text history and tradition is it's not perpendicular. It's not coming at it to say, absolutely not. I hate this because I am not a conservative or I'm not an originalist. I don't want to use text or history. It's more like, huh, I thought this way. Now we tried it. It's not really working the way I'd hoped it would. So what should we do? How do I think about this? And that's always makes for more thoughtful analysis when instead of, you know, sort of perpendicular lines, they're, you know, at a 30 degree angle.

Yeah. Well, and, you know, what was interesting about it is the speech really doubles down on text. That when he's talking about what does it mean to be originalist, he's really saying it means I'm very, very, very focused on text. And when I'm talking about history and interpreting text, the way he describes it is, what do the actual words mean? What did these words mean in that historical moment in time? So even that history element is referring back to the text. In other words, not so much a broad interpretation, much more sort of a narrower interpretation of what the literal words on the page mean.

And it really raises some of the, goes back to some of the difficulties we have as originalists when you're interpreting a provision of the Constitution that is very short and cryptic, like, you know, Congress shall make no law abridging the freedom of speech. What is the freedom of speech or, you know, the right to keep and bear arms? Okay, keep, the words keep and bear are pretty clear as to what they mean, but the word arms,

which arms? That is not as clear. And so you end up with a situation where with some of these broad constitutional provisions, then that text history and tradition test often ends up de-emphasizing text and really emphasizing history and tradition. And that's where I think it's more problematic compared to the strict scrutiny formulation, which, as I've argued before, really privileges text. David, this takes me to another thing that has been talked about. I mentioned it on the last podcast that Professor Amanda Tyler was going up to the Harvard Federalist Society National Student Symposium. And by the way, it was all live streamed. It was so interesting and well put together. Congrats to everyone involved and to the speakers for managing to talk about the separation of powers in a way that

wasn't the exact same thing I've heard for the last 40 years of Federalist Society panels. It was really fun. And for instance, the opening fireside chat was with Professor Cass Sunstein and Judge Keflige. And David, I got to tell you, I might have a new judicial crush. Oh, Judge Keflige? and David, I got to tell you, I might have a new judicial crush. Oh, Judge Catholic? Yeah, he was just terribly erudite and charmingly so. So, wow. We'll put in the show notes the link so you can go watch the panel if you want. And obviously, I had Professor Sunstein as a professor,

so I already knew that he was, I don't know. Sunstein as a professor, so I already knew that he was, I don't know. How do you describe a professor who, you know, talks about the American song as you're talking about law and the different types of lyrics and, like, can use one extended metaphor over, you know, a 90-minute chat? Delightful. It was delightful. However, when I mentioned what Professor Tyler was going to talk about, I said, you know, we have this whole Congress do your job thing and the court is really helping in this project through stuff like the major questions doctrine and saying like, nope, we're going to rebalance the executive and the legislature and the executive can't do it. And we're going to let the problems fester until the legislature figures out how to do their job.

And she pointed out that the one area that really undermines this whole thesis is standing doctrine. I've also mentioned in the past that I sometimes have trouble when I don't understand something deciding whether it's because I'm too dumb to understand it or whether the person explaining it is so wrong that they can't explain it in a clear manner. Because it can really be either. Like your confusion doesn't tell you which one it is so wrong that they can't explain it in a clear manner because it can really be either like your confusion doesn't tell you which one it is and i try very hard not to assume it's one or the other though i will say for most of my life i just assumed that i was um dumb so this takes us to

standing doctrine because what i've come to realize about the Supreme Court standing doctrine is that it is actually both. There are people who understand it. I'm not one of them. I'm not bright enough for that. But also, part of the reason I don't understand it is because it's so bad, it makes no sense. So, I finally came around to this conclusion i mean professor tyler almost had me there already but judge paul matey and i'm so sorry if it's maddie but i think it's matey well uh he's on the third circuit and he went off david and i really appreciate it because it's the exact same thing that we've seen in two of the recent Supreme Court decisions, Spokio and TransUnion. Those are the two that Professor Tyler was talking about, again, in the clip that we'll put online.

This one has very similar facts. It's the Fair Debt Collection Practices Act, in which the plaintiff has an injury, according to Congress, according to the Fair Debt Collection Practices Act, but the Supreme Court and the other judges on this panel concluded that such an injury, the one created by the Fair Debt Collection Practices Act and Congress, standing alone was insufficient because it didn't satisfy Article 3 standing. So you have a cause of action. You have standing created by Congress to bring that cause of action, but you don't have Article 3 standing, meaning sort of constitutional underlying standing. And the way the Supreme Court has roughly explained that is to say it has to be analogous to some common

law standing injury, which to me seems so weird. That's exactly what we have, Congress, is to take into account new injuries. Anyway, we're going to have to do a whole podcast on this. It's coming. But I really appreciated Judge Mady saying that the whole law of standing, quote, needs a rewrite. He's got this whole concurring in part dissenting in part opinion. And by the way, thank you so much to Jonathan Adler for flagging this for me. You can find a bunch of his stuff on the Vala conspiracy. He's great to follow for if you're in the circuit weeds. This is Judge Mady now. English and Roman history and the reported decisions of our federal courts throughout most of the 20th century. Ever-shifting, the judiciary created standard of modern standing confuses courts, commentators, and plaintiffs like Paulette Barclift, who's the plaintiff in this case, who are told their claim is insufficiently, quote, concrete to decide. Barcliffe says Keystone Credit Services

shared private information about her physical and financial health with an untold number of individuals at a mailing facility close to her home. Can she file a lawsuit for her alleged harms? Congress says yes, inserting a private right of action in the Fair Debt Collection Practices Act, and the Supreme Court has explained that the disclosure of private information has been traditionally recognized as providing a basis for lawsuits in American courts. I conclude that Barcliffe's intangible harms are sufficiently concrete for standing because they bear a close relationship to harms traditionally recognized as providing a basis for lawsuits in American courts. anyway, because the majority treats TransUnion, that Supreme Court case, footnote six, as talismanic, turning dictum into precedent, and along the way adopting the jot-for-jot reading of case law that the majority's opinion purports to reject. Respectfully, I cannot pour that much

meaning into a note, particularly where the result only adds the incoherence of modern standing. So I descend in part in the judgment, because while standing needs a rewrite, standing. So I descend in part and in the judgment because while standing needs a rewrite, as the requirement stands, Paulette Barclift is due her day in court. Yeah. So, and then he goes after TransUnion and Judge Mady, thank you for making me feel like this is one of those rare occasions where it really is both for me. I still don't really understand standing, but also I don't think they do either, finally. I still don't really understand standing, but also I don't think they do either, finally. Right.

You know, this is the source of both the valid critique that we've gotten and people have given me in particular, because I said during one podcast, I made the ill-advised statement that, well, Congress can add the cause of action. Well, as a number of people properly pointed out to me, that doesn't necessarily end the inquiry. Just Congress adding the cause of action doesn't end the inquiry. Congress can add a cause of action. The Supreme Court can still say, nod dog to that for the reasons we've articulated. So on the one hand, standing law, the way I've articulated standing law in the past has been, I've missed stuff. It's been wrong.

But at the same time, it is still also quite difficult to make sense of it. And so I just made sense of it. And I made sense of the difficult to make sense of doctrine in the wrong way, which is the source of some angst and consternation amongst learned commenters. So we're still on this journey, Sarah. We're on a journey to fully understand. At some point, maybe 10 years into advisory opinions, we'll fully master standing doctrine. I don't know.

I tried. I tried many times in law school. Because I get either, it always comes back to one thing. Either I don't understand cause of action, I don't understand injury in fact, or I don't understand standing. But maybe I don't understand all three. I don't know. And it will no doubt be the most listened to podcast in advisory opinions history is if we get we finally do get a true standing expert on the podcast. And I mean, usually, I mean, that's probably the number one thing I'm asked when people encounter me just in public is when are you going to get that standing expert on advisory opinions? Yeah, totally fair. All right, David. So let's talk a little bit about the Oscars.

Which movies did you actually watch of the Best Picture list? A whopping two. Yeah? What are they? Barbenheimer. You watched Barbenheimer. Yeah, so I watched Barbenheimer. I've seen Barbie once, and I've seen Oppenheimer twice,

both times in IMAX. Which, by the way, the idea that Nolan said, you know, I'm going to make a talk movie, like a talk-dominated movie about the making of the atom bomb that has exactly one scene that you might call an action scene of any kind and i'm gonna do it on freaking imax with a thundering score and and it worked i mean it worked obviously so i'm not the oscar expert there's parts of it that i really of the broadcast itself that i thought were really fun. The John Cena costume design stunt where he comes out basically nude. And- If anyone can pull it off. Shimmy's across the stage and the dude is pretty cut.

Yeah, as I said. And then when he stands in front and you don't know exactly what he's doing and he says in this kind of uh shy way costume was just so well done that was so well done so i saw all but one of the best picture nominees okay the holdovers american fiction Barbie, Oppenheimer, Poor Things, Past Lives, Anatomy of a Fall, Maestro, and Killers of the Flower Moon. Because I've been on planes a lot in the last two months, and they were all available on streaming. Yes. And downloadable.

So, I will say, for the purpose of this podcast, Anatomy of a Fall was great legal movie. And it involves the Canadian criminal justice system, not ours. And I was fascinated. And I know we have Canadians listening to this podcast, and I have no idea whether to think that it was really, really accurate or maybe not, but it felt like they were trying to make it pretty accurate. It sort of seemed like part of the purpose of the movie was to leave you with the tension of, did she do it or did she not? And yeah, it was like the best Law & Order episode, but set in Canada. Highly recommend. And for not the purposes of a legal podcast, American Fiction was the best movie of the year.

Okay. It was really well done. American Fiction was the best movie of the year. Okay. It was really well done. And to your point that you started at the beginning of this podcast, David, that our current culture keeps telling us that this moment is so fraught because nothing like this has ever happened in the history of ever. American Fiction is about basically wokeness gone amok.

The idea that this Black author can't actually publish a great work of fiction unless it's a black work of fiction and being a black author doesn't make it a black work of fiction it has to be you know hood rat stuff black fiction and so to like prove a point he writes this parody work of real ghetto fiction and it becomes this you know universal bestseller and it's getting turned into a movie and he's like but it's not real and so yeah it's perfect for our current moment except it's based on a book david and do you know when that book was written when was that book written the early 90s i was gonna say the early 90s i should have said the early 90s because guess what the early 90s are this moment like this is something that people just i wish more people would absorb late 80s early 90s that's this moment slight correction it's based

on the novel erasure that came out in 2001 but is written about like the time period obviously the 90s if it came out in 2001 it was written way before that of course um of course you know set in that 90s framework anyway fantastic movie and not i was worried going into it um that it was going to be sort of a caricature of that plot and it actually wasn't at all and the lead in it jeffrey wright who you might know from um what was that hbo thing about west world west world jeffrey wright and is and bd from hunger games oh yeah yeah um he's so so good in it and again not a caricature it's actually just a great movie so that's those are my two recommendations of movies this year. I'm really into classical music. I played viola for a long time. Maestro didn't do

it for me. They missed what I thought the plot should have been. I'm not that interested in everyone's relationship with their wife. It was my problem with Napoleon too. I get it that, you know, using this core relationship to tell a narrative can work, except if you're Napoleon or, uh, Leonard Bernstein, like there needed to be more music in it. So Maestro was a bit disappointing. Killers of the Flower Moon have already done a whole rant on the book's incredible and it's a thriller and it really centers uh the native american women in the story and so what did they do they changed all of that you know who the bad guy is from the first second and somehow they patted themselves on the back for casting a native american woman in the lead role but then made it not as much the lead role as it was in the book and instead made the two white guys far more lead characters than in

the book you shouldn't get credit for that even under your own rubric that's ridiculous poor things was a weird movie but emma stone is delightful and everything so who can help it past lives i don't know i do sort of have a soft spot in my place for past lives it's you know she sees her not ex-boyfriend even ex like junior high crush right and what that you know sort of can mean in your current moment of just being a parent and married and work and all that stuff um and then the holdovers people were really into the holdovers david and maybe because I didn't go to a East Coast boarding school or something. I didn't feel it on The Holdovers.

It is a good movie. Clearly. It struck me, the plot struck me more like Saturday afternoon ABC special. Like life affirming, you know, chosen family kind of story. Which I'm all,, I have no objection. Like we need more life affirming stuff and chosen family, good chosen family stories can be really, really good and moving. Um, but I was actually kind of surprised when I saw the synopsis, but haven't seen it, Sarah. So cannot judge. It would be on my list. Just not that high on it. I mean,

cannot judge it would be on my list just not that high on it i mean divine joy and randolph who won the oscar um for best supporting actress like was great and paul giamatti was great in fact all of the actors in it are great but it's really cold it's i mean i don't know it's cold it just looked really cold throughout the movie. That is the funniest critique I've had. Dune Part 2. I mean, the story was incredible. Timothee Chalamet, Zendaya, they were incredible. I mean, Javier Bardem made the movie.

The practical effects were sensational. But it was hot, Sarah. It was hot. The desert is really hot. No, I do think there's something about like catcher in the rye either you watched it the right or sorry read catcher in the rye at the right moment in your life when you are a 15 year old boy i read catcher in the rye i think when i was 25 and i was like oh my god like sort of eye roll at all the teen angst i felt a a little that way with Holdovers. I mean, it's actually very Catcher in the Rye-ish in the sense that it's this, you know, 15-year-old boy.

I haven't been a 15-year-old boy, and I'm past the time of sort of really feeling the empathy for 15-year-old boys. Right, right. Maybe I should. I was glad Oppenheimer won. American fiction wasn't going to win. I know that. But still. Yeah, I was surprised at how much poor things won. Because the whole premise of the movie is just kind of creepy and weird. And, you know, I'm Emma Stone's phenomenal actress.

So she can make creepy and weird compelling. But what a strange premise but good broadcast i i like the oscar broadcast all right david a bit of a slow legal start to the week but we're waiting for lots of things we're still waiting on the ruling on the motion down in georgia on whether fannie willis will be removed. Donald Trump's criminal trial in New York will start here in just two weeks. Two weeks. You never know what else is going to come out. Pretty soon here, we're going to start getting Supreme Court decisions. Yeah.

We have one more oral argument sitting. And of course, that will have the Trump immunity oral argument built into it as well as sort of a bonus argument for that sitting. But nevertheless, March is when you'll start to get some trickles from those cases that were heard back in October and potentially November. So I expect things to pick up. Yes, absolutely. Things will pick up. And also, I just received a legal complaint against MIT that regarding anti-Semitic activities at MIT. And I'm going through that complaint and it raises some really interesting issues, Sarah, that I think would be useful to discuss, such as when can selective protection of free speech rights constitute an act of discrimination so i read that complaint

was too enraged to talk about it on this podcast yeah i know i'll try to calm down before the next one yeah we you need to calm down before i read i calm down yeah for for the true ao style discussion we need we need to take another beat before we can. Yeah. I'll try. Yeah. It's terrible. Because while I wasn't an angsty 15-year-old boy, I was a college student on a very liberal campus where there was one sort of accepted thought culture. Yeah.

Yeah. Well, one thing that we'll get into is how much of a monoculture do you have to create before you're going to look at the various facts we'll talk about in the case and say, yeah, this, this seems good. That's an institution that is profoundly and deeply troubled at its core. If it's going to preside over this kind of environment on campus. And so this, uh, speaking of Cass Sunstein, Sarah, uh, Cass Sunstein did the paper 1999 paper law of group polarization,

that when people of like mind gather they become more extreme exhibit a of that is what we have seen erupting on college campuses these monocultures create radicalism and radicals can't understand how extreme they actually are and it feeds into all of it it's the bias response teams are part of. Yep. Yeah. It's all one big mess. All right. Well, next time on Advisory Opinions.