Advisory Opinions - Supreme Court Blocks Texas Social Media Law

Episode Date: June 2, 2022

David and Sarah cover a wide variety of topics, from the Amber Heard/Johnny Depp verdict, to the acquittal of Michael Sussman on charges of lying to the FBI in a case brought by special counsel John Durham, to a Pennsylvania election law dispute, and of course the Supreme Court’s decision in the Texas social media case. They end with a discussion of a new Gallup poll about abortion rights and a discussion of the many problems of issue polling.   Show Notes: -NetChoice, LLC v. Paxton -Sarah in Politico: “What Alito Should Have Written” Learn more about your ad choices. Visit megaphone.fm/adchoices

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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 five seconds. Ah, do, da-da-dee-da, do-da-do-do. Certain conditions apply. Details at Fizz.ca. You ready? I was born ready. Welcome to the Advisory Opinions Podcast. I'm David French with Sarah Isger.

And a housekeeping note before we start. I actually have two housekeeping notes before we start. One is we're going to have a schedule change for Advisory Opinions. You can now count on Advisory Opinions landing in your feed Tuesday and Thursday morning. Tuesday and Thursday morning. We're tweaking our recording schedule to make it more reliably show up at the same time every week. So expect it Tuesday and Thursday morning. There's another thing that housekeeping that I need to get to. But first, a quick preview of what we're going to talk about. A little bit of Heard-Depp trial, a little bit of the acquittal and the Durham prosecution against an attorney named Michael Sussman. We're going to talk a

little bit more about a Pennsylvania election case that Sarah is keeping close tabs on. We're going to talk about Scott's Texas husband at the pod wins again at SCOTUS. We're going to talk a little gun control, and we're also going to talk a little bit about public opinion in a polling about abortion. But before we get to that, Sarah, I have an airing of the grievances.

It's Festivus for a moment. And here's my airing of the grievances. One of the reasons why it's fun to be your friend is inside, quick inside info, okay? Especially when your husband is involved in a Supreme Court case. So I will go to the record. Oh no, I know where this is going.

Tuesday, 3.44 p.m. Stand by for news, a text to me. Court just called Scott. Me, 3.44 p.m. This is 4.44 p.m. your time. Oh my. Nothing. Not a word.

I wait. And I think, I'm not gonna to go to the SupremeCourt.gov website like an ordinary working stiff. When I've got an insider, I have an insider right now who just said, stand by for news. 440, that's for those keeping score at home, 56 minutes after stand by for news. I just respond with about 12 question marks in a row. For four more minutes, long silence, and what do I do? I go to SupremeCourt.gov, like every ordinary working stiff in America, and I find out that Sarah's husband won 5-4 with an Alito dissent, and that Kagan doesn't join in,

but she dissents from the ruling. What gives? Well, it wasn't public. Well, so? I know. Yeah, no. Look, if you had called at that point, I probably would have had no choice

but to tell you. But, I don't know. Husband of the pod was making me feel. It says stand by for news. It says. Stand by for news globally. Like as in you're about to get a push notification. Not from me necessarily.

Oh, oh, oh. Okay. Not from you. Okay. I'll see. Now, interestingly, I went into this podcast thinking that because we didn't record a Memorial Day, it was like the longest, one of the longest stretches I've gone without talking to you and how much I missed you and what an important friend you are.

And you come at me with this? I'm just, I've been, I mean, this is since Tuesday. Fuming, just fuming. Although, you know, you did resume texting after that with an analysis of the decision, but. Okay. David, what David's actually mad about is that the youngins on our Slack channel

had some hot takes on Top Gun versus Maverick. And it is weird hearing people who clearly watched Top Gun as a classic old movie. Yeah. Then talk about this movie as if it's for their generation. And then there's this old movie that they don't like so much that they think is really cheesy and dumb. And I think that's what you're actually upset about. And you're misdirecting your violence towards me. It could be.

It could be. But enough with the pod drama. I just I just wanted to register that objection in public. Enough of the pod drama. Let's talk a few news items before we dive into Scott's very interesting case with a very interesting dissent that we need to talk about. So her depth, Sarah? Yeah. So the verdict came out yesterday. I, you know, the jury came in and then they were sent back because they didn't like fill out their paperwork correctly. We've all been there. But so I watched the verdict get handed down. And

well, first, let's let's catch up on what happened. So the jury awarded Depp $10 million in compensatory damages, plus $5 million in punitive damages. Now, Virginia law actually has a cap on punitive damages at $350,000. So basically he gets $10 million. Now, of course, he doesn't actually get any of this because I think she's probably judgment proof, but regardless, jury awarded Amber Heard $2 million in compensatory damages for a statement made by Depp's lawyer, who was acting as Depp's agent. That's how it's all part of the same case, part of her counterclaim. His statement was, and remember hers was in that 2018 Washington Post op-ed where she said she was the victim of domestic violence. So that's the statement that she got poured out for. Here's the lawyer's statement. Quite simply, this was an ambush,

a hoax. They set Mr. Depp up by calling the cops, but the first attempt didn't do the trick. The officers came to the penthouse, thoroughly searched and interviewed, and left after seeing no damage to face or property. So Amber and her friends spilled a little wine and roughed the place up, got their story straight under the direction of a lawyer and publicist, straight under the direction of a lawyer and publicist and then placed a second call to 911. So, David, in order for this all to work, you have to, the jury had to find that Heard's statement that she was the victim of domestic violence was false and that she knew it was false, basically, and that Depp's lawyer's statement was false and that he knew it was false, basically, and that Depp's lawyer's statement was false, and that he knew it was false. And here's where I think, first of all, first of all,

for all of you in the comment section who got very cranky at our coverage about this case and said that we were totally wrong, that there was no evidence that Depp had abused Amber Heard at any point, that the photos that I was talking about were potentially fabricated. I will tell you that I thought you were maybe a little too into the online version of this trial. And you were clearly more representative of the jury than we were. Absolutely. So, A, kudos to the AO commenters, legal eagles that you are. Two, this verdict, David, there's a few problems with it. One, the way that defamation cases work is that the reason that you have to kind of prove the big thing false instead of the small thing, like, you know, you said it happened on a Tuesday,

but it really happened on a Wednesday. Aha, defamation. Like why that doesn't work is because then there's no damages because the defamatoryness of the statement comes from the abuse allegation, not whether it was a Tuesday or a Wednesday. So the jury finds that Amber Heard was not the victim of domestic violence from Johnny Depp. Okay, check. That makes sense to me. But the lawyer's statement is, this was an ambush, a hoax. And then there's some details, which I think they found that he knew were false. And what's interesting to me is that the jury found that the damage, therefore, to her reputation came from, for instance, that she got her story straight under the direction of a lawyer and a publicist, not that she had fabricated abuse allegations

against her husband slash ex-husband. That, I think, you can argue it either way. I think you can argue that that's an inconsistent jury verdict. I think you can argue it either way. I think you can argue that that's an inconsistent jury verdict. I think you can argue that it's a consistent jury verdict, that in fact, saying that not only was someone making up abuse allegations, but that they had this really conniving way to do it with a lawyer and a publicist. I am open to the argument that that is extra defamatory, different than just saying that you made it up. But given all the evidence that they heard that they believed

in order for her not to be abused by Johnny Depp, I was a little surprised by it. It'll be interesting to see what happens on appeal. It's very hard to set aside any jury fact finding on appeal. So you're really only arguing about law or that no reasonable juror could find the facts that those 12 people unanimously found. Like that, no, that's not going to happen, I don't think. Now, of course, the law side of this, like what counts as defamation is always available. And I thought that Eugene Volokh on the Volokh conspiracy website made an interesting just note. He wasn't really arguing one way or the other, as far as I can tell. But one might therefore argue that there shouldn't be any defamation

liability in cases like this, regardless of whether a jury finds actual malice, In cases like this, regardless of whether a jury finds actual malice, which is to say knowing or reckless falsehood, precisely to avoid a chilling effect. So for instance, he said, even if you know someone beat you or groped you or raped you, you might reasonably worry that a jury won't believe you and will indeed conclude that your statement is a lie. That might deter you from making even such true statements and not just the false statements which the law is supposed to deter. It's an interesting part of defamation law and libel law, David, that you've got a problem

either way. If it's too strong, you have this chilling effect. If it's too weak, you have people out there intentionally destroying someone's reputation with monetary damages. And in this case, you know, Depp argued he lost specific contracts for movies because of it. Yeah, not good either way, I guess. No, no. This is one of those situations where it's very difficult to find sort of the line that is just with a capital J in defamation circumstances. And, you know, we don't get a huge ton of guidance when we're talking about the interplay from the constitution, when we're talking about the

interplay between defamation and the freedom of speech. I mean, we know, we know that defamation historically is not considered to be part of the freedom of speech protected by the First Amendment. But what is defamation and what is not defamation is not defined by the First Amendment. And there's a lot of play in the joints there. And it's not hard. It's not easy. I'm sorry. It's not easy to figure out exactly where that line should be.

So, yeah, I don't have any thoughts to add to that, to be honest, Sarah, other than to say that op-ed, I've been kind of tracking it. It's remarkable how long that op-ed that triggered this defamation case has been among the most read at the Washington Post. And I would be fascinated to see the total readership of that op-ed. How much money did the Washington Post make off this now, having found by a jury, libelous post? That's interesting. And the Washington Post now has an editor's note on the op-ed. And it says this, In 2019, Johnny Depp sued Amber Heard for defamation arising out of this op-ed. On June 1, a jury found Heard liable on three counts for the following statements

which Depp claimed were false and defamatory. Now, these are the statements. One, I spoke up against sexual violence and faced our culture's wrath. That has to change. Two, then two years ago, I became a public figure representing domestic abuse and I felt the full force of our culture's wrath

for women who speak out. And three, I had the rare vantage point of seeing in real time how institutions protect men accused of abuse. Those were the statements that the jury found were defamatory. I'm going to find it very interesting how that does on appeal. Well, and this goes back to all of this. All of our defamation conversation goes back to

New York Times v. Sullivan, which I think we throw that around a lot, but I just want to remind listeners what that case was actually about. This was a full-page ad that the New York Times published by supporters of Martin Luther King, criticizing various public officials in Montgomery, Alabama for mistreating civil rights protesters. But they got, you know, a bunch of the details wrong. The number of times King had been arrested, which song the protesters had sung, whether students had been expelled from their schools for participating. So the police commissioner sues the Times

and basically Alabama courts all the way up to the Alabama Supreme Court rule in favor of the police commissioner that he had been defamed by the inaccuracies in this ad awarding him damages. The Supreme Court, it's a 9-0 ruling, but there's a lot of different opinions in it. And so, for instance, the losing side, worth quoting here for a second, it may be urged that deliberately and maliciously false statements have no conceivable value as free speech. That argument, however, is not responsive to the real issue presented by this case, which is whether that freedom of speech, which all agree is constitutionally protected, can be effectively safeguarded by a ruling allowing the imposition of liability upon a jury's evaluation of the speaker's state of mind. If individual citizens

may be held liable in damages for strong words, which a jury finds false and maliciously motivated, there can be little doubt that public debate and advocacy will be constrained. And so it's interesting, this had three votes versus what we have now, which is this like public official actual malice standard, which I think is a hot mess. And you and I have talked about at some length, I love reading the concurrences or the dissents that are totally reasonable and the law doesn't follow that path and sort of what our debates would look like if they had. And the Herd Dep trial certainly turns out differently under the Goldberg, Douglas, and largely black version of New York Times v. Sullivan. Yeah, interesting. Okay. I mean, kind of interesting. Okay, Michael Sussman,

Michael Sussman trial. Now this, for those who don't know about the Michael Sussman trial, this was an attorney who was an attorney for the Clinton campaign and had also, I believe, worked with Fusion GPS, which is the group that had created the Steele dossier, the infamous Steele dossier, was tried on a single count of lying to then FBI General Counsel James Baker about whom he represented when he came to Baker with information about an alleged secret

communication channel between the Trump Organization and a Russian bank called Alpha Bank. So the question here was, essentially, did Sussman break the law when, as Baker testified, did Sussman break the law when, as Baker testified, he says he came forward essentially to talk about a link between this Alpha Bank and the Trump Organization, an alleged communications link that turned out to be a dry hole. It turned out to be really a dead-end thread in the whole Trump-Russia story. Did he break the law when he allegedly told Baker he was coming on his own to talk about this link versus coming as an attorney for the Clinton

campaign, coming as a partisan? And the jury acquitted him of that charge. And I think there's a couple of ways that the jury could reach the acquittal. One is the jury could potentially have believed that there wasn't a lie. I think I find this one to be maybe the less convincing explanation, Sarah. There was a text exchange that bolstered Baker's memory of Sussman saying he was coming on his own.

And it says this, Jim, it's Michael Sussman. I have something time sensitive and sensitive I need to discuss. Do you have availability for a short meeting tomorrow? I'm coming on my own, not on behalf of a client or company. Want to help the Bureau. Thanks. Okay. Seems pretty clear he's saying he's coming on his own. And is he lying there? Well, one explanation that he's not lying is that

he would say, well, although I had clients, I was not coming at the behest of my clients. I was coming as a concerned citizen. Okay. The other issue is that the lie has to be material. Now, to be a crime under the law, it has to actually be meaningful to be a crime under the law. And that's actually a threshold that's pretty low in real life, the materiality. But again, that's an issue here

that could have led to an acquittal is that the jury didn't believe that it was material um and you know there's some evidence to indicate that the that the fbi really didn't view the um the alpha bank issue as serious at all, that this was not something that was really of any real meaning to them. Yeah, I don't know. I don't know which one of those two the jury dealt with, but he was acquitted and he was acquitted pretty quickly. What are your thoughts on it, Sarah? Because I've got thoughts that kind of go beyond the actual acquittal here. Yeah, I mean, like the last case we talked about, I think this sets up some interesting incentives in political campaigns that I don't like. Now, I don't think this case directly affected those incentives. I think it's more atmospheric.

But as someone who started campaigns in opposition research, I don't love the idea of campaigns trying to weaponize opposition research to state or federal law enforcement as a way to then win the campaign. It's different, of course, I guess, if you actually uncover a crime that you just need to alert the police about. But that's a pretty fine line because what we see and what came out in the Sussman trial was a campaign desperately trying to get the New York Times to write about this, trying to get media attention for it. And going to the FBI appeared, although it's possible the jury disagree with this, appeared, although it's possible the jury disagree with this, appeared to be part of that overall strategy to have this as a campaign tactic, not to protect the American people per se.

So again, as a campaign tactic, I don't love that. Now, on the flip side, I think probably federal and state law enforcement are going to be more skeptical also of people associated with campaigns who come to them with potential malfeasance by their opponents, which again might not be great because these are the people who are spending a lot of money to dig through someone's finances, various background. They're more likely to find evidence of a crime if they're doing that, and they may well. So again, interesting incentives back and forth there. I also think it will have an interesting effect internally in the Department of Justice. DOJ does not like losing cases. AUSAs play to win and they almost, almost always win. It's why if you're a defense attorney and,

you know, a federal prosecutor indicts your client, you're looking at how to minimize what's about to happen to you because they don't bring cases that they can't win. It's actually an interesting sort of ethical debate, right? Do you bring the cases that should be brought because you believe the person is guilty? Or do you only bring the cases that you believe you will win in a jury trial? And DOJ, for the most part, takes the second route, that even if they believe someone is guilty, that they did something wrong, that they should be punished for that. If they don't think a jury will, like a high likelihood, very high likelihood that a jury will agree with them, they won't bring the case. Which is interesting, I think. This case is a

high-profile loss that follows on the heels of another high-profile loss in the Gretchen Whitmer abduction kidnapping plot. So I also wonder whether it will have a bit of a chilling effect in the Department of Justice, which would be bad or good, depending on your angle on this, I suppose. But at a time where, for instance, I think we should be prosecuting a lot more gun crimes, you know, federal lie and tries or felons in possession, things like that. I always thought DOJ probably leaned too heavily on the, we only bring the cases we can win in the first place. And then losing some of these cases is going to, I think, ratchet up the pressure to need

to win. Yeah. Yeah. It's, that is an interesting, that I think that's one interesting sort of analysis of the side effects of this trial. I think there's agents who testified that would have mattered to them if they'd known the information came from a campaign, but they also said they would have done the exact same technical analysis even had they known. So that made the materiality argument more difficult to sustain. But the interesting question here was, we're still in, Sarah, and this is something, an issue you know as well or better than anybody on the planet, we're still in a fight over the Russia investigation.

And so we're in, the essential fight is this, is was the Russia investigation primarily a good faith effort to uncover whether the Trump campaign or the Trump organization had engaged in unlawful activities in the course of the campaign. Good faith effort triggered by actual evidence of inappropriate contacts, or was it from the beginning a sort of Hillary Clinton Obama administration op that this was an entrapment op a fire insurance or what was it was it flood or fire insurance policy that was going to knock Trump out even if he won the election and so there are a lot of people who use this trial and some of the evidence introduced in this trial about how the Clinton campaign went to, wanted to go to the press about these linkages as evidence that the whole thing was an

op, that this was, you know, that this was a, the Russia hoax was a Clinton op. And that, that's what, you know, if you're listening to right-wing Twitter or you're reading right-wing Twitter, this is what the trial was about. Now, there's some problems here, as you might imagine, when you have the combination of Trump and Clinton both involved in something. And that is, if you peel the layers of Clinton, you're going to find shady stuff. And if you peel the layers of Trump, you're going to find shady stuff. And so, you know, if you are somebody who's a right-wing partisan, you can find some shady stuff in some of the origins of aspects of the investigation. So what was uncovered in the

Sussman trial, you know, this effort to talk to the FBI and not tell the FBI that you are coming as an attorney with a client, that's some shady stuff, even if a jury doesn't convict you of it. Some of the reliance, the repeated reliance on the Steele dossier, and the Steele dossier had a lot of shady origins. And the Steele dossier was instrumental in arguably the Carter Page FISA.

All of that is worth knowing and understanding and realizing it's deeply problematic. At the same time, Hillary Clinton wasn't involved at all in Paul Manafort sharing confidential information with a Russian agent. Hillary Clinton wasn't involved at all

with an effort of Roger Stone et al to establish a back channel with WikiLeaks. Wasn't involved at all with an effort to create a Trump Tower Moscow and then lying about efforts to create a Trump Tower. Hillary had nothing to do with any of that. And so two things can be true at once. You can have a Clinton operation that had some deeply troubling elements, and you can have a Trump operation that had some really deeply troubling elements. And we have to be able to hold those two thoughts together at the same time. And nothing in the Sussman trial makes

the Manafort interactions with a Russian agent okay. Nothing in the Sussman trial makes it okay for Kushner, Manafort, and Trump Jr. to meet with a Russian lawyer in the hopes of obtaining information from Russians about Hillary Clinton. Nothing makes it okay to lie about Trump Tower Moscow. Nothing about the Sussman trial has any real bearing on the appropriateness of any of those actions over there. So I just kind of end rant on this point that it is entirely possible when dealing with the Trumps and the Clintons that when you peel both of those onions,

you're gonna find some pretty bad stuff. And finding bad stuff in the Clinton onion does not mean that there isn't bad stuff in the Trump onion and vice versa. All right, check. Check, Pennsylvania, Sarah. Ooh, right. So. Check. Pennsylvania. Sarah. because you're literally just recounting the ballots that have already been counted. The recount period, though, includes counting the ballots that were put aside and then contested. That's where the rubber hits the road. And so some of these contested ballots, the Pennsylvania law says that a voter must sign and date the security envelope. But some voters

signed it but didn't date it. And in a election, a judicial election out of 2021, the Third Circuit, the Pennsylvania, the circuit court that oversees Pennsylvania, in the middle of the recount, held that it was immaterial whether voters had dated the security envelope in that 2021 race. And of course, the McCormick team races to court to say, aha, therefore you have to count the undated envelopes votes in this race in 2022. Well, not surprisingly, because the team that lost at the Third Circuit was also the same team representing Oz, who doesn't want any more ballots counted because he's ahead,

went to the Supreme Court, and do-do-do, it is ordered that the mandate of the United States Court of Appeals for the Third Circuit in case number yada-yada is hereby stayed pending further order of the undersigned or of the court signed Samuel A. Alito Jr., Associate Justice of the Supreme Court. What does that mean, David? First of all, it freezes that judicial election, still messy.

But one of the arguments that they were making is that the Third Circuit's order to count those ballots was going to have chaos effects, including in this 2022 McCormick versus Oz recount contested ballot election. And so those ballots not getting counted as of right now for or against McCormick, that's going to make it just even a little more hard for McCormick to get what he needs, which is at this point, I don't have the number right in front of me, but under a thousand votes. They have some other things that they're trying clearly. They said that there's some discrepancies in some of these county numbers. They want to hand recount a bunch of counties, but, um, you know, it was looking pretty good there as the votes were still coming in that has slowed down. I don't know the McCormick's going to make up the difference and Sam Alito just, uh,

kind of put a stake in that a little bit. When you're working out at Planet Fitness, it's a judgment-free zone, so you can really step up your workout. That's why we've got treadmills. And our team members are here to help, so you can be carefree with the free weights. There are also balance balls, bikes, cables, kettlebells, and TRX equipment, but like, no pressure.

Get started at Planet Fitness today for $1 down and then only $15 a month. Hurry, this great offer ends April 12th. $49 annual fee applies. See Home Club for details. Now on to the main event, Sarah. Husband of the Pod wins again at SCOTUS. Um, husband of the pod wins again at SCOTUS.

Um, can we just talk about how unpleasant it was getting living in my house as the Supreme Court didn't rule nothing, nothing, nothing every day. Like when it got to about two o'clock, the pacing would start. And then between three and five, it was just awful. Then by about six, it was like, okay, well, this isn't happening today. And then you'd have to recalibrate the odds because, you know, we thought, we meaning you and I, David, we thought that the odds were pretty good that he would win after the briefs were all filed, but then nothing happened. Then Florida came in with that Newsom opinion where the 11th Circuit strikes down Florida's with this long and thoughtful and smart opinion.

Still nothing from the Supreme Court. So then you're like, okay, they're writing. Fine. That doesn't tell us a whole lot either way. And then Friday Memorial Day came around and when he didn't hear anything on Friday, I was like, rut, row, I'm flipping my odds from 60-40 good to 60-40 bad. And then Monday, well, Monday was Memorial Day, then Tuesday, I mean. And then he was like, they called.

And I was like, oh, no. And same thing as with the vaccine mandate case, David, where they call the Council of Record to sort of tell them about things that are happening right before they post it to the website. Phew. about things that are happening right before they post it to the website. Phew! So 5-4 is a skin-of-the-teeth win,

as they say to the person who graduates last in their medical school class. Hello, doctor. Yes, exactly. And it's worth breaking down the 5-4. So we had five, which is Sotomayor, Breyer, Roberts, Kavanaugh, Barrett, who granted the stay. They granted the application to vacate the stay, technically restaying the Texas law. Let me just make it as simple as possible. Five of them voted to stay the Texas law. Okay. Kagan voted to deny the application. Now, does that mean she's with Alito, Thomas, and Gorsuch? I say no, Sarah. I say what was happening with Kagan is she's over the emergency docket.

Exactly my thoughts. Yes. She thinks they've been inconsistent, which she has said in previous petitions like this, that she just doesn't see a line of consistency on likelihood of success and the merits on irreparable injury. Those two sort of standing out the most, which this is why I was getting a little nervous because Kavanaugh and Barrett have been trying to stake out how to create that consistency. One of which, you know, when they actually wrote about it, they were saying like, OK, well, likelihood of success on the merits is going to include whether we would accept, you know, grant certiorari in this case. But I was like, yeah, but clearly they would grant cert in this case because there's going to be a circuit split. So even if you didn't think the issue itself was important, which they do, you'd have a classic circuit split between the 5th and 11th circuits, which would make it all the more likely. And so then I was like, uh-oh, now I'm worried that we're going to have a fight

over what status quo is. That you could have a Kavanaugh-Barrett-Kagan redoing the emergency docket standards entirely and defining status quo to be something more like a duly enacted government policy is the status quo. And so when you're talking about returning to status quo, that would in some ways set out more of a standard. Now, it would not include, I think, a regulatory action by the executive because the whole argument is whether that was duly enacted. So that can't be status quo. But when you're talking about a law passed by Congress and whether it should go into effect, or in this case, a law passed by both houses in Texas and

signed by the governor. You're not arguing over whether the law itself was enacted properly. You're arguing over the constitutionality of that law. And so status quo matters when you're talking about injunctions and what the rule should be. Now, a lot of people think status quo should just be whatever the situation was before there was a contest. You know, and government policy that they're trying to fix a problem that they think is vital versus the unconstitutional, you know, burden on individual students. Both of those were seen as irreparable injury. And so then again, you're back to what is status quo? Is it before there was a dispute, in which case you just go back to this old admissions policy that involves all these tests that they don't even offer anymore, yada,

yada? Or is it a duly enacted government policy that no one disputes was enacted properly? That's what I was concerned about. That's what I wonder whether Kagan is dissenting over. Kagan is dissenting over. I get the feeling it gets pretty simple, Sarah. I think a clerk walks into Kagan's office and says, I have a petition, Justice Kagan. And she says, is it emergency docket? And that at which point you see, are you familiar with that Homer Simpson gif

of him retreating back into the bushes? Yes. That's my feeling about Justice Kagan and the emergency docket right now. But I had high confidence as soon as the 11th Circuit decision came out. And there was a clear circuit split that you were going to meet the Kavanaugh Barrett test. Would we grant cert on this? Yes, absolutely. So you were clearing that hurdle. And then, you know, when you get to the Thomas Alito Gorsuch dissent here, this is interesting to me because it tells me a couple of things. Um, one,

One, Thomas is more of a leader than some folks seem to think, maybe. He, you know, what was the phrase you use sometimes here? The cheese stands alone. I like that phrase. I do. It's a great phrase, but it's a great phrase. But I think when Thomas issues one of his sort of here's where I am opinions, you know, on a dissent from a denial of cert or whatever. It's not always going to be just him. And, you know, what's interesting in the Alito, so the heart of the Alito Gorsuch Thomas dissent is essentially this. Here, let me read the key part. The law before us is novel as our applicants' business models. Applicants claim that Section 7 of HB 20, this is the section of the law that prohibited social media platforms from engaging in, quote, viewpoint discrimination, interferes with their

exercise of editorial discretion, and they maintain that this interference violates their right not to disseminate speech generated by others. Under some circumstances, we have recognized the right of organizations to refuse to host the speech of others. See Hurley versus Irish American Gay, Lesbian, and Bisexual Group of Boston, Miami Herald Publishing Company versus Tornillo. But we have rejected such claims in other circumstances. And this is where my eyes perked up. For example, in Pruneyard. Now, this is a case, Sarah, for those who remember, well, I'll just read their summary. We rejected the argument that the owner of a shopping mall had a First Amendment right not to be forced by the state to use his property as a forum for the speech of others. This is a case, Sarah, that you and I have said we don't know that it comes

out the same under the current court. But here's three members of the current court saying, hey, pruneyard. And then in Turner Broadcast, and going back to the opinion, and in Turner Broadcasting, we declined to apply strict scrutiny to rules that quote interfered with cable operators editorial discretion by compelling them to offer carriage to a certain minimum number of broadcast stations and then this is interesting see generally eugene volick treating social media platforms like common carriers question mark um interesting sarah now what's interesting doubly interesting about this is they kind of say, we're not saying the law is constitutional. We're also not saying it isn't constitutional.

Wait, did I just say? No, that's correct. I got mixed up in my double negatives. What were your thoughts when you read that? So I thought there were a lot of different reasons as to why they're denying the application, why they would vote to deny the application in here. Any single one of which would have been sufficient. And then it kind of, you know, it's like we're not we're not I don't know what the merits are. you know, it's like, we're not, we're not, I don't know what the merits are. I don't know. But also I definitely know and don't like it. But also the fifth circuit heard this case and we should leave it in place. This goes to kind of the, what's the status quo? What's our standard for stepping in on these emergency docket cases? That part I found in some ways least satisfying because I don't see that standard being applied to other emergency docket cases. So then you go back to the merits discussion, in which case it's just kind of like,

I don't know, man. What's the West Wing line? Boy, crime. I don't know. This felt like, boy, social media companies, I don't know. Yeah. Which I understand. And I think he's exactly right that obviously they will hear this case at the Supreme Court. And so what I wanted was a more logical walkthrough of which status quo should prevail and why and how you're going to apply that to future emergency docket cases. And instead, I sort of got post-it notes from the head of Sam Alito on social media companies and common carriers and a little prune yard and also the Fifth Circuit heard this.

So, you know, there's a lot of cases that are still pending at the Supreme Court. They're trying to wrap up opinions. This took a long time to write six pages. Yes. So I'm thinking that perhaps it didn't take a long time to write six pages. It took a long time to get to the writing of six pages quite quickly. But David, there's a few other things to talk about with this case, which is what happens next. So obviously the law is not in effect in Texas and the law in Florida is not in effect in Florida, but they're under two very different dispositions right now. So in Florida, uh, the tech companies, the social media companies have a ruling from the 11th Circuit, meaning that it's now in Florida's court. They've got the ball. Florida can either move to go en banc at the 11th Circuit, see if they can get some of the conservative justices maybe to write a dissent that gives the Supreme Court a nice roadmap, something like that, or just flip it. The 11th Circuit's a pretty conservative

court, although I'll say if you don't have Newsom, I'm not sure I can count to 50 percent on the 11th Circuit. Or they can petition directly to the Supreme Court if you're Florida. Some upsides and downsides of that. On the one hand, you get a Supreme Court case and there's certainly going to be some just hunger from, for instance, the Solicitor General of Florida to get a good case while you're in the job and do it. As far as your client's interest, the law isn't in effect right now. So even getting a bad ruling from the Supreme Court doesn't hurt you because your status quo isn't good. So I don't know. I don't know what they'll do you'd be surprised how many times folks go on bonk even though they could go directly to the supreme court now let's move to texas texas is actually pretty frozen because they don't have an opinion from the fifth circuit

all they had was that initial um lifting of the stay of the district court order and so both sides at this point waiting to actually hear from the fifth circuit could be a month could be four months could be five months could be a while um but i think we know how the fifth circuit's coming out on that one florida may also want to buy time to get that you know they don't think they can get a good decision from you know the 11th circuit on bonk even still go on bonk because you actually don't think they can get a good decision from, you know, the 11th Circuit en banc even, still go en banc because you actually don't want to go up to the Supreme Court without that Fifth Circuit opinion. So hold on and just get that Fifth Circuit opinion from Texas. So obviously,

the social media companies will then lose in Texas. I think it is clear. In which case, same thing, right? Tech companies could go en banc on the Fifth Circuit. Again, I don't see how you can win, though, if you're missing Oldham and Jones. Hard, not impossible, maybe easier there. But at that point, you're going to have two similarly situated cases. Either one will file for cert at some point. And then, David, I'm very interested if the Supreme Court consolidates the cases. They don't have to. And it doesn't really matter whether they do. And the laws are different in their disclosure requirements. Right. But consolidating cases is fun. And just for my own household,

I would find that fun. And, you know, I think if you're thinking about the ultimate outcome, at this point, I'm thinking you've got six votes if you're the social media companies. Otherwise, why doesn't Kagan join with Alito, Gorsuch, Thomas? And if you are Florida and Texas, I don't necessarily read that dissent as saying I have definitely three votes. I would say, hmm, I got a good shot at three votes. But I'm not reading this case as saying I have a good shot at five votes if I am, if I'm representing Texas or Florida. Um, it, I, I would, let me put it this way. Um, while this ain't over, while this ain't over, um, I kind of feel like I

hear somebody warming up, a certain rotund person warming up in the wings. And so it's not over. It's not over. But it's hard for me to see at this point, how do Texas and Florida count to five? That's very difficult for me to see. I agree. But I think you got to still try. And we'll take a quick break to hear from our sponsor today, Aura.

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watching TV at the end of the night. I'll hop on the app and put up the photos from the day. It's really easy. Right now, Aura has a great deal for Mother's Day. Listeners can save on the perfect gift by visiting auraframes.com to get $30 off, plus free shipping on their best-selling frame. That's A-U-R-A frames.com. Use code advisory at checkout to save. Terms and conditions apply. All right. So should we, we've got so many topics. All right. So why don't we talk for a minute about some recent abortion polling, mainly because I'm really interested in your perspective on it, Sarah, because you, whenever you say I have thoughts, my next response is intriguing. So tell us about the polling and tell us your thoughts. thoughts. Sure. So Gallup pro-choice identification rises to near record high in the U.S. after a decade in which Americans' identification as pro-choice varied narrowly between 45 and 50 percent. The percentage has jumped to six points, sorry, has jumped six points to 55 percent in the wake of the leaked Dobbs draft. Pro-choice sentiment is now the highest Gallup has measured since 1995,

when it was 56%. The only other time it has been at the current level or higher. While 39% identifying as pro-life is the lowest since 1996. So David, I read this and thought, huh, that is interesting. And a little bit surprising for a few reasons. One, you and I've given our reasons as to why we didn't think that not just the Dobbs draft, the Dobbs opinion was going to actually shift the politics on abortion very much. So I won't re go through all of that. But the short version is the people have already kind of sorted themselves into columns. You've already, you've had 40 years to really think about your thoughts on this issue. So this probably won't change it. And so that number was surprising to me, obviously. And I thought, well, David, I think we could just be wrong about this. And that, you know, when the

rubber hits the road, people reconsider what they thought they knew about the issue when it was just a talking point, which has always been the argument against our take on this. And I'm very open to that just turning out to be true, even if it doesn't have data, because you can't have data for something that hasn't happened. Right. But then I went into the cross tabs, crossy cross tab tabs, and I'm reading along. You have to kind of like imagine me reading this as I'm like, whew, I was wrong about this one. Okay, gender.

Men, just slightly more likely to identify as pro-choice. Women, more likely to identify as pro-choice. Younger voters, sorry, younger Americans, 18 to 34, definitely jumps in this poll compared to before. But David, party ID. Where is the biggest change? Huge change in people identifying as pro-choice Democrats, the people who are already voting for the pro-choice party. So it turns out to me, at least reading these numbers, the problem is actually that the terms pro-life

and pro-choice have lost their meaning and aren't particularly valuable to people when they're having these conversations. Because does pro-life mean that abortion should be illegal in all circumstances, but not for a lot of people who are pro-life. And ditto, does pro-choice mean that you can, you know, kill a baby as long as, you know, all of it isn't out? No, of course not. That's not what pro-choice means. And so then what do the terms even mean? That's why the polling on,

do you support, you know, the court keeping Roe v. Wade in place? But you have to know where Roe v. Wade is. Right, right. That's an interesting question in the sense, well, will they lose trust in the Supreme Court regardless of whether they know what the Supreme Court did? But it has no bearing on what people's views on abortion are. So, David, by and large, I'm looking at numbers like this, and there's been other poll versions of this question. And actually, this supports the sorting thesis more than it discredits it. Yeah. Yeah. It is very interesting. I read it. It says 55% identifies pro-choice,

highest percentage since 1995. Wow. And then it says, because I got an email, a PR email from there, from Gallup. And the very first bullet point after that increase is mainly driven by Democrats. In other words, the people who are actually already voting Democrat. So the underlying political reality doesn't change. And the other thing that I want to say about the underlying political reality, which is also going the other thing that I want to say about the underlying political reality, which is also going to fold into our gun control conversation, is that I will remind everybody once again about the dangers of issue polling, that it is very possible that you can have a position that is held by a majority of Americans,

even a very strong majority of Americans, but with low intensity. And so therefore, it doesn't impact their vote all that much. And so this is particularly salient in the gun control conversation because you will have a lot of gun control proposals that are overwhelmingly popular,

but are not really intensely held. Whereas concern about inflation might be very intensely held and drive a lot of voting because people are discontent with inflation, even if it means that they're ultimately, so for example, if they're going to turn out Democrats in 2022 because they're deeply discontent about the state of the economy, they're going to then be voting in people who might dramatically differ with them on universal background checks because the intensity is different. And I think and I wish I really wish every time we did issue polling that it would be followed up by something that says this tells

us little to nothing about intensity or knowledge or knowledge. And so interesting because in the focus groups that have been happening post the Dobbs draft, you see exactly that, particularly among Republican leaning and independent voters, that to the extent they disagree with the Republican Party on abortion, they care about 10 other issues more. And so it's not going to change their vote. But what you're going to see in polls is, for instance, that they're more likely to identify themselves as pro-choice right now. But you're not asking the follow-up question is, will you change your voting behavior? Oh, absolutely not. Yeah, exactly. Exactly. And you

look at the issues, the priority list of issues, and you'll see time and time again, abortion is near the lowest. And now as somebody who's been pro-life my entire adult life since I knew what abortion was, that's always been a source of distress for me that, yeah, you can get a sort of a lot of pro-life sentiment in the air, but rarely could you actually get much pro-life intensity. And I know that's a source of frustration for a lot of pro-choice advocates, that they can get a lot of pro-choice sentiment in the air, but not a lot of pro-choice intensity. It turns out people care a lot more about literally bringing home the bacon. Do you know how much I paid to fill up my car yesterday, David?

Ah! Yeah, that's a lot of money. It was an outrageous amount of money. I now think about how much it's costing me to run errands, like the gas, and so being more efficient in my errand running, which is good for the planet and all of that. So my son is taking, he's now waiting tables, a rite of passage where you learn about human nature. Yes, I was going to say the depths of humanity.

Yeah. But before, right after he's taking a little time off school and right as he was, he first, right before he started waiting tables, he was door dashing. as he was, he first, right before he started waiting tables, he was door dashing. And door dashing is a lot less viable in the current gas price environment. But yeah, it's amazing. And what's interesting to me, what's kind of ironic is we often vote on the matters that are less in the control of our political leaders and don't vote on the things that are less in the control of our political leaders and don't vote on the things that are very much in the control of our political leaders. So whether or not you pass gun control legislation or whether or not you pass legislation that either codifies or bans abortion is absolutely in the legislative control. It is absolutely in the control of a legislature.

There is whether or not you get inflation under control or whether or not you create jobs, whether or not Russia and Ukraine stop fighting. A lot of these things are not so neatly in the control of politicians. And yet that often is the number one thing that we're thinking about for an awful lot of understandable reasons, right? I mean, it's obviously completely understandable that I'm going to look at gas prices or bacon prices or milk prices and suffer from some shock.

But it's also not the case that we necessarily can neatly do anything about it politically within a reasonable time horizon. So I just find that an interesting kind of irony that the thing that we vote for and that the thing we've, that drives a lot of our voting is often something that is less immediately in the control of the government. And the thing that's, that are immediately in the control of the government, we might sometimes vote on them and prioritize them less. So David, since we're on this topic, we're going to put one other thing in the show notes. In sort of working through this topic on the podcast, I wrote a longish piece for Politico on what I think the Dobbs opinion should say, what I had hoped the Dobbs draft would say.

And I was pretty scared about publishing it because I knew that it would basically just make everyone angry, regardless of your opinions. Obviously, if you think that Roe should be upheld, there's nothing I can write. That's going to make you believe that it shouldn't be, which wasn't my goal by the way. Uh, but you know, also on the right, like, who am I to say, you know, that justice Alito can write better. Um, so I'm going to continue my gluttony for punishment and put it in the show notes. But this is my overall point that the Alito draft wasn't persuasive. It wasn't intended to be persuasive in my view. And that when you have six appointees from one, appointed by presidents from one political party, you are leaving open the charge that there's going to be permanent winners and losers at the court. And when that's the case, you're going to see real changes in behavior. I think the leak

is, and by the way, I don't think there's any excuse for the leak. You'll know how I feel, fire all the clerks. But it's still important to talk about the reasons for the leak. And I think this is partly one of them. If you knew as a clerk that leaking a draft opinion could have profound effects on a potential swing vote in a 5-4 court on affirmative action, the Voting Rights Act, all these cases that are teed up for next term, I think you'd be far less likely to do it. But if you think there's permanent winners and losers and nothing matters, then yeah, not only are you less protective of the institution, you actually want the institution to be undermined because it's going to rule against you in every thing that you care about, not just this case. Why would you want that institution to have

credibility if you don't think you can ever win again. And so sort of, I think the Supreme Court needs to rethink maybe how they're drafting opinions, how they're talking about why they're ruling a certain way. I think the Supreme Court opinions tend to have the air of, this is obvious. This is the only way it could be. And everyone who disagrees with me is simply wrong, not in a rude way, but just a very assured way. And that perhaps they need to approach it with more humility. And the Supreme Court has plenty of stuff to be humble about in its history. So it's not like this institution has ever been infallible. So, and I get some, I get some Frederick Douglass in there. I get obviously a lot of Harlan.

So yeah, I'll put it in the show notes. I'm curious what dispatch members in the comment section think of it. Let me know. And definitely do read it. And I will just say that it was a topic of conversation at dinner in the French household. that it was a topic of conversation at dinner in the French household and that you had real fans of that piece in the French family. So...

Wow. Yeah, yeah. So put it... I'm glad it's going to be in the show notes and so definitely give it a read. I have this line in it, which, David, it'll be a test for you. Okay.

We know today's decision will be met with sadness and anger by many people who have strongly and sincerely held beliefs on this question. To them, we say, you may be right. We can only do the job we have been assigned to the best of our ability, with firmness in the right as God gives us to see the right. But that does not mean we are any more infallible than any court which has sat before us. And if you believe we are wrong, use your voices and your vote to say so. Pass an amendment to the Constitution. Draft legislation for your state. Protest outside this very building. That is the genius of the ratifiers of our Constitution. And that is the gift they have

given us that so many billions of our fellow humans may never experience. With firmness in the right as God gives us to see the right, I definitely got a question from the editor of like, I don't understand. I was like, oh, you're not obsessed with going to the Lincoln Memorial like I am and reading the second inaugural. Yeah, exactly. Exactly. I mean, to this day, if you're going to list the top five, if you're going to list the top five, gosh, top three pieces of political rhetoric ever uttered, Lincoln's second inaugural. Number one.

Oh my gosh. It's better than Gettysburg on a lot of different levels. Oh yeah, yeah. No, I think, yeah, I agree. Absolutely, number one, it's incredible. It's amazing. But yeah, I think, yeah, I agree. Absolutely. Number one, it's incredible. It's amazing. But yeah, you know, I think I love that. I love that closing.

I love that closing. And the interesting thing about it is, you know, Justice Kennedy actually included some rhetoric of deep respect for disagreement in the Obergefell decision. And I actually included that rhetoric. I just filed, I just got proof of filing while we were on the podcast, proof of filing. I filed an amicus brief in the 303 Creative case. Oh, yes.

And on behalf of 15 family policy councils in the 303 Creative case, for those who don't remember, this is a case out of Colorado where a woman has a graphic design company, a web design company. And the 10th Circuit said, yeah, if you have a web design company,

you're engaged in, quote, pure speech. But even though you're an artist engaged in pure speech, you can still be required to produce art you disagree with. In this case, for example, one of the reasons for the challenge of Colorado law was the artist doesn't want to design websites for same-sex weddings. And this was the famous monopoly of one case, that if you're an artist, you're a monopoly

because nobody else can sell your art but you, which would essentially leave artists in a position of having fewer First Amendment rights than non-artists. A very kind of interesting kind of decision. And one of the things, the focus of my brief was how utterly inconsistent this is with Barnett, which is West Virginia v. Barnett. This is the famous case where Jehovah's Witnesses refused to salute the flag and deliver a pledge to the flag during World War II. And one of the points that I made was relying on Justice Kennedy, that not only is this inconsistent with Barnett, this is inconsistent with Barnett on a matter where this court, in the majority opinion on Obergefell, said there are people of goodwill on all sides here. There are people of goodwill who oppose same-sex marriage, and there are people

of goodwill who support same-sex marriage, and this is a matter of intense conversation and controversy. And Justice Kennedy went out of his way to show respect for the other side. And that has, by going out of his way to show respect for the other side, that has had knock-on ramifications ever since. And it's not just respect for the other side. It's humility for your own moment. That's what the Harlan dissent to me is all about.

Is you just, you might be in the seven today, man, but Justice Harlan was right and all seven of you were wrong. So don't look around and say like, well, yeah, but like everyone agrees with me. That's not how this works and it's not how history works and it's not how justice works.

So, yeah. All right. Well, we will be back next Tuesday. So remember again, Tuesday and Thursday morning, bright and early, our podcast is going to drop under a new revised dispatch podcast schedule. So again, Tuesday and Thursday. So we'll be back next Tuesday. And we'll try to be better about telling you guys when we're going to take a day off or something like with Memorial Day, we had some people who thought we'd record on Tuesday, but we actually decided to take a real holiday because if you take Monday off, but then all that means is that you pack in Monday's work to Tuesday,

it's worse. I'd rather not take Monday off. Yeah, I totally agree. You don't take Monday off so that you double up your work on Tuesday. Right? No. Yeah, absolutely. All right. Well, we'll be back Tuesday. Until then, please rate us where you get podcasts. Please subscribe where you listen to podcasts.

And please check out thedispatch.com. Thank you.