Advisory Opinions - Supreme Court Rules in Malicious Prosecution Case

Episode Date: April 8, 2022

David and Sarah talk about a fascinating Supreme Court case that no one is discussing, unleash again on Yale Law School, and then spend the last few minutes on Sarah’s game show idea—a revolutionary combination of social science and dating advice. Plus, book recommendations!   Show Notes: -Louisiana v. American Rivers -Thompson v. Clark -“Rethinking Sex: A Provocation” by Christine Emba -David in The Atlantic: “Consent Was Never Enough” -Christine Emba: “Consent is not enough. We need a new sexual ethic.” -“Powers and Thrones: A New History of the Middle Ages” by Dan Jones Learn more about your ad choices. Visit megaphone.fm/adchoices

Sasquatch here. You know, I get a lot of attention wherever I go. Hey Sasquatch, over here! So, when I need a judgment-free zone, I go to Planet Fitness. Get started for $1 down and then only $15 a month. Offer ends April 12th. $49 annual fee applies. See Home Club for details. You ready? I was born ready. Welcome to the Advisory Opinions Podcast. David French with Sarah Isger.

We've got a lot to cover, but Sarah, why don't we start with the most important thing, a bit of congratulations, not a bit of, a big congratulations to two Advisory Opinions listeners. Yes. So if for longtime listeners, you'll remember that at the beginning of this podcast, I was cooking a brisket as my husband was working on smoking meats. I was working on gestating a baby. And so two of our listeners have been

cooking their own pork shoulder. The pork shoulder has finally arrived and they named him Harlan after the one and only Justice Harlan, who we've covered extensively on this podcast. So congratulations to the parents, but welcome Harlan, our now youngest AO listener. I am sure you will be listening to this podcast more than you think for those long walks, late nights. We're going to try to put out as much content as we can for your parents so that they have something to do in those middle of the night feedings. And for those who don't remember that podcast, we had a fantastic podcast about Justice Harlan. What was the name of the book? The Great Dissenter?

The Great Dissenter, yeah, by Peter Kanellis. Yes, yes. And it's such a great name because the emphasis of the book was, here was a man who made the difficult stands, standing against the currents and the tides of the times. And so that's a fantastic name when, quite frankly, it's increasingly clear that good folks often have to stand against the tides of the times. So that's a tremendous name. Congratulations.

Wonderful news. And now on to the Supreme Court. So we're going to talk about the Supreme Court. We're going to talk about Yale again. I promise you this is not going to be a Yale-themed podcast for the entirety of its run, but just a little longer. Book bans. And we're going to end with a little bit of personal advice if we've got time. So David, we had two things coming out of the Supreme Court this week. One, a decision on malicious prosecution, the Fourth Amendment, and a majority opinion and a dissenting opinion,

ne'er the twain shall meet. Totally different conversations happening. And it was a 6-3 opinion, six in the majority, three in the dissent. And yep, it was 3-3-3, man, because the three in the dissent were Alito, Gorsuch, and Thomas. But before we get to that, we had a little shadow docket drama. So in this case, it was an Environmental Protection Agency case about Clean Water Act. The details of the case aren't particularly important or all that interesting, actually. Details of the case aren't particularly important or all that interesting, actually. But the five justices granted a stay in the case, four justices dissenting, K about with the Thomas Jefferson case earlier in the week and the disagreement between what is a reparable injury?

Who is a reparable injury? What is the likelihood of success in the merits? What matters if those two are in conflict? And lo and behold, Justice Kagan having that exact conversation with her colleagues on the court saying that stays should be granted quote only in extraordinary circumstances and upon the weightiest considerations as in you need to meet all of this it has to be likelihood of success on the merits sure but that just gets you in the door then you have to have irreparable injury not just injury not this isn't great irreparable injury, not just injury, not this isn't great, irreparable, high, high standard. And her point is that what's begun happening in the emergency docket cases at the Supreme Court,

but I would argue at all of the courts now at this point, including the circuit courts and even sometimes the district courts, everyone's just making kind of their best guess on the likelihood of success on the merits, meaning what they think of the merits, but without briefing, without oral argument. And in fact, the irreparable injury standard is just, can you show any injury? And so Justice Kagan says, by nonetheless granting relief, the court goes astray. It provides a stay pending appeal and thus signals its views of the merits, even though the applicants have failed to make the irreparable harm showing we have traditionally required. That renders the court's emergency docket not for emergencies at all. The docket becomes only another place for merits determinations, except made without full

briefing and argument. I respectfully dissent. But David, OK, so I actually think she has a good point here. The way to avoid this sort of back and forth that we saw with the Thomas Jefferson case that we're seeing in the criticisms of the shadow docket are to make sure that all of the prongs are really, really met and only in extraordinary circumstances, not just how you think the case will turn out eventually. The problem is I think everyone thinks they're applying that standard. And yet here we are, A. B, I noticed that Justice Kagan and everyone, for that matter, seems to only criticize the emergency docket when it comes out a certain way. And in this case, of course, this is a Clean Water Act case pitting conservative states against sort of the liberal Biden administration. And the stay benefits the conservative movements for the stay. But for instance, David, I didn't hear a lot of criticism from Justice Kagan or liberals who generally criticize the shadow docket in the case that we just saw about

the Navy SEALs and the vaccine mandate? Was there an irreparable injury to letting people who couldn't have gotten vaccinated for the first year of the pandemic? Again, I understand the argument that there was irreparable injury, but the states think they have irreparable injury here too. Irreparable injury is kind of turned into, can you go back in time and fix it? As in, if it's monetary damages, it's not irreparable. But if it's anything other than monetary, it is literally irreparable, as in you don't get that time back. And, you know, we don't have time machines.

But that's not what Kagan thinks irreparable should mean. Fine. But then you have to then criticize. Liberal commentators have to criticize the shadow docket, even when it comes out the way that they like, which I haven't seen. And then irreparable needs to mean that in all cases, which I also haven't seen. Right. Now, when I was litigating, there were kind of two standards for injunctions. In constitutional cases, because of Elrod B. Burns, the deprivation of a constitutional right was by definition irreparable. Okay, so if I'm having my free speech rights violated, that was the easiest prong. My paragraph

or my section of the brief on irreparable injury was short. But then anything outside of the constitutional realm, I had to do work. I had to do work to say that it was irreparable. Because as you were saying, it didn't mean ain't great. The standard wasn't likelihood of success on the merits, ain't great, balance of the equities. And it feels like we're moving more towards the ain't great if you have the likelihood of success on the merits or you determine early on that you have the likelihood of success on the merits or you determine early on that you have the likelihood of success on the merits. So in that sense, I agree with you wholeheartedly on both of your big points. One, come on, we have to really define irreparable harm in a meaningful way

outside of the constitutional rights context. And then number two, you know, got to be mad both directions. Got to be mad both directions. And I kind of get the feeling, honestly, that that's where Kavanaugh is on the emergency docket. He doesn't like it so much. No. And he doesn't like it so much. So I feel like there's this consistent Kavanaugh presence. That's not a big fan,

not a big fan of the emergency docket. Um, really wants to get back more to regular order and, and to, but, and to be pretty clear about it, this emergency docket stuff, it's really pretty new and substantial ways because back when I,

again, when I was practicing, not to do the in my day kind of, you know, conversation, but in my day, once you lost at the court of appeals and you sought on and you move for en banc, you know, you move for an en banc hearing, you knew and you were going to file a cert petition, even on an appeal from a grant or rejection of a preliminary injunction, you knew, boom, you were right into regular order. You were,

everything slowed down. It was not the rocket docket anymore. And that's the way it was. That's the way it was. There was no real sense that, oh, I can get this hard quickly at the Supreme Court. But now if it's if it sort of meets this sort of in a kind of hazy threshold of we think it's important enough. Then everything happens rapidly. And and to be clear, there are some cases that are that important. There are. I mean, arguably the vaccine mandate case again again, husband of the pod argued it, so I have maybe some bias there. But when you're affecting hundreds of millions of workers in the

country, we just need to move on that. In the middle of a pandemic. Yeah, let's just do that. But here, if you give a mouse a cookie, all the other mice also want cookies. Yeah, yeah, exactly. And look, I just think that the justices would be Yeah, exactly. And look, I just think that the justices would be wise instead of having these little like short missives of crankiness. Let's lay out what irreparable injury means then, because obviously the lower courts need that guidance as well, because both parties in the Thomas Jefferson case, as we covered, claimed irreparable injury. And it was, I would argue, irreparable to either side. It's irreparable to the school in that they didn't know how they would possibly put together admissions criteria for students that had already applied. They couldn't get it done in time. But then the other side claimed, yeah, but our constitutional rights are being violated. You're violating the Equal Protection Clause. And so that by itself is an irreparable injury. We need guidance. Yeah, irreparable injury is not inconvenience. Even extreme inconvenience, by the way. Right, exactly. It's not inconvenience that won't be compensated for by money.

That's not irreparable harm. So yeah, yeah, absolutely. Okay. Well, that brings us to the next case, Thompson v. Clark. Super interesting case. First of all, just the name is a case that I had the exact same case name when I was a clerk, and it was the largest case that we worked on. It went on bonk, et cetera. So weird case name for me. But this case is quite different. So weird case name for me. But this case is quite different. So let me set up the facts for you, David. Mr. Thompson is a new dad.

He has a two-week-old. And his sister, who happens to have a mental illness, is staying with him at the time and calls 911 and says that Thompson is abusing the baby. So immediately authorities come over and Thompson refuses to let them in. Understandably, he has a two week old baby. If that baby, if my baby was asleep at two weeks old, you're not getting in the house. That's a big no from me. So they come back with police. Thompson, again, refuses entry. The police enter regardless. He says, you have to have a warrant. Come back with a warrant.

Yeah. Which they don't, actually, as it turns out. If they believe that a child is an imminent danger in the house and they have probable cause to believe that, they can enter the house. So they do. A scuffle ensues. The baby is taken to the hospital. Mr. Thompson is arrested and prosecuted for, you know, sort of minor stuff related to resisting arrest, et cetera. Turns out the baby had diaper rash at most, which is what all babies have at two weeks old.

Because it's not the stuff isn't used to coming out that way, David. That's not the way that waste exits in utero, I don't think. We'll let listeners tell us how all that works. It's amazing how little actually sometimes I even know about how my own body works. Okay, so he brings a few lawsuits. The charges are dropped, by the way. He's not ever tried. There's no statement as to why the charges are dropped.

They're just dropped. So he brings a Fourth Amendment claim for false arrest. And for our purposes, let's just put them all under the false arrest bucket here. And then he brings another Fourth Amendment-ish claim for malicious prosecution. And under malicious prosecution, you have to show a favorable termination to the charges that were brought, to the legal process that you're saying was malicious. And so the majority opinion is all about what is favorable termination. Do you have to have an actual finding of innocence, as in you went to trial and you were acquitted, or the prosecutor put out some statement of

apology, like, oh, it turns out we found new evidence and we shouldn't, oh, our bad. And then you can sue, or is simply not conviction a favorable termination. The dissent, David, is about something totally different. Totally different. Congress in 1871 that allows you to sue the government, sue states for a violation of your federal civil rights, basically, federal constitutional rights or federal law, and receive money damages. Well, malicious prosecution isn't in the Fourth Amendment. It's a common law tort. And so the dissent is all about, wait, why are we recognizing malicious prosecution under 1983 when in fact it's a common law tort that you

can either sue under state law or you can make a Fourth Amendment claim, a real Fourth Amendment claim, but then it needs to be under the Fourth Amendment, which says unreasonable search or seizure. There's nothing about favorable termination, nothing about maliciousness, which would involve some mens rea element, meaning some guilty mind, purposefulness, willfulness, and the whole thing. So David, it's fascinating because frankly, both conversations, though again, largely unrelated to one another, are really, really interesting. Which one do you want to start with? I want to start with a side issue.

Oh, even better. A third issue. Well, this is a, pronounce this word, C-H-I-M-E-R-A. C-H-I-M-E-R-A. Chimera. Okay. All right. I just, right before we started our podcast,

I listened to a YouTube on how to pronounce it because... David, you weren't nearly nerdy enough in junior high because you were off doing Dungeons and Dragons while I was reading Edith Hamilton's Greek mythology and became super obsessed with classical Greek life. Well, I don't want to repeat a Belknap gate. Oh, that's a deep pull there, David. That's a deep pull from advisory opinions. One of the three or four most controversial

things that ever happened was my mispronunciation of the name Belknap as Belknap, applying both to a long-deceased American politician and a heavily damaged U.S. guided missile cruiser. But so, too, I've been trying to avoid Belknapgate ever since. So according to YouTube, with an English accent, so this might be the English pronunciation, it's Chimera. Oh, that's interesting.

I mean, no, I reject that. It's clearly Chimera. You reject that. interesting. I mean, no, I reject that. It's clearly chimera. You reject that. And you know how I know, because not only is that just how I personally have pronounced it my whole life, but also I believe that when Mission Impossible came back with Tom Cruise in the 90s, I don't know whether it was Mission Impossible 1, 2, one of the early Mission Impossible with Tom Cruise centers around a chemical weapon called a chimera. Oh, interesting. Well, this person had an English accent on YouTube, so they're probably correct. And Mission Impossible, though, is the American James Bond.

And so I think that's the American pronunciation. Oh, gotcha. Okay, well, then that says, let's talk about the descent first yes okay because it begins with this paragraph and it's justice alito writing homer described the mythical chimera as a grim monster made of all lion in front all snake behind all goat between the iliad page 201. Today, the court creates a chimera of constitution of a constitutional tort by stitching together elements taken from two very different claims, a fourth amendment,

unreasonable seizure claim, and a common law malicious prosecution claim. Sarah, that is how you begin a dissent. And as you keep saying chimera, it does sound nice. I'm now kind of coming around to it. It does.

I know. I know. Absolutely. Yeah. So he makes like these fascinating and to me, very persuasive arguments. Were you persuaded, David?

I'm still thinking it through, but I'm 90% there. I'm 90% there. And his basic argument is, hey, majority, there isn't a constitutional malicious prosecution tort at all. It doesn't exist. There's just an unreasonable seizure claim. Here are the elements of malicious prosecution. One, the suit or proceeding was instituted without

any probable cause. Two, the motive in instituting the suit was malicious, sort of circular there. Three, the prosecution terminated in the acquittal or discharge of the accused. Here are the elements of a Fourth Amendment claim based on unreasonable seizure. One, there's a seizure, an arrest or some use of physical force or show of authority that restrains liberty. By the way, tons of cases on what a seizure is. So we have that pretty well laid out over time. Two, the seizure must have been unreasonable, which means in the case of a full-blown arrest, that the officers making the arrest must have lacked probable cause.

But, and this is, I think, the part where Alito really shines, both in his writing and in his mental capacity, if you will, a comparison of the elements of the malicious prosecution tort with the elements of the Fourth Amendment show there is no overlap. That is, a plaintiff suing for unreasonable seizure need not prove any of the elements of common law malicious prosecution and vice versa. So he says, start with the elements of unreasonable seizure. Such a claim does not require proof that there was a prosecution, that there was a criminal proceeding at all. It's just about the seizure itself. Unreasonable seizure also does not require malice, no mental state required. Although David,

of course, that gets into qualified immunity and whether there is like we've basically built in the malice showing for Fourth Amendment unreasonable seizure claims through that and backdoor. And I think we have. And again, husband of the pod wrote a great law review article on the 1871 understanding of the mental state that might have been required. But I get off on a tangent there. And then lastly, Alito says the unreasonable seizure claim is not dependent on the outcome of any prosecution, obviously. Now, vice versa. The tort of malicious prosecution does not require a seizure. You could simply get a summons, David, for a legal process that you need to show up to, and that's not a seizure. Two, a malicious prosecution claim, since it doesn't require a seizure, it obviously

does not require proof that the person bringing the suit was seized without probable cause. The claim does demand proof that the person bringing suit was was seized without probable cause. The claim does demand proof that the person bringing suit was prosecuted without probable cause. But that's, of course, different. And he goes on to give examples of the types of cases that would sort of fall under each but not under both. And this is the part that I found particularly persuasive, the new chimera that the court has created actually is very confusing because it seems to, as was the case here, by the way, that they had probable cause for the arrest, but not probable cause for the initiation of the legal proceeding. So I found the Alito part pretty persuasive. It just has nothing to do with what the majority was talking about, because they already assume that malicious prosecution

is a Fourth Amendment violation. That was what was so fascinating, because if you read the majority opinion, and basically what the majority opinion is saying is that, look, you just have to be successful in your defense of the prosecution, which makes all the sense in the world because our system of criminal justice does not adjudicate guilt or innocence. And this is something that a lot of people, I think, miss is that if you are, if a jury says, a jury says not guilty or guilty, it doesn't say guilty or innocent. And that's a very important distinction. Not guilty just means the prosecution didn't bear its burden of proof. And then there's no process by which you can sort of go back and say, but no, really tell us how much and how big of a whiff did the prosecution have? So if you're going to have a malicious prosecution cause of action that

depends on the ability to sort of say they didn't, they went way beyond some sort of court adjudication or some sort of formal proceeding that says, no, you are actually innocent. Well, no such procedure really exists. So it would just gut malicious prosecution entirely. So I'm reading the majority opinion and I'm nodding along. Of course, this is common sense. Are you kidding me? What on earth is Alito going to say to this? And then, oh, he doesn't even think the cause of action exists. What? Oh, he might be right.

I know. I know. It was a fun case to read start to finish in that sense. It's like the twist at the end of a movie, like Memento or something. I don't know. That was a deep pull, by the way, like 1997 random mention. So as Alito says, so these are now the appear to be the elements of the Fourth Amendment claim of malicious prosecution. The defendant initiated charges against the plaintiff in a way that was wrongful and without probable cause. Two, the malicious prosecution resulted in a seizure of the plaintiff. And three, the prosecution must not have ended in a conviction. And as he notes,

this is not the Fourth Amendment claim, the elements of a Fourth Amendment claim. It's also not the elements of the common law tort of malicious prosecution. So we're now calling something malicious, Fourth Amendment malicious prosecution that is like, you know, remember coffee talk on Saturday Night Live? Chicken fried steak, neither chicken nor steak, discuss. Fourth Amendment malicious prosecution, neither fourth amendment nor malicious prosecution discuss. Uh, and he says, it's not clear why this tort requires both a seizure and a prosecution, uh, where the person bringing suit under 1983 is arrested and then prosecuted. It's not clear whether both the arrest and the prosecution must have been done without probable cause and without

a legitimate law enforcement purpose. Third, and most important, it's not clear what the court means when it says that, quote, the gravamen of the claim is wrongful initiation of charges without probable cause. Since the court refers repeatedly to malicious prosecution, one might think this requires a guilty mental state. But in a footnote, the court raises the possibility that the constitutional tort it recognizes may require nothing more than the absence of probable cause. If that turns out to be so, it is hard to see even the slightest connection between the court's new tort and common law malicious prosecution. So let me ask you this.

All right, so here's where I'm 91.3% and I'm moving towards 100% persuaded, but I have a question. Yeah. All right, let's take this situation. I think that there was no unreasonable seizure. Correct. Initially.

And in fact, the jury found that. So he brought the claim for false arrest. He lost that. Right. If you get a call that there is ongoing child sex abuse and the guy is blocking your way, police way, into seeing whether a baby is OK, sorry, you can't do that. OK, so there was. And remember, we had that case last term on community caretaking and when the police can go in in such a circumstance. This was like a big thing that the Supreme Court actually just recently touched upon separate from probable cause. Right. So I know that that was not unreasonable seizure at that moment. Now, here's the next

question. I agree with you that sort of receiving notice that in the mail that you're subject to prosecution or that charges have been filed is not a seizure by any reasonable measure. But what if you are then summoned to show up and you have to show up at court to defend yourself? So there's a second phase. One is you're handcuffed. You're unquestionably seized then. And then phase two, seizure number two is seizure number two when you have to show up at court and defend yourself from what you believe to be a completely malicious, frivolous prosecution. I believe that under our current Fourth Amendment law, that is not considered a deprivation of your liberty.

And so, but David, I have a different problem. OK, so we have the common law tort claim at the state level, which Alito says like, look, either bring a traditional Fourth Amendment claim or feel free to sue at the state level and the state that this was in, it appeared to Alito, probably had a malicious prosecution tort.

So you could have brought it that way. That's the other thing. It's not that this is the only way to get at this issue. That's right, but it's the only way to get at this issue. Right. That's right. But it's the best way, unquestionably. OK, but. In order to agree with Alito, you have to then say that at no point was Mr. Thompson's

constitutional Fourth Amendment rights violated. So go the other direction. Alito is starting with malicious prosecution and explaining why that doesn't fit into the Fourth Amendment rights violated. So go the other direction. Alito is starting with malicious prosecution and explaining why that doesn't fit into the Fourth Amendment. I agree. But now start with what happened to Mr. Thompson and say that his constitutional rights weren't violated either under the due process clause or under the unreasonable search and seizure clause. And that's where actually I'm not so sure. Again, I agree that the malicious prosecution elements and what the court, the chimera that has been created is bizarre in part because especially the favorable termination,

that ain't nowhere in the fourth amendment. So that makes no sense. It's simply a rule of convenience because we don't want simultaneous civil and criminal cases moving where you could like basically collaterally challenge your criminal case by bringing a civil malicious prosecution case. Great. That's why that that element exists. But again, it's not in the Fourth Amendment. Great. Um, but at the point that they know it's diaper rash and move forward with a prosecution because they didn't like the fact that he didn't let them in their house, in his house, um, that to me does seem like a due process fourth amendment violation. It's just not a malicious prosecution common law tort one. And so I am skeptical of the idea that he doesn't have

some other wrongful bringing of legal process. So if we think of false arrest as being the unreasonable, the seizure of someone without probable cause, then I think the fourth amendment also has a unreasonable bringing of legal process without probable cause. And it would just have the same elements, really, as the false arrest. It would just be about legal process. I don't know why we're not doing that. And I think that Alito might come along with that idea. He hints that he might.

And David, what's fascinating about this, of course, is when we think of the 3-3-3 court and particularly the 6-3 decisions, we often think of them as coming down along some sort of current partisan culture battle line, proving that the court is actually just a political body dressing itself in the fancy robes of legal philosophy. But this is now going to be my go-to example of how you end up with the exact same lineup, 3-3-3, 6-3, with the three non-institutional most conservative on something that doesn't fall along any partisan line whatsoever, in my view. It's simply about extreme textualism and originalism in the Fourth Amendment, including from Gorsuch, remember, who is like friend of the criminal when it comes to criminal process, because he wants to very strictly and under read criminal law, but that means he's going to very strictly and under read, if you will, the Fourth Amendment as well. Right. Now, yeah, I think that's extremely well explained.

And your due process discussion, I think it should have been fleshed out more. I'm frustrated by footnote two, Sarah. I'm frustrated by footnote two because I thought Alito's argument was so compelling on the Fourth Amendment. So footnote two says, because this claim is housed in the Fourth Amendment, the plaintiff also has to prove that the malicious prosecution resulted in a seizure of the plaintiff. It has been argued that the due process clause could be an appropriate and analytical home for a malicious prosecution claim under Section 1983. If so, the plaintiff presumably would not have to prove that he was seized as a result of the malicious prosecution. But we have no occasion to consider such an argument here. Yes, you do. You do have an occasion because you just had a really compelling dissent filed that says

you don't even have a Fourth Amendment malicious prosecution claim at all. And it would have been interesting to see that fleshed out more. I know this isn't hot button topic number one or two or three or 57 in our politics right now, but I just found this case absolutely fascinating. And by golly, that opening paragraph, that dissent. I'm curious to see where our commenters, and remember, you have to be a member of the dispatch, $10 a month to be a commenter on advisory opinions. I'm very interested to see though,

our commenters tend to be professors at universities and other people who are nerds when it comes to Greek mythology? We'll see where they come down on the chimera versus chimera. Chimera. Chimera sounds ominous.

I think chimera is the British pronunciation. I think it's just the over, the sound that their vowels make versus ours okay chimera i mean it's so it's so chimera chimera that's not intimidating but i thought you were going to be were you at all thinking it was chimera or chimera i refuse to answer that yeah okay on the ground that it might incriminate me. That's where I thought this was going, and I was like, it's definitely not.

Cha. I mean, you know, who thinks it's cha? Who thinks it's cha? That's crazy. No, it's insane. Okay. All right, David, Yale time. So we have some sources at Yale.

We've got the best sources. Yeah. All right. So after Dean Gerken put out her statement that was like, there was no violation of the university's free speech policy here. And also I took so long to put out a statement

because you can't make me, and this is simply the Twitter and conservative media finger wagging that they always do. But also it was unacceptable and it can't happen again. Is that a fair summary? That's completely fair. Yeah.

Okay. So Professor Stith, who, by the way, I mispronounced her name last time, and I was corrected that it rhymes with with. So Professor Stith. Or Sith. Or Sith. Or Sith. Right. Sure.

But with a T. So she was the professor who was in the room. She was like the sponsoring professor, if you will-free speech and the sort of 1960s version of free speech that we used to believe in, a professor at Yale Law School. She writes a response to the tenured faculty at Yale Law School. This is an important moment. Any formal determination that the March protest at Yale Law School did not violate Yale's policy on free speech would set a terrible precedent at Yale and elsewhere. I commend Dean Gerken for supporting Yale's policy. I here explain why, in my judgment, that policy was clearly violated by the deliberate and extensive disruptions of a Federalist Society event in room 127 on March 10th, as well as by disruptions of other events taking place in classrooms off the main hallway. Now she breaks this up in true law school student note fashion, and I so appreciate it. Actually, if you are a law student, you should go read this because when your professors talk to you about how they want your final exams to look, facts, law, applying law

to facts, and analysis, This is what they mean. This is how you should write your law school exam. Facts. The hallway disruption was far more than excessively noisy. Then she goes through the audio tape, yelling, stomping, powerful chanting, and wall banging. Students and faculty have also reported serious disruption of faculty meetings and two classes that were being conducted in other classrooms. These recordings would also reveal the extent of interference. Law. It is critical to understand that Yale's free expression policy does not only prohibit disruption that successfully shuts down an event or class, rather Yale's policy prohibits disrupting an event, including interfering with speakers' ability to be heard and of community members to listen.

She's quoting there the actual Yale free speech policy, not the three strikes rule that Dean Gerken cited that no one can find. Applying facts to law. There is no doubt that the event in room 127 was significantly disrupted. The audio tape posted by FIRE establishes that the noisy noise seriously interfered with our efforts to hear and to speak. Analysis. Limiting Yale's policy to prohibit only shutting down events would make no sense. Whether speakers persevere depends in part on how difficult it would be to move the event to a different platform, place, or day. Even more importantly, whether to shut down an event depends on the speakers and audience members' personalities, hearing abilities, and preferences as to which is worse, giving in and stopping the event, or continuing in hard-to-speak, hard-to-hear, and uncomfortable

circumstances. As it happens, events on March 10th were shut down by the remarkably loud and multi-source hallway noise. She's referring, of course, to that faculty meeting that got moved to Zoom. And then freedom of speech for all, she says. The Room 127 event had two speakers, one from the left, one from the right. The topic was First Amendment freedom of speech. The two panelists, who would disagree on much else, had joined together in the Supreme Court, both arguing that the state of Georgia had violated the First Amendment at a public college. They won 8-1. Disrupting that panel was especially ironic. As a former prosecutor, I know well that not every violation has to be an occasion for sanction. In my judgment, we should use this moment as an opportunity to educate our students. That said, we cannot make the most of this opportunity unless we recognize

that a blatant violation of Yale's free expression policy occurred on March 10th. David, a few notes professor stith was lit up on the board so yale has like a list serve email-y thing that they call the board i guess and that anyone can kind of post on lit up uh this was not supported by students although interestingly the yale daily news when they wrote it up, was far more sympathetic to free speech than perhaps they had been right after the event when they wrote up, you know, the sort of the protesters version of events. But, David, there's been other drama. More drama. There is. It is an endless well. It's the fountain of drama, isn't it, over there?

My gosh. Okay, tell us about more drama. So remember in Professor and Dean Gerken's initial letter, she said that they were going to have these listening sessions. And so immediately, the Federalist Society students were like, wait, we asked to meet with you right after this happened, and you said that your schedule was full for the next month, and no meeting has still been scheduled as of the time of at least her letter. But it turned

out then there was a meeting scheduled with, quote, open letter organizers, which, of course, were only the members of the left. And in fact, Federalist Society students were not going to be allowed at that meeting. But now the administration is denying that they're going to have that meeting. But the Graduate and Professional Student Senate says that they are going to have that meeting. And so there's confusion. And David, another listener has noted that this has happened at Yale before. Federalist Society events have been shut down by student protesters, including ADF events shut down by student protesters at Yale. And the result that time, which might give you some indication of why this time, why Professor Stith is hanging out lonely. why this time, why Professor Stith is hanging out lonely. Last time this happened, which I think was three years ago, Yale, in fact, Dean Gerken put out a policy saying that students who went to

spend their summers working for an organization that discriminated against LGBT people would not receive the funding that every other student would get who went to go work at a non-profit institution. So basically gave the protesters exactly what they wanted, except as it turns out, the protesters were never told that later on there was an addendum added to that. Addendum, except where the First Amendment requires otherwise because they would be discriminating on the basis of religious belief. Which meant, by the way, that students still would get paid the same as the other students who went to go work for ADF over the summer.

I hope that there are some liberal Yale students listening to this who now realize that they were had back three years ago. But that more to the point that Yale realizes that giving in to the students three years ago and giving them what they wanted did not then create a free speech mecca on campus. All it did was say, if you shut down the event, the administration is sympathetic enough to you that they will simply agree to what your demands are. So I think probably the liberal students feel that this is a little unfair that they're being targeted right now, when in fact, in the past, they've done the same thing without repercussion, and in fact, positive reinforcement. And the administration's probably feeling a bit burned because when this happened three years ago, they did what was asked of them, and yet it's still going on. Three words come to mind. Pitiful. Okay.

This is pitiful. It's absolutely pitiful. Good on Professor Stith. And you know what is interesting about this? Okay. So she got lit up on the board. I'm sure that's keeping her up at night. You know, what we need is a few more people who are willing to be lit up on the board. I'm sure that's keeping her up at night. You know, what we need is a few more people who are willing to be lit up on the board or dragged on Twitter or whatever happens when people get really upset at you and are essentially hurling invective rather than engaging in reasoned argument. I mean, there's something like that going on online right now

about the Florida HB 1557, the Parental Rights and Education Act, where anybody who's saying, hey, I think this law is too broad. I think this law is too vague. They're being called a groomer. You're a groomer because you think the law is too broad or you're too vague.

We have a culture of dragging when someone dissents from the zeitgeist of whatever movement you belong to. And you know what? We just need more people willing to be dragged. So good on Professor Stith. I'm sure the board is not keeping her up at night. But you know what? The board obviously keeps some other people up at night

or they behave like responsible adults. Don't read the board. If the board is going to keep you up at night, don't read the board. Do the right thing. And you know what? The students aren't going to go anywhere. They are not going to say,

you know what? I'm going to abandon this Yale law education and head out elsewhere. And if they do, you know what, you're going to be able to choose between, I don't know, 500 other similarly qualified people who would covet the Yale law education. Show some backbone here. It's really remarkable to me, the level of just abject surrender to fit pitching by adults, by adults, Sarah. And I know, you know, I'm going to draw the same distinction I did when we discussed this a couple of weeks ago. And I'm sorry if I get ranty about this, but

man, okay. If it's a 16 yearyear-old and the 16-year-old is really just first getting involved in learning about current events and public discourse, and they start dragging you on the board of Yale High School and trying to disrupt your event, you pull them aside and say, this is not how it's done. These are, what, minimum 23, 22, 23 years old. Some of the most credentialed, educated young people in the entire world. Okay? We're past the time where you just sit there and say, Johnny, you know, that's not the way you act.

You know, it's, Johnny, be an adult. Be an adult. And be the adult you're supposed to be right now. So good for Professor Smith. Good for Professor Smith. I do want to dunk on the Yale administration just a little bit further about these meetings that they're holding. Because the only Yale Law School's elected student representatives got to meet with Dean of Student Affairs, Ellen Cosgrove. And here were the items on the agenda. Yale Law School's elected student representatives got to meet with Dean of Student Affairs Ellen Cosgrove, and here were the items on the agenda. The presence of police at the protests,

the decision to have armed police rather than unarmed security, and the circumstances around the presence of plainclothes officers in the law school buildings. The university's free speech policy is a university policy and discussions about that would be appropriately directed to graduate professional student senate so to be clear uh federalist society members were not invited to that event to that meeting about when security would be provided for events which events need security at yale law school not not the events for the progressive students nobody has challenged any of those events, tried to shut them down,

threatened any of their speakers. And so you're not allowing the members of the student group who are the only ones so far that have needed security at their events to be there to discuss when security, when they will be allowed to have security for their speakers who are the ones,

remember, being called the B word, being yelled at, screamed at, physically blocked from leaving the building. But nope, they weren't allowed to be in that meeting. Okay, next up. Well, that argument is this. This is their argument. Don't intimidate us while we're trying to intimidate other people.

That's right. That is exactly what their argument is. Next up was then this meeting of the Graduate and Professional Student Senate. That's right. That is exactly what the argument is. and inclusion things on the Senate. Once again, Federalist Society members who organized the panel were not included in the meeting. Here's the quote from the president of the Federalist Society. Obviously, I believe representatives of my chapter deserve a seat at the table when this discussion takes place, particularly if the letter writers are invited. I would welcome the opportunity to respectfully discuss these issues with university administrators and my fellow students, but no. Yeah. I mean, look, the bottom line is that, I'll say it again, the same scared of students.

I'll say it again, the same scared of students. I mean, this is literally what's happening. I mean, it's getting that simple because there isn't any underlying principle here. Because if there's some sort of neutral deference to students' sense of insecurity or fear of being intimidated, you'd be meeting with the Federalist Society tootsweet right away.

I mean, absolutely. Because you would be in the middle of a, you know, you're dealing with students' fears and concerns. And if you're neutral about students' fears and concerns, regardless of the source of those fears or concerns, you'd be meeting with them right away. You would be dealing with their very serious fears that they have. And you're not doing that. You're not doing that. You're picking and choosing. And so it's not just, and also, by the way,

if these students weren't pitching a fit, I don't think that the dean would be reaching out specifically like this, wouldn't be so solicitous. This is completely in response to temper tantrums and in fear of the people pitching the temper tantrums. And the Federalist Society could pitch a temper tantrum if it wanted, and that wouldn't matter because they're not afraid of the Federalist Society.

Well, in fact, we kind of know that's how it would go since, in fact, the Federalist Society asked to meet with her directly after this happened. And at least as of last week, she still had not met with them. So yeah, the Federalist Society throwing a fit doesn't do any good because there's no sympathy for them. 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

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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. So Sarah, we had, I don't know, do we describe the reason for the discussion we just had? Sometimes after the podcast, you and I like to spend a few minutes after we've stopped recording giving legendary producer Caleb dating advice.

Which he values immensely. Hugely. I mean, he follows all of our advice and the wisdom that we hand down to him from the mount. So much so that you and I have joked that perhaps we should have a separate podcast that is just dating advice from Sarah and David

that would only be listened to by legendary producer Caleb because we would force him to. But anyway, David, this was not actually really dating advice to Caleb, but it came up in the context of our conversation with him that I would like to have a longitudinal

study. Almost like a reality TV show, but it'd be a boring reality TV show because you would need to make it like a 15-year reality TV show. Right. And it would go like this. We would have our control group. They date however they want to date the way they currently date. But in the treatment group, at date number six, they have to decide whether to get married or not. So six dates to me, you can space those dates out however you want.

If you want to do six dates in two weeks, I mean, okay. Or you can space them out to three months. But the point being that I think after six dates, look, if you want to make it 10, that's fine. I'll make it 10 dates just to make this easy. 10 dates just to make this easy. After 10 dates, you actually have a better idea of whether the person across from you would make the right partner for you in marriage and all the things that marriage includes versus two years of dating, in which case you've grown attached to the person, but not necessarily in love with them in the way that

you would recognize. It's the inertia problem, right? After 10 dates, you have all the information, but none of the inertia. After two years, you have the information, but now it's been clouded by maybe too much information, frankly, and a lot of inertia. And I don't just mean people who live together. I just mean at some point when you've spent that much time with someone, you develop a dependence that is perfectly healthy in a friendship, but not the basis necessarily for a good marriage. And David, when you and I talked about this, we also mentioned the fact that getting married changes a relationship in a lot of ways. But one of the most interesting ways I think that it changes a relationship is in how you fight. Because when you're dating, every fight

sort of comes with all this other stuff of, is this a deal breaker fight? What does this mean for the future of our relationship fight? Is this the way this person's fighting? Do I like that? Is the thing that we're fighting about something that's going to come up a lot? Are we resolving this in a way that's meaningful? You know, yada, yada. Whereas when you're married, it just actually weirdly takes the temperature

out of almost every fight. You just resolve the problem. That's it. That's the only thing you have to do in a marriage fight. Resolve the problem. There are catastrophic fights in dating relationships that would not even be a blip on the radar screen in a marriage. And partly, and because of that

underlying commitment of marriage, I think marriage is a lot easier than dating. Because as you said, there's this constant process that's going on in dating. And sometimes it ends when you're engaged, you know, sort of there's that tangible commitment, evidence of commitment, sometimes not. But there's this ongoing process of reevaluation. Am I sure? Am I sure? Am I sure? And there's always this sort of, which in a healthy, in a healthy marriage, that process is, you're not going through that process after the wedding vows. Am I sure? Am I sure? Am I sure? Well, and David, this will be the difference between you

and I, because David, you may think that this sounds like just a really conservative, two super conservative people advocating for more marriage, but here's where David and I are going to diverge wildly and my libertarian, ultra-feminist, turfiness, all of it will come out. All right, you ready? I'm ready. We live in an era of no-fault divorce. Get married, don't have kids. If you screwed it up, getting divorced is a big deal. It has financial consequences and a bunch of other stuff. But it's weird, I think, that for some reason people are putting off marriage longer and longer when in fact divorce has become easier and easier. You can now do it without an attorney, David. You can get the form online. And yet back in the 1950s or whatever, pick your era,

people used to get married way faster and they couldn't get divorced for no reason. You'd have to have one person agree that they would be the adulterer, agree on paper to be the adulterer. So as marriage has been delayed and drops marriage numbers, divorce has never been easier. I don't understand this. So this was my dating advice, David. 10 dates, make your decision. I don't mean you need to get married after 10 dates, but make your decision at the 10 date point. Put it in an

envelope. Make your decision. So that's where we're going to wildly diverge. I would say getting married is better than dating, but not because of no fault divorce, because being married is better than dating. But I do think there's an interesting framework here because I was thinking through this sort of game show or this longitudinal study idea, how it would actually work out. And I think a lot of it depends on the,

we all have sort of natural inclinations, right, Sarah? So are you a romantic or a skeptic? Okay. And if you're sort of natural inclinations, right, Sarah? So are you a romantic or a skeptic? Okay. And if you're sort of more of the romantic, the person who falls, you're going to have a lot of positive check marks after 10 days of maybe relationships that, 10 days, that maybe relationships that 15,

I mean, not even that much further along the line would be crashing and burning. And if you're a skeptic, you're going to have a lot of hesitance after the 10 days of a lot of relationships that could go ahead and would be amazing and thrive. So I wonder if it would heavily skew people in favor of people who sort of have that romantic, I'm falling bias? Which one are you, David? Oh, I'm definitely the person who falls faster.

Yeah. Okay. Oh, 100%. Yeah. So as a romantic in your dichotomy, you're wrong about the skeptics. Okay. How so? It's like our Fourth Amendment conversation. It depends which direction you're coming at it from a skeptic. Uh, I am a skeptic, right? You're the romantic. I'm the skeptic. That's why we make a good little team on this podcast. And I'm not just a skeptic. I am like queen of the skeptics in dating in, in everything. Uh, so you start the relationship by looking for the deal breaker. You're not just

looking for other negative things or weighing. There's not like this pro and con. You're just looking for the deal breaker. And you can find a deal breaker really quickly. But once you found it, you're done. Because if there's a deal breaker, you don't need to keep going. And so my point is that after 10 dates, that's a lot. If after 10 dates, you haven't found the deal breaker, then maybe whatever deal breaker you're going to end up finding, isn't that actually much of a deal breaker at all? Yeah. I walk in with a rebuttable presumption of awesomeness. Oh no. Yeah. You're not in that position. No. That's a rebuttable presumption. It's

rebuttable presumption, but there is a presumption of awesomeness. I walk in, and I've talked about this with my first dates, right? I walk in assuming this will only be a first date. And the question is, will you get that second date? Because I haven't found the deal breaker yet. You get a date until I find the deal breaker. Interesting. Interesting. Okay. The deal breaker for one relationship was on date two in which he, I was like out walking DC studying for the bar. This was right after law school. And he was like, well, where are you? I'll just come pick you up. Because I was like walking home from somewhere and it was hot. And I was like, well, where are you? I'll just come pick you up. Because I was like walking home from somewhere and it was hot. I was like, awesome. Thank you. So he picks me up downtown DC. Remember, I was like supposed to be able to go home change for this like date.

And the first thing he says is, oh my God, is that a Harvard Law shirt you're wearing? I was like, yeah, it's a t-shirt. I was like out in the heat, like walking with my tennis shoes, shorts, and a t-shirt. He's like, I don't know that I would wear that in public. It's like really obnoxious of you. I was like, deal breaker, deal breaker, I'm out. No third date. Yeah. Yeah. That's not great. That's not great. But you know, for, for Nancy and me, we dated a grand total of six weeks before we got engaged. How many dates do you think it was? That's a pretty good question. In the six weeks, it was... Was that 42 days? I mean, every weekend, two dates a week. Yes, you went on 12 dates. Pretty close then,

David. You made a decision after 12 dates. Yeah. Yeah. And then we're engaged for three months. So yeah, it's a great story 26 years later. Scott and I were friends. We met, we don't know how we met, but we met roughly in 2007, 2008. in 2007, 2008. But we dated from, yeah, like it was like July. He proposed in December and we got married in March. That's very reasonable. Pretty quick.

That's very reasonable. Yeah. Yeah, absolutely. Absolutely. But in fairness, I did know him. But I will say dating, it changes changes my whole like i wasn't looking for a deal breaker and being his friend i mean i guess maybe you kind of do in friendship but like the deal breaker for a friend is like way on the extreme do they murder puppies like no no deal breaker we're good um are they reasonably fun to hang out with but like i will say the second we started dating i was like is that a deal breaker is that a deal

breaker is this fight you know real what about fight? Can we agree on that? What happens when I don't know where I want to go to dinner tonight? And he names three places and I nix each one of those places. And then he says, where do you want to go? And I'm like, I don't know, which is a thing that I think happens in every single relationship. And it's very gendered. And I think it's important for, literally, finances are important. I think what happens in the middle of that conversation is very telling on the health of a relationship. Do you and Nancy ever have this problem?

About where to go to eat? Yeah, like, where do you want to go to eat? I don't know. I don't really care. What do you feel like? Then you name multiple places. And she's like, well, I don't want to go there. I don't want to go there.

And you're like, OK, then you name a place. And she's like, well, I don't want to go there. I don't want to go there. And you're like, okay, then you name a place. And she's like, well, I don't have a place to name. I would say that might've been something decades ago, like literally decades, but we know each other so well that we know the universe of acceptable answers. And it's just basically of the menu that I know that you like, which one strikes your fancy today. And if one of those doesn't, she knows. I mean, it's all so. Yeah. So that's a very healthy way to get to be where we're going to eat tonight. Last night, husband of the pod and I took a long time to decide on a place, like really long. Neither of us were very hungry, clearly. And then we get in the car and there's traffic.

And he's like, give up, turn around. Let's just go somewhere else. I was like, but now my heart is set on this place. And the Google Maps said, mind you, it is nine minutes from our house. The Google Maps said it was going to take 37 minutes to get there. Would you turn around, David, or would you persevere? Oh, that's the simplest answer ever. A turnaround. Yeah. Like we, we have a phrase that we use in sort of like, whether you're, you're going out to dinner or you're, you're having some sort of decision about hosting or whatever,

and it's called transaction costs. And if there are excessive transaction costs, then you, to use another term, pop smoke. That's it. You're done. So yeah, absolutely. Going out to dinner should have minimal transaction costs. And so that's where we are. So we did turn around, but the meal that we ended up getting was so inferior on every category.

I ended up, so I was going to have like one of those absurdly expensive cheeseburgers with a glass of amazing wine in a nice restaurant at the bar and instead had a po' boy and an iced tea in like an order at the counter place. I don't know. For 37 minutes, I could have gotten my delicious cheeseburger and wine at the bar. Yeah, I don't know. Po' boy is good. I like a good po' boy. It was a good po' boy. It was, but it was a totally different thing than like mentally what I had signed up for. Yeah. That all factors into the transaction cost analysis.

So should I get divorced? That's the question. Just kidding. I don't know. I don't think so. No? Okay. No.

All right. Well, in that case, Caleb, we hope that was helpful. Just kidding. Poor Caleb. Poor Caleb. Poor Caleb. Poor Caleb. Poor Caleb. Caleb is doing his best out there, ladies.

Making his way. By the way, David, there's an amazing book you should read that I'm going to interview the author for one of the Dispatch podcasts next week. The book's called Rethinking Sex, A Provocation. And it's all about how the kids these days, like anyone under the age of 35 who's now been forced on to like the tenderization of dating where sex is sort of an expected thing at the end of each date has actually become a really anti-feminist problem and is ruining relationships and hurting a lot of gender dynamics, etc. But here's what's fascinating, David. The woman who wrote it is a progressive. Yeah, I wrote about her essay in The Washington Post that was sort of the debut of her book.

And it was so good. Her essay in The Washington Post was so good. I'm going to read her book. And I actually, it also reminded me of a piece from last year by Michelle Goldberg in the New York Times, making much the same point about how bad the current mores and norms have been for progressives and for feminists. And it's absolutely, I'll put my short essay in the Atlantic in the show notes. We'll put the Christina Imbell long essay in the Washington Post in the

show notes. It was really, I would really urge people to read it. It was powerful stuff. Caleb, you hear that? You need to read that. Yeah, it was powerful stuff. I have a book recommendation. yeah it was powerful stuff i have a book recommendation i have a recommendation i'm reading powers and thrones it's a single volume history of the middle ages by dan jones and it is so it's just so well written and it's it's so delightfully written you think you know i of all the things you're thinking that you're missing in your life, probably it was not a single volume history of the Middle Ages that you're missing. That's what I was doing on Wikipedia last night.

Did you watch season four of Last Kingdom? Season four, season five, whatever the season is that they just released. Because then I got super into the time period right before 1066. Yeah. So I'm reading about Dane Law right now. Oh, okay. Definitely. Can you put the link to that in the show notes? I'm going to use it to go get this book. Yeah, absolutely. It's so good. Okay. So both of us are going to read the other book, the book that the other one just read this week. That's awesome. Yeah, absolutely. Absolutely. All right. Sex and Dane Law. Perfect. Yeah, absolutely.

Absolutely. All right. Sex and Dane law. Perfect. Well, speaking of books, on Monday, we're going to talk about a new report that came out from PEN America about large-scale book removals from public school libraries. Pretty big numbers there. So we're going to talk about that, maybe revisit some of the constitutional issues surrounding it that we've already talked about before, but are increasingly salient. And I know that other things will come up. So

please tune back in on Monday. Rate us on wherever you listen to your podcast, subscribe wherever you listen to your podcast, and please check out thedespatch.com. Thank you.