Advisory Opinions - Students Call for Genocide, Presidents Smirk

Episode Date: December 7, 2023

The university presidents of Harvard, MIT, and Penn testified before Congress on antisemitism in their schools. It didn’t go well. Sarah and David talk Title VI implications, and: -David feels gaslit -The parents of a young Kansas City Chiefs fan threaten to sue Deadspin for libel -Acheson and why mootness is easy and standing is hard -Happy holiday housekeeping Show Notes -Harvard ranked last in free speech  -U.S. Department of Education Reminds Schools of Their Legal Obligation to Address Discrimination, Including Harassment -Department of Education’s newest ‘Dear Colleague’ letter relies on unconstitutional standards, but offers some promise Learn more about your ad choices. Visit megaphone.fm/adchoices

This ad for Fizz is only 25 seconds long, but we had to pay for 30. Those leftover 5 seconds shouldn't just disappear, right? It's kind of like what happens to your unused mobile data at the end of each month. Except at Fizz, your unused data from the end of the month rolls over, so you can use it the next month. Hey, you paid for it, so keep it. Try the other side. Get started at fizz.ca. If you need some time to think it over, here's 5 seconds.

Certain conditions apply. Details at phys.ca. You ready? I was born ready. Welcome to Advisory Opinions. I'm Sarah Isger, and that's David French. And if you're a member of The Dispatch and listen to our little, like, separate recordings called The Skiff,

you'll know that Jonah made fun of me for saying, that's David French, because you can't see him, and you haven't heard from him yet and he thinks I should come up with something else. But you know what? No, Jonah, never. I like it. I like it.

We've got a fun if ranty podcast today. We'll talk about the congressional hearing with the three university presidents on anti-Semitism and, um, they didn't go well? So we're going to talk about Title VI and the legal implications and also just, you know, when giving congressional testimony,

should you or should you not smirk about genocide? I don't know. We'll figure it out. I'm going to say not. I'm going to cut to the chase and say should not. I don't know. We're going to debate it, David. Okay, we'll have that out.

Look, we'll also talk Supreme Court. There was an opinion reached in the Lawford case. That's that Americans with Disability Act case about standing, which is so great, the timing, because we just had a conversation about standing with Judge Newsom at the last episode. We also had a defamation case coming out of Kansas City Chiefs fan and some housekeeping, and it's fun housekeeping.

So stay tuned for the end of that. So, David. Yes. The presidents of MIT, Harvard, and Penn came to Congress. Yes. And they were prepared. There was a phalanx of attorneys behind them. It did not go well for them. And let's just do that big picture because I know it didn't go well for them because Harvard has already put out a statement backtracking from their testimony. The White House put out a statement like, you know, you didn't do well when the White House that is, you know, on your side in terms of liberals put

out a statement that said, it's unbelievable that this needs to be said, colon, calls for genocide are monstrous and antithetical to everything we represent as a country. Something that these university presidents weren't really able to say, at least in the context of the question they were being asked. But David, I want you to set the stage for us about this, about Title VI, about why they were giving the evasive answers they were, because as many have pointed out, their answers weren't wrong as far as the First Amendment. They might have been wrong on consistency. And so let's talk about all of it. What should the policies be? What are the policies? What abilities does one have to actually take action? All of that. Go. We have, okay, so I'm

going to put this in buckets, Sarah. These will be. These are David's buckets, not Sarah's buckets. But so I'm going to have two David's buckets. There's a hypocrisy bucket and an accuracy bucket. And let's start with the accuracy bucket before we move to the hypocrisy. All right, so if you followed any of the questioning, Elise Stefanik was sort of the lead Republican questioner. And what she did was something that was very interesting any of the questioning. Elise Stefanik was sort of the lead Republican questioner.

And what she did was something that was very interesting and a little deceptive. Okay. So essentially what she was asking and going after these college presidents about was, there was an enormous amount of, I mean, let's just flat out anti-Semitic activity on these campuses since October 7th. Just flat out anti-Semitic. Anti-Semitic speech, and we'll get into this, I think, anti-Semitic harassment as well as anti-Semitic speech. And so at least one student who spoke on the Hill yesterday said she had been assaulted in the library. Yes. Yes, exactly. And she was not the only student to describe activity that I would consider to be harassment, but we'll get to that. But here's what Stefanik basically did is was said to these presidents, okay, there are people on your campuses who are

calling for intifada, who are calling for genocide of the Jews, who are doing all kinds of anti-Semitic things. And basically what she wanted them to say was that is completely unacceptable. It violates our policies and we're gonna vigorously investigate and punish them. That is the answer that she won. That is not the answer that she got. Okay, so the answer that she got

was highly technically, was a very technical legal response. And the technical legal response went along to just sort of summarize the consistent theme was this speech, even speech calling for genocide might be protected speech. might be protected speech. Harassment is something else entirely. We protect speech. We punish harassment. Okay, so that's sort of the way, they said it in a way that was not particularly artful, Sarah.

I was going to say, even that was actually a better answer than what I heard at the hearing. So the question was, does calling for the genocide of Jews violates Harvard's policy or Penn or MIT? And the answer that each one started with never, it just was, it depends on the context. That was the answer. That's a weird answer to give, given the answer that you just gave, David, which also would have been a good lawyerly answer. It would have been a lawyerly,

it would have been not satisfactory to a lot of people. They would have been angry. Correct. It still isn't even the best answer that I think you could still give accurately. But at least that was a better answer than what they gave. It depends on the context is a really bad answer when the question had the word genocide in it.

Yes. So the answer that I gave to you was the answer that I felt like they were attempting to give, not well. Okay, that's how I interpreted their responses, which depends on the context, is a very unhelpful answer. A helpful answer is, Representative Stefanik, as you may know, the Constitution protects the right of individuals to engage in abhorrent speech, including speech that calls for violence, unless it's inciting violence. And as abhorrent as that is, as horrible as that is, if we as a higher institution of higher education maintain standards that are comparable to the First Amendment, we're going to follow that those general guidelines. However, however,

we are absolutely obligated both morally and legally to protect our students from harassment. And here's what we're going here's what we're doing to protect them from harassment. And that would have been a much better answer. It wouldn't have satisfied people, but it would have been, it would have had the benefit of being both legally accurate and more politically palatable than, than it depends on the context, smirk, smile smirk, which is what we saw yesterday. smirking was weird the smirking was weird it was this sort of condescending academic smirk that i have seen many times in my life like they thought they were winning that exchange with stefanik they did they did they thought stefanik was beclowning herself when they, with their condescension and arrogance,

were coming across horribly, horribly. I mean, again, you have these Jewish students on these campuses also giving their experience and statements, you know, nearby in a press conference. And like, it was enraging to hear what their experience has been like for the past month on these campuses. Yes. And then these university presidents giving this highly sanitized version

of the technicalities of First Amendment law instead of saying, our students are in pain. Yeah. So in the accuracy bucket, I give them a C plus. And I give them a C plus because, yes, in a true legal sense, context does matter. Context does matter. And this is a point that we have made many times in talking about the difference between free speech and harassment. So, for example, you can have a megaphone in the quad

and you can say, because you're protesting a war, no blood for oil, or you can say Palestine shall be free from river to the sea. Walking into someone's dorm room with the same bullhorn, with the same message, that's harassment. I do want to make one asterisk on that, though, because under the First Amendment, there are certain things that would be protected if you're on a public sidewalk.

Right. But on these private universities, of course, they do not have to comply with the First Amendment. They're saying that they are going to have First Amendment-like policies, which is fine. So we will treat them as if they are following the First Amendment. But they also have policies similar to time, place, and manner restrictions. So for instance, you can't use a bullhorn at 2 a.m. outside someone's home. That's not protected by the First Amendment. So part of what you just described is you're not allowed to use a bullhorn in the quad if you're saying lynch Black people, because that violates university policy to use a bullhorn. So they'll come and tell you, you have to stop. But if you're using the bullhorn to say intifada, globalize the intifada,

that still violates university policy, but nothing happens to you. But they don't tell them to stop. So there's, my point is there's a, there's a speech issue, but there's also a university policy issue, which is different. So that's why they, maybe I'm going to downgrade C- on accuracy, because yes, it is, they are correct that free speech principles do allow you to say a lot of really offensive things, as we have articulated 50 million times on this podcast. However, however, that is actually not the complaint that is directed at a lot of these campuses.

The complaint that is directed at a lot of these campuses is that you have not enforced valid policies that you would enforce against other people saying other things to what looks like gives special benefit to those who are chanting murderous slogans about Jews in Israel or elsewhere. And so that's the real issue. They weren't brought in for an academic discussion of the First Amendment. They were brought in to talk about this crisis occurring on their campus. And why is it, now this gets to the hypocrisy bucket, why is it that you guys are absolutely so aggressive against speech that is offensive

to certain values? That Harvard, for example, is FIRE's last ranked school on free speech in America, okay? You're the last ranked school on free speech in America. So don't come in here to the committee acting like you're some champion of free speech. Just don't insult us like that. Don't insult our intelligence. We know full well that if you took the exact same facts and it was aimed at LGBT students or students or Black students or Latino students or you name it, women students, if you took the exact set of facts, the campus leadership would be setting its hair on fire to deal with this, to put out statements, to react aggressively, to punish people.

Why is it that all of a sudden, these same institutions that many of them have some of the worst free speech records around have suddenly rediscovered their free speech values when it comes to this speech? And okay, fine, I'm not asking for you and I have written against taking action against people on the basis of their protected opinions. Don't do that.

Don't do that. But at the same time, yes, enforce valid anti-harassment standards and enforce valid time, place, and manner restrictions, for example, that you enforce on anybody else. Don't give an extra special pass to anti-Semites, which is what has been occurring on campus. And Sarah, the feds are taking notice of this. The feds are taking note. There are already multiple Title VI investigations

opened at major American campuses since October 7th. And I would guarantee you there will be more. So another thing that was brought up in the hearing, because it's not just that there's special protection for the anti-Semitic students, there also seems to be special unprotection for the Jewish students. So for instance, one of the things that Elise Stefanik asked was, you know, do you have a policy about flying the flag, flying flags at Harvard? And the Harvard president said, yes, we only fly the American flag. And she's like, did you fly the Ukrainian flag last year? And she basically said like, well, I just became president, you know, now. Okay. Did you fly the Ukrainian flag last year? Did your institution? Well, that was under someone else. So you did fly the Ukrainian flag last year. I mean, she really had to pull it out of her. And so finally, she'd still never

answered the question. But finally, at least Stefanik's like, yes, you flew the Ukrainian flag over Harvard's campus last year as an exception to your flying the American flag policy. Did students ask to fly the Israeli flag this year? And she says, yes, that would be a violation of our policy. And it was denied. So again, I mean, I mean, is that not the shirt left case? Basically this Boston city case. And again, Boston, of course, is a government state actor, the city of Boston. This is not, but the same things are going to apply writ large when we get to this Title VI conversation in a little bit, which is if you've got a policy,

but you make exceptions for some people, you can't do it based on viewpoint. And by the way, it will not make one bit of legal difference that you weren't the president then. The institution doesn't get to switch presidents and be like, see? The new policy, who dis?

Yeah. Yeah. I mean, liability does not be like, see? Right. New policy, who dis? Yeah. Yeah. I mean, liability does not work like that. Imagine a company that has dumped toxic waste into a river and somebody says, hey, did you dump toxic waste? Previous CEO. Who dis?

You know? No, that's not the way it works. Harvard is a perpetually existing corporate entity that is responsible for its policies across presidential administrations. Okay. So before we get to Title VI, I want to do a little bit of congressional testimony, because lawyers are what prepare you for giving testimony to Congress. And often members of Congress are lawyers who do the, you know, ask the question. So I want to just talk a little bit about that, which is the reason that congressional hearings don't work particularly well, in my view, is because members are limited to five minutes. Now, there's lots of rounds, but you sort of lose the momentum when Elise Stefanik, who was sort of the one prosecuting the case here, had to stop at the five-minute mark each time.

And so when you're a lawyer preparing a witness, you tell them, run out the clock. Yeah. And so, for instance, when she kept not answering, did Harvard allow the Ukrainian flag to fly over the campus last year? It was in her interest to not answer that question and make Elise Stefanik keep asking it. Because she's only got five minutes. And as long as you're running time on the clock, you don't get time back

because the witness is just being a jerk or not answering the question. And so, A, that's one thing that all lawyers are going to tell you at these congressional hearings. Time is on your side. But then there were some other things that there's just no way their lawyers told them to do. The smirking is a really good example.

You know, under no circumstances, big hearing, small hearing, friendly hearing, not friendly hearing, should you ever have the appearance of wanting to look condescending? And all three of them did it, which is also strange. But then, David, here's the congressional testimony legal advice question that I think is interesting, which is lawyers are trying to prevent you from getting into this Title VI litigation or giving away the house in the Title VI litigation that's coming because litigation is coming.

Oh, it's coming. Yeah. So that's what the lawyers are there to do. They are, though, not really there to help you politically, if that makes sense. though not really there to help you politically, if that makes sense. These lawyers don't, they have experience with congressional testimony, congressional investigations, but they don't necessarily, you know, have campaign experience or themselves have worked on the Hill. Many have, not all. So there are times when you're just going to tell your client, look, you're going to have to just give the technically legal answer that we'd given a deposition, even if that

looks crappy on C-SPAN. The problem is with a hearing like this, the viral moment can be so catastrophic as to undermine your legal case, even when you're giving the deposition answer. The same thing can happen in depositions as well. You know, you tell your client, just keep repeating the same technical answer that I've given you, no matter what, no matter what they ask. Most of the time, that's the right advice for a deposition. But sometimes when they play the video for the jury, you can look so obstructionist and the smirking and your body language and everything else that it can undermine your case, even when your words aren't conceding anything. So I'm curious about what you thought of the legal advice that the president's got. Yeah, bad. So lawyers, we look at things through the lens of liability. That's our job, right? That's our job. We look at things through the lens of liability and we think, what will

minimize liability for the institution that I have a fiduciary responsibility towards while I'm representing them? And so they look at it through this liability lens and often fail to look at it from a more holistic institutional lens. And this is something that I've seen happen in church institutions. The instant lawyers get involved, for example, in sex abuse investigations and things like that,

they immediately lock into minimal liability mode. Well, but the church or the church institution has a higher call on its purpose than merely minimizing legal exposure. But leaders of the institutions, often in a panic because they're under fire

or they might be facing big legal judgments, et cetera, or they feel like the institution's in trouble, will lean on the lawyers to such an extent that the lawyers essentially start just running the whole thing. And that is so very often a major mistake. Because the idea, let's suppose that instead of coming and smirking, condescending, et cetera, that they walked in and they said, there are a number of students on our campuses who have suffered unacceptable levels of bigotry and faced unacceptable levels

of bigotry. It is, we are investigating, we will be vigorous in punishing any violations of our policies. We're going to vigorously comply. We're going to vigorously enforce our policies without regard to viewpoint. And they walk in and they acknowledge the hurt and the pain that has happened. And I guarantee, you know, I'm not going to guarantee you, but I could imagine easily a lawyer saying, you need to be careful about that because in a deposition in a Title VI case, this might be read back to you as sort of a confession. A confession that students endured harassment. If you're going to dive in empathetically,

you're gonna, it'll almost read like a confession. But what we're talking about here, look, Harvard has money coming out its ears. There's no way these Title VI lawsuits could deal a serious financial blow to the institution. But it could deal, you could face literally years, years of rightfully diminished reputation, rightfully diminished, honestly, quite honestly, Sarah, like rightfully diminished value of the degree itself. A lot of people are looking at degrees from some of these schools, again, rightfully in a different way because what these schools are and have become. And so this idea that liability minimization is in the best interest of the organization, I dispute that. There are a lot

of institutions for which liability minimization is actually a quite destructive strategy. And it tends to be those institutions that have a higher call on their existence than just simply making money. Here's the problem. What I think they should have come in and said is we were caught flat-footed after October 7th. We did not realize the scale and scope of anti-Semitism that we'd be facing on our campus. And while obviously we adhere to First Amendment principles, even though we are a private university, much of what we have seen on our campus in the last few weeks has crossed that line. It's violated university policies. We think it's probably violated Title VI when it comes to some of our Jewish students who you've heard from and their anguishing stories. Unfortunately, we have literally lacked the

personnel to enforce some of our policies in real time. We are now going to investigate those and beef up our ability to enforce policies in real time as well when we know that these things are going on? Here's the problem with that answer. It's not true. They were able to enforce university policies. They have a fact problem, right? It's not just a messaging problem. They have a hypocrisy problem. They have a huge fact problem. They have a fact problem. They're not actually coming down on any of these students. You know, one website put up the 10 times that Harvard has rescinded offers from admitted students because they were found to have memed or texted friends when they were under the age of 16, I believe, things that

Harvard then found offensive. They are not doing that for students who are memeing or tweeting out things that are potentially anti-Semitic, using the words intifada, what, you know, make river to the sea, like use your, pick your term and say, we are rescinding acceptances from students who have publicly said that, or when it's come to our attention that they've privately said it to their friends, as they did with one student who had privately texted a friend in eighth grade, I think. So this gets to your bucket too, right, David? Like part of the reason they can't give the good answer is because they don't mean the good answer. There's a hypocrisy problem here. No, no, because there's, there's so freaking much

water under the bridge of these guys reacting extremely vigorously, often extremely punitively, vigorously, often extremely punitively, many times extremely unfairly, when somebody says something that is against counter to the consensus campus morality. And the problem is, this isn't counter campus consensus. This is the campus consensus among the faculty, among the majority of the students. Now, I don't mean 80%. I would say, I don't know if it's the majority of the students, Now, I don't mean 80%. I would say, I don't know if it's the majority of the students, but I would say it's the majority

of the politically active students. I'm basing that on polling of people of this age cohort. And again, I don't mean the majority of the students are for Jewish genocide, to be clear, but in terms of where sympathies are. So this gets to then the stick, if you will. If the carrot doesn't work, if we can't publicly embarrass you into saying you're against calls for genocide, it depends on the context. What

about Title VI? It requires a severe and pervasive level of harassment such that it undermines the learning experience for a student or group of students based on their real or perceived religion. In this case, religion is what matters. I just don't even think it's close at this point in terms of what these students have been describing. You know, we talked about this in the immediate aftermath of October 7th, and I said that, you know, the school that had had the students, locked the students in their own library for their protection while other students were trying to beat down the door, that that might, even in a single incident, raise to Title VI. But it doesn't even matter at this

point because we've now had two months of this. The word pervasive has no meaning if it doesn't include most of the semester at this point. But there's an enforcement issue here. There's a what's the remedy problem here? All sorts of things, David, when it comes to Title VI and how often it's actually enforced successfully. Yeah. So there's a little bit of dispute because the, it's funny, the U.S. Department of Education had a little bit more decisiveness and alacrity than Harvard, MIT, and Penn, because they, on November 7th, they put out a Dear Colleague letter warning people about Title VI liability and Title VI problems. And what's interesting, that letter, so we can put the letter and the response from FIRE in the show notes. But there's an interesting question.

So in the letter that the DOE sent, it described the standard as severe or pervasive, whereas the Title IX standard is severe and pervasive. So it's not or, it's and. But I'm with you, Sarah. If you look at just, for example, if severe or pervasive is the standard, then even that one incident at the Cooper Union, for example, meets the harassment definition. If it's severe and pervasive, you know, it's an interesting question. Is there such a thing of one incident? What role does one incident play in the pervasiveness argument? But the bottom line is, Sarah, if you had a group of, again, let's just go other protected

categories. If you had a group of black students and it was neo-Nazis out there, like Nick Fuentes' Groypers, banging on the door to get at black students, or if you had some sort of radical, fundamentalist Christian group banging down the door trying to get at LGBT students, and the same kind of action or lack of action existed, the question wouldn't be, would they be held liable?

The question would be, how many zeros are on the check? Okay, let's just be blunt about this. And the thing that is, you know, we overuse the term gaslighting because it became so prevalent during the Trump years, but I felt gaslighted. I felt gaslit. Is that the proper past tense? I felt gaslit. Because here we have misconduct severe enough that the video evidence is everywhere. The testimony is everywhere. We have a DOE dear colleague letter. We have DOE

investigations going on. And we're so far past the idea that these institutions are guardians of free speech. And here they're explaining how they had to try to make the difficult call of respecting free speech while protecting people from harassment when they've never really tried to harmonize that before. It's frankly infuriating. I mean, these are the schools with speech codes. Remember that said any speech that someone else could find offensive? It's unreal. It's unreal. And now they're hiding behind the very fact that their speech codes were unlawful. Yeah, and I get, I get the idea of lawyerly answers. I think it's unwise in this context. Lawyerly answers are unwise.

I think lawyerly answers are unwise in a lot of contexts in which they're used. I get it, I understand it. I do not get or understand the smirking. Look, I do understand that a lot of the House GOP is a clown show, but that wasn't, but that wasn't. They don't think they have a problem on their campuses, David. That's what the smirking was about.

A lot of these folks think they figured out the Middle East and it's all Israel's fault. Yeah, no, I mean, it's the settler colonialism nonsense. It's all of this. And look, it's not new. This is not new, but it's just in such dramatic relief because of the extremism of the Hamas atrocities and the strength of the Israeli response. But my gosh, Sarah, you know, and we haven't even talked about the sexual violence aspect of this. I haven't even gotten to that, which is, you know, and we haven't even talked about the sexual violence aspect of this.

I haven't even gotten to that, which is, you know, once again, just an utter nightmare of hypocrisy. But yeah, I look forward. There are times, Sarah, when I really do look forward to the legal consequences. And I will say I look forward to the legal consequences here. consequences. And I will say I look forward to the legal consequences here. 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.

Use code ADVISORY at checkout to save. Terms and conditions apply. Speaking of legal consequences, there was a nine-year-old Kansas City Chiefs fan who went to a game wearing a Native American headdress regalia. Half of his face painted red, half painted black, as those are the Kansas City Chiefs colors. And he was put on, you know, the cam. Not the jumbotron at the stadium.

He might've been put on that too, but like the cam that showed the game. I don't know which network was showing the game at the time. Deadspin wrote an article titled, the NFL needs to speak out against the Kansas City Chiefs fan in blackface native headdress.

It included lines like, it takes a lot to disrespect two groups of people at once, but on Sunday afternoon in Las Vegas, a Kansas City Chiefs fan found a way to hate Black people and the Native Americans at the same time. Oh, man. The image of a Chiefs fan in blackface

wearing a Native headdress during a road game leads to so many unanswered questions. This is so bad. I just want to be clear, this kid was nine, and they asked whether he was an adult in one of their just asking questions section. This person clearly doesn't have children. I can't tell you how much this kid looks nine years old. He's not an old looking nine. He's a nine looking nine. Oh, totally. Maybe you could confuse him for 10,

but I don't think you could confuse him for 12. Sorry, kiddo, with whatever 12-year-old rights have. Okay. So word has it on the street that his family has hired Clare Locke, the law firm that represented Dominion in their defamation suit against Fox News for defamation. And I'm just curious, David, we haven't read the lawsuit. What do you think? Chances of success. Is that defamatory, the two lines that I just read you? Oh, gosh. So, yes. So here you have a person who is not in blackface because if you moved from the camera

to a different angle, you would see his face was colored half red, half black. Oh, no, the camera had that angle. In fact, they put up the picture of that angle. Oh, the Deadspin story I saw only showed, the thing I saw only showed. Oh, they must have updated it.

Oh, they've changed the photo. How funny. The original photo I saw was only from the side. Just had the half. Had the half, okay. So it wasn't blackface. It was half black, half red. Chief's colors, by the way.

And then he had a Native American headdress. But guess what? His grandfather wasn't just Native American, but like a tribal official. There was no cosplay here at all. No, there wasn't Native American cosplay. There wasn't blackface. I mean, of course, he's dressing,

he's cosplaying in the sense that he's dressing in the team colors and in the team regalia. But it just so happens that of the team regalia, turns out that this is the Kansas City Chiefs, turns out that his grandfather was kind of sort of a chief. So he's a descendant of, you know, a high, an official, an official. Okay, so the standard is it has to be false and misleading.

False or misleading, sorry. Yeah. I think both of these are met here. Yeah. He's not a public official. Nope. Or public personality in any way. And it doesn't matter, by the way,

that now he's become more famous because they did this to him. It has to be that you basically opened yourself up to at the time. So like, no, standing at the game does not do that. So they don't have to prove maliciousness. They have to prove reputational harm, which might be a little hard,

but I don't think it's going to be very hard for a jury to find that there was reputational harm. Right. To me, the question is more damages than liability. Correct. So then, you know, does this bankrupt deadspin, I think, is really the only question. How many zeros? Yeah. We'll see. Yeah, that is my, that's my question as well. How many zeros? You take a nine-year-old kid,

lie about them being in blackface, and put them in a national publication? Oh, man. being in blackface and put them in a national publication. Oh, man. And put up a picture that only shows the half that's misleading, even though the picture that I'm looking at right now shows the full face, which would have made it much more clear. Yeah, I'm telling you, Sarah, this is another one. It says that he hates black people. State's out of fact, right? A Kansas City Chiefs fan found a way to hate black people and the Native Americans at the same time. Ooh, poor wording there. Very, very poor wording. This is a nine-year-old.

Okay, I just... Okay, anyway, we'll come back to that lawsuit as it moves forward. Yeah, we'll come back to that. It'll be interesting to see whether they settle because this is the problem for the family, right? They can get a lot of money by settling this and just having it go away,

or they can get a lot more money if they're willing to go to a jury. Yeah. I think that would be a tough call for me as a parent. Yeah. But yeah, Sarah, this already feels like the rantiest AO in a while. It is.

Yeah. Yeah. So if you don't like rants, maybe just- But the reason we don't rant so much is so that when we do, people know that it's serious. All right, we're moving to the Supreme Court. We're moving out of rant territory,

although there were some rants at the Supreme Court in the last couple of weeks. So there's three oral arguments we're gonna talk about. We're not gonna talk about them all this episode. SEC v. Jerkacy, that's the Seventh Amendment right to a jury trial in civil lawsuits. And does the SEC's administrative court system and administrative judges violate the Seventh Amendment? There's that oral argument. There's

the Purdue bankruptcy oral argument. Should the Sacklers, can a bankruptcy judge give the Sacklers basically carte blanche immunity and from liability in the future. And the third case was that really interesting 16th Amendment case. What is income when it comes to Congress's taxing power? But before we get to any of those, David, we had an opinion. So fast, Sarah. So fast. The Atchison Hotels case, Atchison Hotels v. Laufer, this is the woman, the self-appointed ADA tester. So fast. The Atchison Hotels case, Atchison Hotels v. Laufer, this is the woman, the self-appointed ADA tester.

She's in a wheelchair. She goes to websites to look at whether they say for each room whether that room is ADA accessible. If it's not, it would violate a regulation that would then, that comes from the ADA. She sues them. She immediately says she's willing to settle for $10,000. She's brought 6,000 of these lawsuits. She's created her own circuit split.

Atchison Hotels says she doesn't have standing to bring this lawsuit against us. She had no intention of ever visiting the hotel. She acknowledges that this is just her sitting on her computer at home, scrolling through websites. The Constitution says it must be a case or controversy. The Supreme Court's precedent says you must have an injury in fact. Now, we talked to Judge Newsom about this a lot in our last episode, and he said, where's that coming from? That's not what the, you know, the Constitution only says case or controversy. Where is this injury in fact coming from and why is it being used to sort of block courthouse doors?

These are all of the really interesting questions that could have been resolved in Atchison Hotels. Yes. But they weren't because while standing is a jurisdictional question, so is mootness. Now, we have Justice Barrett writing for a unanimous court. She writes that the case is moot. We'll get to her reasoning here in a second. Justice Thomas wrote a concurrence because he is concurring in the sense that lawful does not have

a case. There's no jurisdiction. But he says there's no jurisdiction because she has no standing. He would have reached what, for our purposes, were the merits of this case. And then you had one from Justice Jackson. She's concurring in the outcome, but saying there's a whole Justice Jackson world about Munsing where vacator and whether when this sort of thing happens at the Supreme Court, what should happen to that appellate court decision? The Supreme Court here basically got rid of the appellate court decision. It doesn't exist. It was vacated under a case called Munsingware, as you might guess. And she's saying, no, it should be treated as if we never took cert

in the first place. We don't vacate a whole bunch of other circuit decisions. Why is this special? Just because we took cert for the case. So, David, they didn't get to it, man. Didn't get to it. Could have been interesting, Sarah. It could have been. This is the, oh gosh, was it, what movie was it? Where was it? De Niro goes, I could have been a contender. Wasn't it Taxi Cat? Was that Raging Bull? No, gosh. What movie was it? Where was it? De Niro goes, I could have been a contender. Wasn't it Taxi Cab? What's that? Raging Bull? No. No, maybe.

No. Oh. I don't know. So many movies. He's in so many. Some movie somewhere he said he could have been a contender. This case could have been a contender, Sarah,

for most interesting case in the term. Instead, it is not. It's mainly a big zero. Oh, my God. We were wrong both of those. It's on the waterfront. Oh, it's on the waterfront. Oh, okay God, we were wrong both of those. It's on the waterfront. Oh, it's on the waterfront. Oh, okay.

It's Marlon Brando as Terry Malloy on the waterfront. So it is not De Niro. Just wrong on everything. Wrong on everything. Everything was wrong. Could have been a contender. But other than that, it's a really good podcast. Yeah.

Oh, that's great. That's so fantastic. How many people were screaming in their cars listening to this? Oh, so many. So many. And what's unfortunate is that had they actually decided this on standing, it would have really, a lot of listeners would have been very happy with it because we would have had another standing discussion with good precedent that we could have unpacked

to help ease their concerns about our longstanding standing conversation. But instead, we get what was the most interesting part of this to me was the paragraph from Justice Barrett that goes like this. Lawford does not argue that we must dismiss her suit for mootness. She acknowledges that we can address

jurisdictional issues in any order we choose. Sidebar for a second. We have talked about this concept of a jurisdictional issue, standing, mootness. These are the kinds of issues that tell you whether the court even has the jurisdiction, the authority to hear the case. Okay, back to the paragraph. She acknowledges we can address jurisdictional issues in any order we choose and so have authority to resolve the standing issue. So in other words, she's coming in saying, you can resolve standing.

I would prefer you resolve it on mootness. So back to the paragraph. But mootness is easy and standing is hard, Lawford says. She urges us to refrain from resolving a difficult question in a case that is otherwise over. And the Supreme Court basically says to that, okay, that sounds good to us. There's no canon of do the easy part.

Moodness is easy and standing is hard. I think that is basically the line of the opinion. And... It is. But, so Justice Thomas, as I mentioned, he would have reached the standing question before the mootness question. He would have found that she doesn't have standing.

Nobody joined his concurrence, probably because mootness is easy and standing is hard. Maybe I need to get that framed on my desk here. Here's the money line, if you will, from his concurrence. We should address Laufer's standing rather than resolve this case on mootness. As an analytical matter, whether Laufer had standing the day she filed her suit is logically antecedent to whether her later actions mooted the case. More importantly, whether Laufer had standing to bring her reservation rule claims is a recurring question

that only this court can definitively resolve. As the majority explains, Laufer has single-handedly generated a circuit split on her standing. Beyond answering this question for our colleagues on the Court of Appeals and district courts, we should answer it for Atchison Hotels, which has spent significant time and resources

fully briefing a question that will now go unanswered. And that I would add, and he does add later, that also they briefed at a time when mootness wasn't even an issue. The mootness only became even possible later on in the litigation. So yeah, this one's a bummer for Atchison Hotels. It's also a bummer for those of us who are into standing questions. I thought that Justice Thomas's concurrence was well-reasoned on the standing point. But again, you almost can't join his concurrence if the majority is saying like, no, we're resolving this on mood tests. Like you can't have it both ways. But it's a problem.

And one that Justice Barrett acknowledges that there did appear to be some strategic mooting of the case. Again, I think Justice Thomas lays this out pretty well. What is more, he writes, the circumstances strongly suggest strategic behavior on Laufer's part. After this case was well. What is more, he writes, the circumstances strongly suggest strategic behavior on Laufer's part. After this case was well underway in this court, Laufer filed a notice with the district court

voluntarily dismissing her claim with prejudice, ostensibly because another court sanctioned one of her attorneys for misconduct related to some of Laufer's ADA cases. But the attorney in question had nothing to do with the case before us. Laufer's logic is thus that she dismissed her claim and the court should no longer address whether she had standing

because an attorney she hired in an entirely different case engaged in misconduct. An unrelated attorney's conduct does nothing to change the analysis required to determine a plaintiff's standing. Laufer admits as much, arguing only that the alleged misconduct could distract from the merits of her ADA claim and everything she has sought to achieve for persons with disabilities like herself. I would not reward Laufer's transparent tactic for evading our review. Although the majority leaves the door open to exercise its discretion differently in future cases, we have needlessly invited litigants to follow Laufer's path to manipulate

our docket. Interesting side note, by the way. So her lawyer would file these lawsuits, immediately offer to settle for $10,000, which he would then claim as his attorney's fees, basically, even though he definitely did not spend anywhere near enough time to warrant $10,000. He was then paying Laufer's son-in-law some of that money as a, quote, investigator, which makes it appear as if Laufer herself were getting at least some money from these as well. Again, 6,000 cases at $10,000 a pop. Is it 6,000? Yep. Wow.

Yep. Yeah. So, okay. That's the end of that case. Well, you know, I thought, so I thought that Thomas had a good point and a weak point. The good point is I'm completely with him that should have, should have ruled on standing on this sucker. There's a lot of evidence of strategic behavior, et cetera. That,, I think, he makes a very, very strong point here. The one that is interesting to me is how he distinguishes this case from other cases,

such as like, oh gosh, was it fair housing? Where he's saying, in other cases where you have these testers, and we have held that there is standing, there is a right to information under the Fair Housing Act, that there's a right to information. So if you're denied that right to information, then you have a cause of action under the Fair Housing Act. And Thomas says, well, there is no similar provision in the ADA, the Americans with Disabilities Act,

that's a bad misspeak. Americans for Disabilities Act. That's not what it is. I actually hope a doc leaves that one in because A, I might have said that before, and B, yeah, that's how podcasts get made. Yeah, absolutely. Yeah, that's how podcasts get made. Yeah, absolutely.

So the ADA doesn't have the same statutory provision as the Fair Housing Act, but it does have something called a reservation rule, which is a regulation, not a statutory provision. It's a regulation that creates sort of the same kind of right to information. And it seemed to me from reading that Thomas would not view the reservation rule as creating a legal right to information. And that's what I found to be less persuasive. If the reservation rule is a valid regulation, then it does create a legal right.

But is he saying that the reservation rule is outside the scope of the statute? In other words, that it violates the statute? That's what I thought was a little shaky to me, because if the reservation rule is valid, doesn't that create a very similar right to information that the Fair Housing Act contains? That was my question. But if Thomas's position is the reservation rule is just flat out invalid, okay, got it. But there wasn't enough there to convince me of that. Interesting. I agree. And I read it as saying the reservation rule is a regulation that is not reasonably construed from the text of the ADA, but you're right that there was a little ambiguity there.

Yeah, yeah, absolutely. All right, David, we have no time for oral arguments today. And you know what? Maybe it's also just not the right mood for an AORal argument review at this point. So we're going to move to housekeeping. We're going to save all three of those oral arguments for the next episode.

But it's because we have really good housekeeping. So first up, there was a husband and wife oral argument duo that happened this week. Jesse Panuccio and his wife, Brittany Panuccio, both had oral arguments on the same day in different circuit courts. And I'm just curious whether that's ever happened before, because I'm not sure that it has. I'm certainly not aware of it happening. That's a really good question. And they must not have spent much time together over the last few weeks. Well, David, not to get too personal, but I can tell you they spent some time together about eight months ago, if you know what I mean, because Brittany and Jesse are expecting very soon. So in some sense, three Panuccios argued this week in the circuit courts, but one was pretty quiet.

Yeah. So congrats to the Panuccios. And speaking of our dating advice and whatnot, we got the most incredible email. I'm not sure that any email will ever top this. I think it's done now. We can just shut the door. I'll just read y'all the email. I'm not going to ruin it because I want you to experience what we experienced. Yes, please, Sarah. Sarah and David,

after enjoying your recent take on everything wrong with dating, I thought I would share my own story. Despite never harboring legal career ambitions, I've always been a bit of a legal nerd and started listening to Ayo early on. Ayo convinced me to listen to Supreme Court case audio and I haven't stopped. In the spring of 2022, I began dating online and listed the Supreme Court under my interests. A man messaged me and asked what I liked about the court and after messaging

online for a while, asked if I could recommend a case to listen to so we could meet in person and talk about it on our first date. It was the best way I have ever been asked out. Parentheses, we did shirtless the city of Boston. Great case for a first date. Philosophical enough to feel the other person out, but not so political. The date becomes an argument and parenthetical. And we've already talked about shirtless on this podcast.

That is the city of Boston flying flags and whether they can decline to fly certain flags while flying other non-city flags. On date five, I got nervous and started babbling about how a recent episode of my favorite podcast said that by date five, we should know whether or not we're going to get married. I do not recommend this level of honesty in such a new relationship. I'm as amazed as you are that there was a sixth date. It went something like this. Him. Oh, you listen to a relationship podcast? Me.

No, it's a legal podcast. Him. A legal podcast that gives relationship advice? Me. Yes. Him. Silence. Him.

I see. It made sense only once he listened to it for himself. Long story short, we're married now, and listened to Ayo and Quirk Cases together. His Christmas gift to me for our first Christmas as a married couple is a subscription to the Dispatch in perpetuity. I'm not saying you two are responsible for our marriage,

but you seem to be there every step of the way. So thanks. That's fantastic. And I do wonder, under a but-for causation analysis, are we responsible? I mean, I don't know. And I have to tell you, they sent us a picture from their wedding. It's a stunningly gorgeous photo. It's in the snow. There's little snowflakes falling in her curly, beautiful hair with tendrils around her face and this huge bouquet of white with just the slightest bit of pink touch,

roses, and he's quite handsome. It's the best email. It's so great. And it just personifies what we're trying to build here at Advisory Opinions. Philosophical conversations about the law and some relationships. I mean, come on.

Although I do have to say, as someone else who got married when it was snowing outside, I should also comment that neither of them are wearing coats in this photo. They're definitely outside in the snow. It is currently snowing on them. I have also been there and they're doing an excellent job hiding how cold they must be in this photo. Yeah, no question. No question. So congrats to Christine. We don't know your husband's name, Christine, but he sounds like a real keeper. And I love, I love the whole story.

So we're going to just end on that because clearly our relationship advice is amazing and we have already one marriage under our belt. But four years into this podcast, David, let's see how many more we can be responsible for. Sarah, to be precise, one marriage that we know of. That's right. If you have gotten married because of advisory opinions, do let us know. Let's so, I'm sure there's so many, so many people. And with that, thank you for joining us for this ranty AO. We'll see you next week where we'll go back to the very philosophical 7th Amendment, 16th Amendment, and a little bit of bankruptcy law.

And yes, obviously I called Father of the Pod to ask what was going on in that case. Bye. All right, look at your screen. Look at your screen for the race. I'm not even looking up to see if Adam has stopped it because I don't want to look away. Oh, frick, I have to do the intro.

Oh, darn it. Okay, do the intro.