Advisory Opinions - Tears of Scrutiny

Episode Date: May 2, 2024

It’s a silent spring in Texas as Pornhub pulls out of the state in an act of protest over a law requiring age verification measures. Sarah and David go through the legal battle between the explicit site and Texas AG Ken Paxton.The Agenda: —Sarah’s high —Texas law requiring age verification to access pornography online —The tiers of scrutiny in constitutional law —The role of text, history, and tradition —Going through the Antisemitism Awareness Act of 2023 —Understanding the differences between Medicare and Medicaid can be challenging, even for lawmakersShow Notes: —Sarah’s Remnant episode —Jacobellis v. Ohio —Ginsberg v. New York —Ashcroft v. ACLU —Child Online Protection Act —Wickard v. Filburn Wilker —United States v. Carolene Products Company —David for NYT: Ban Online Porn for Kids —David for NYT: One Party Has a Serious Foreign Policy Problem. The Other Has a Tantrum. —A class-action lawsuit against Columbia Learn more about your ad choices. Visit megaphone.fm/adchoices

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and mix it with the other. And you can shop that whole world right here in our aisles. Find it all here with more ways to save at Real Canadian Superstore. Ready? I was born ready. Welcome to Advisory Opinions. I'm Sarah Iskier, that's David French. And we had a short window to record today.

And that means two things, David. One, I'm on laughing gas. And two, there's a Kleenex box with a dead bird on my dining room table. Okay. So let's deal with the second one first. Yeah, okay. When did you kill the bird?

Why? And did it annoy you like cricket annoyed Kristi? No. Not at all. In fact, it was a very animal friendly morning this morning on my drive to drop off the brisket at school. The man in front of me with a Nevada license plate stopped his car and I was like, what's going on?

And he was getting out of his car to help a turtle cross the road. And it brought me so much joy. Wow. And I was like, yay, go Nevada license plate dude. We don't see a lot of Nevada license plates around my parts. So that's why I mention it. Because if you're listening to Nevada license plate dude,

you made my morning. Then I got to school, dropped off the kiddo, I'm walking to my car and I see something fall off the roof of like the school gym. And I don't know why. I mean, yes I do. You guys know me. I'm a curious person and something in the back of my head told me that that wasn't like a tile falling off the roof. So I left my car, went over to where I saw the thing fall off the roof and lo and behold,

it was a Wren that had, I don't know, I assumed it had run into a window or something like that. It was still alive. Its neck wasn't broken. So, you know, just concussed. So I picked it up. I went back to the classroom, got a clean Xbox. But you know, it's one of those head injury things, right? Like the same as a human, your brain swells and either that swelling sort of crushes your brain or it doesn't and the swelling goes down and you make it you just, you know, have a concussion and you just need to rest for a little bit. Well, by the time I got home, the bird was resting eternally.

But I didn't have time to do anything about that. And I had to go to this doctor's appointment so I could get back and do this recording with you. And so that's how I've ended up on laughing gas with a dead bird on my dining room table. Well, I am very sorry the bird didn't make it, but it did give me the opportunity to ask you the question that I've been wanting to ask since the Kristi Noem story broke. What do you think of the this is how rural folks operate defense?

Because I have thoughts on that, by the way, Sarah. Okay, so I talked to Jonah about this on the remnant because like yes and no. So as y'all know, or some of you, my mother was a federal and state licensed wildlife rehabilitator who specialized in deer and raptors. And so we had a lot of dead animals around, live animals around,

and my mother would get called by the sheriffs and highway patrol and the fire department all the time for like emergency animal stuff. And we lived in a rural part of Texas. It was a 2000 person town and we didn't live in the town. So I remember this one time she got called out to a deer that had been hit. The patrol officer obviously thought the deer was pregnant. I guess he thought maybe my mom could perform a C-section on the side of, you know, F-ing whatever. I was sitting in the car and I couldn't hear the conversation.

My mother had like closed the windows, but I could see him take out his service revolver and dispatch the deer on the side of the road in front of a child. Nature is red in tooth and claw, Sarah. So right. So that's sort of my like, yes, it is true that you don't like, it's not all sanitary and civilized feeling and all of that. Like, yes, you do shoot animals. It is more humane than waiting or somehow getting this deer to a vet or letting it just suffer on the side of the road. So that part I don't object to. What I object to is that there was no reason to put this animal down.

Yeah, that's where I am. I mean, I grew up in rural Kentucky. My town at the time, you go to it now and it's a big town. But when I was there at Three Stop Lights, about 8,000 people, and it's a big town. But when I was there at three stoplights, about 8,000 people, and it was not universal that when it was a dog's due time or a pet's due time, a horse's due time, that you had to go to the vet and then have that.

There was, as I recall, like one vet in town that everything happened in that way. It's also just not necessarily more humane. Right. Right, the animal's scared, it's suffering, it's miserable, whatever the situation may be. Sometimes it is just more humane to do the hard thing yourself,

something that I will be very honest, I am incapable of doing, even if it is absolutely the right thing to do. I just can't. That's what Scott, that's what husband of the pod is for, and I have had him do it before. I have had him dispatch animals. So I, a total agreement that in their due time,

sometimes you do it yourself. This is something, I don't think it's purely rural, by the way, that that's the case. But when I grew up, yes, if it was the time for the animal to be dispatched, doing it at home in a humane fashion was totally normal. Here's what was not normal, doing it to a 14 month old dog that's otherwise healthy

because he's munched on some chickens. By that standard. Which is also part of how life works out there, right? Like, I can't tell you, I mean, maybe this is not actually a good story for cricket, but we had lots of baby bunnies all the time. And like silence of the lambs, you would hear the screaming of the baby bunnies

and there'd be a snake that got through the chicken wire. And mind you, this was like fine chicken wire, but they can find their way through anything. They're like octopus. And you know, I would say about half the time, my mom would be so mad at the snake, she'd take a shovel and about half the time, she'd be like, well, he got his meal, let him on his way. Right, right.

And we had a dog, we had chickens, before we moved to our current house, we had chickens in our backyard and we had three dogs and never the two camps should meet. That's right. Because the one time they met, it was some carnage. And I never for a moment thought, well, gotta kill the family dog now. Like, what on earth are we talking about?

And so yeah, I thought that was the weird part, not that somebody in a rural part of America put a dog down. Right. So the conversation gets a little mixed up because people are trying to defend that one part, but like, I'm with you on the one part, but then you have to acknowledge the other part. Or people are so fixated on how wrong it is to kill a 14-month-old puppy that they're claiming she broke the law.

Well, no, shooting a dog isn't against the law, not in South Dakota, and I don't think in most states. Because again, like, actually actually it can be pretty humanitarian, but when you combine the two. Yes, that's the issue. 14-month cricket did not commit a capital offense. So yeah, that's, and the sort of, I think the other part of it

that kind of really rubs people the wrong way is the sort of defiant, yeah, this is, you know, I'm your tough redneck mama vibe from it. When you're like, come on, you're super prosperous. Like you're super well off. You can totally train a dog if you want to, or at least not massacre it, because it's not as trained quite as well

as your other dogs. Which is your responsibility, by the way. So like it's a failure on your part. Okay, but David. David, this is a legal podcast. And we're going to talk about porn today. Okay. From dog aside to porn.

Okay, here we go. So I actually think this is a good sort of entrance into talking about some larger legal stuff as well. But the Supreme Court just declined to stop a Texas law from going into effect that requires age verification to access pornography on the internet. So this was obviously a law that was intended to protect minors online. The district court said that it was encroaching on protected First Amendment activities. The circuit court, Nodog the district court, and the Supreme Court is going to let the circuit

court ride, meaning that the law is in effect in Texas, which has resulted in Pornhub pulling out of Texas. And you just feel like there's a silent scream coming from my home state of people who can't acknowledge how much their lives have changed because it would be awkward. It's like Silent Spring. But this is sort of interesting because you and I have talked about this in the framework of TikTok and other things about like when can you restrict minors' speech and what about if it's sort of universal speech, but you're just trying to restrict minors from getting to it and what is legal and what's not. So I just thought that we should start with,

and I always, Jacobalus, I think, Jacobalus versus Ohio. This is the case about the film, The Lovers, La Mance. And Ohio tried to ban viewing of The Lovers And Ohio tried to ban viewing of the lovers under Ohio revised code, something or other. There was a fine of $500 on the first count, $2,000 on the second. If fines were not paid, you could be incarcerated at the workhouse

for showing the film. So Jacoblus was convicted because he showed the film. So, Jacobalus was convicted because he showed the lovers. And the Supreme Court sort of hems and haws all around this thing. In fact, there was no majority opinion in Jacobalus of whether this was okay. But they did, through a plurality, reverse the conviction ruling the film was not obscene and so was constitutionally protected. Now you may be wondering why I'm talking about all this and what it has to do with this Texas law, but this is the case where we get Justice Potter Stewart, who wrote a concurrence in which he said basically the constitution protects obscenity except hardcore pornography. And

then sort of musingly knowing that someone would be like, okay, but then how do we know what hardcore pornography is? Quote, I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description. And perhaps I could never succeed in intelligibly doing so, but I know it when I see it. And the motion picture involved in this case is not that.

So yes, all of the justices watched, maybe porn, maybe not, and then had to describe it in a written opinion. And it's a real treat back from 1964. But this is going to kick off a lot of obscenity law, David, including what's going to be the two cases at issue here, the two precedents at issue. One is the Goldberg case in which it was a crime to sell girly magazines to minors. And the Supreme Court said, no problem, you can do that. Right. And they used rational basis review. We're going to come back to that. And then there's the Ashcroft case versus American Civil Liberties Union from, what is

that, 2000? 2004? Yes. And in this one, it's a law actually not that dissimilar from the Texas law about the Child Online Protection Act, in which case they apply strict scrutiny and say, no, this is not the least restrictive means to do this, and they strike it down. Okay.

So David, I thought this would be a fun chance for us to go over once again the tiers of scrutiny, the history of them, and how text history and tradition stands in opposition to, replacement of, in addition to. I want to get your thoughts on that. So first, just a history on our tiers of scrutiny. So before the 1930s, I don't know, you just called it as you saw it if you were a justice of the Supreme Court. And frankly, the Supreme Court didn't look

like our current Supreme Court until about the turn of the century anyway when it comes to federal courts and their appellate jurisdiction and all of that. So we're not gonna worry about before that. Okay, so we're now in the 1930s. 1937, you're gonna have Wickard v. Filburn. That's the case where they say that even if you're just growing the wheat on your own property, you're not selling it. You're using it for your own purposes.

Wait, did you say weed or wheat? Wheat. Okay. Who's on the laughing gas now? I'm sorry. Yes, sorry. Wheat. Although it was going to come up in weed, you later. But Wickard's growing weed on his own property to feed his animals and he grew more or in the allotted, too much of the allotted space. So he violated the Production Act and he argued, well, this is an interstate commerce. So Congress has no ability to have this law as enforced against me. The Supreme Court said, no, if you're growing it for your

own purposes, you're not having to buy it and therefore it does affect interstate commerce and therefore commerce clause. And thus the explosion of the commerce clause until there were two cases in the 90s, the ones I talked about in the last episode, Morrison and Lopez, where you think they're about to reign in Wicard, but then there were just no more other cases like that. So weird. Wicard's still the law of the land. Very much so. Okay. But in 1938, the next year, they had this case called Carolene Products. And this is about Congress banning the interstate transportation of filled milk. So same idea. These milk people

are like, where are you getting this idea from? You don't have the ability to do this. This violates our constitutional rights. And the Supreme Court says, look, as long as a law rather passed by Congress is presumptively constitutional, as long as it's basically rational. And this is where we're going to get the rational basis test. So it's the idea that if a law is rationally related to a legitimate government interest, then it's presumably constitutional. Rational basis test, you can pretty much always pass. So it's going to get really important in a pornography case.

But in footnote four of Caroline Products, probably the most famous footnote in Supreme Court history, that's where Justice Stone writes that, I'll quote, there may be narrower scope for operation of the presumption of constitutionality when legislation appears on its face to be within a specific prohibition of the Constitution, such of those of the First Ten Amendments, which are deemed equally specific when held to be embraced within the Fourteenth Amendment.

It is unnecessary to consider now whether legislation that restricts those political processes, which can ordinarily be expected to bring about repeal of undesirable legislation, is to be subjected to more exacting judicial scrutiny under the general prohibitions of the Fourteenth Amendment, nor need we inquire whether similar considerations enter into the review of statutes directed at particular religious or racial minorities, whether prejudice against discreet or insular minorities may be a special condition which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities, and which may call for a more correspondingly more searching judicial inquiry.

Okay, let me translate that. Basically, it's rational basis review, it's presumed constitutional. If the legislature could have had, they didn't need to actually say what their reasonable rationale was, and it doesn't even need to be consistent. As long as there could have been one, it's constitutional. Unless basically it involves an enumerated specific right in the Bill of Rights, or it could undermine the political process that would allow you to repeal the law, or it affects a discrete and insular minority's ability to affect that political process.

And so there you have strict scrutiny and all the rules that come along with strict scrutiny that it has to be a compelling state interest, that the law must be narrowly tailored to achieve that interest, and that the law uses the least restrictive means. And that's why we call it strict in theory, fatal in fact. So on the bottom, rational basis review, you're good to go. At the top, strict scrutiny, you're screwed. And in the middle, intermediate scrutiny, which nobody knows.

That can apply to things like gender-based discrimination laws or just gender-based distinction laws, depending on how you want to think about them. And commercial speech. Ding, about them, and commercial speech. Ding ding ding, commercial speech. Mm-hmm. So, I just want to say one more thing about intermediate scrutiny. This is just an important government interest that are substantially related to that interest.

So we've got all these words, compelling, important, but think of them more as stair steps. We figured it all out well beforehand. Rational basis, government wins. Intermediate scrutiny, judge preference wins. Strict scrutiny, government loses. As the general, that's the general, now there are on the edge exceptions to that on the edges. But as a general matter, if you're on the receiving end of strict scrutiny, if your action is on the receiving

end of strict scrutiny, you're in trouble. If your action is on the receiving end of rational basis review, you can feel pretty good about it. And that's the whole, the standard of review is the ball game in this porn case. And this is why I wanted to talk about the standard of review, because almost the decision of who's going to win and lose gets made not in applying the standard of review, but in deciding which standard of review to apply. And so that's why it's so interesting. In this case, you're going to have the district judge saying it's a strict scrutiny case and therefore the law fails. And then the Fifth Circuit is going to say, no, it's a rational basis case.

And so the law can stand and the Supreme Court just choosing not to weigh in. And David, this is sort of the broader interesting question for me. The tiers of scrutiny start existing in 1938 because of a footnote in a case about filled milk. They are not in the Constitution anywhere. And we've been applying them for almost 100 years. Text history and tradition as a test, in theory is supposed to replace the tiers of scrutiny when it comes especially to those sort of enumerated top

tier rights, if you will, First Amendment, Second Amendment, that poor Third Amendment, et cetera. The ironclad Third Amendment, the unbeatable Third Amendment. Which, by the way, the Supreme Court hasn't decided a Third Amendment case, but there are Third Amendment cases out there that have been incorporated against the state. So fun times. But David, here's my question. And we'll take a quick break

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Obviously, this case turns out differently depending on whether you think it's a rational basis case or whether you think it's a strict scrutiny case, whether you think it implicates a core First Amendment principle or it doesn't. But I guess I'm curious, if you got rid of the tiers of scrutiny and simply applied text history and tradition, how would that change all of this as the court seems to be moving in that direction overall? Because, and this is where I'm very sympathetic

to text history and tradition. Because as I said, if the who wins or loses is decided based on which tier of scrutiny you apply, and so then it's, that becomes where the battleground is and that's not based on anything in the Constitution. It does seem off to me. Yeah, the answer on the text history and tradition is a lot of the history has nothing to do

with the Constitution. And so, you know, you've got under text history and tradition, where do the alien and sedition acts fall, for example. And so the bonus of the strict scrutiny or the layers of scrutiny is to me, as I've said before, it actually puts more emphasis on text because if you have the enumerated right, if you do have that enumerated right, the thumb is definitely on the scales, whereas text in favor of that right, whereas with text history and tradition, you got the text.

text in favor of that right, whereas with text history and tradition, you got the text. But Jim Bob and Bubba and the Kentucky legislature in 1884 may or may not have been thinking about the text when they passed their law restricting X or Y right. But now we got to deal with the legal scholarship of Jim Bob and Bubba from the Kentucky legislature in 1884. I mean, what are we doing here when we're looking at all of this? And it turns into, I just haven't seen how text history and tradition replaces the clarity of strict scrutiny with what? I mean, we'll have the Rahimi case that will come out here shortly, which will be another text history and tradition case. And maybe it will help us. That's a Second Amendment case. Yes, involving domestic violence restraining orders, which did not exist when the text was written of the Second Amendment when the history surrounding the adaptation or the ratification of the amendment was written and nobody knows really what tradition truly means.

You just consider me with Judge Newsom on the tradition element. It's a way of injecting sort of living originalism. And so I look at layers of scrutiny as a very fair way of giving force to the text. I look at text history and tradition as a way of using history to avoid the text. But we'll see how all of this shakes out.

Because again, the history element of text history and tradition, I just am not sure why we're attaching a lot of legal credibility to the political judgments of various state legislatures. But that's, we've talked about that a ton. But what fascinates me about this case, Sarah, because as we were saying, the rational basis review or strict scrutiny is the ballgame here, is there's two aspects.

One, the Fifth Circuit was basically seemingly entirely looking at this through the prism of, hey, these are kids who do not have a right of access to this material, therefore it's rational basis. Whereas the critics of the law were saying, no, no, no, wait, this impacts adult rights. And the impact on adult rights is what gives us strict scrutiny. So they're just completely ships passing in the night.

And what's fascinating about the case is it's almost like the Fifth Circuit like read one of my pieces about this issue, which was like aimed at the Supreme Court and said, we'll go ahead and do that now. Because one of the points that I've been making in arguing and remember we had that great debate, you know, several months ago, gosh, might even be close to a year ago,

over this very issue where we debated the issue of childhood or kids access to porn. And I made two big points. One point was, look, offline analogies apply to online speech, including things like zoning, including things like zoning, including things like secondary effects doctrine, et cetera, that we don't need to think of online speech as something totally separate from offline speech. And

so the on offline porn precedents are quite relevant for the online space and you can create versions of the offline regulatory world online. That's point number one. And then point number two was that the Ashcroft cases and these cases dealing with the Communications Decency Act and previous efforts to age gate access to pornography were bound up in the existing technology of the time and the technology is fundamentally different.

And the court signaled in those cases that it's fundamentally different. And so, but here's what's interesting about that. Those are all normally the decisions the Supreme Court makes. In other words, it's looking at its prior precedent and says, here's how this clearly applicable precedent is distinguished or should be distinguished or perhaps partially reversed because of this or that development.

The Fifth Circuit just went ahead and said, I think that's where they're going and we'll go there first. And that's where I find this case fascinating. And I basically, I mainly ascribe the court not taking the case to the effort to regulate and normalize the docket. I mean, we this is happening. Remember, after the court did not take a drag queen case that we talked about, it looks like they're trying to put the brakes on the emergency docket. But I found the Fifth Circuit opinion fascinating because it absolutely mimicked about two or

three op-eds that I've written in and how I think the Supreme Court should approach this. I'm just curious if the Supreme Court's going to say, yeah, it's fine for the Fifth Circuit to have gotten there first on this. Or if the Supreme Court's going to agree at all that some that with this interpretation of its prior precedent that online precedents should conform to offline precedents or that, yeah, it was in fact the state of the technology that was very dispositive in the 1990s and early 2000s, as opposed to sort of an absolute rule

that you can't place any kind of identification burden on adults who seek to access pornography online. So that's what's fascinating to me about this case. I just wanted to spend a couple minutes running through these precedents and where I think you can distinguish or can't distinguish what's interesting. So first of all, in that Gurley magazine one, the Ginsburg one from the 60s,

the reason that I think that one so clearly triggers only rational basis review is because basically it's like if you're selling magazines, you need to ask for their age. So when a child, a minor, or anyone walks up and is like, hey, I want that playboy, you simply ask for their license in the moment and that's it. So sort of almost regardless of which basis you use, now they use rational basis, but I probably think they should have used strict scrutiny. But in that case, it is the least restrictive means. I mean, that's just not a huge burden on an adult to have to show their license or an age verification to pick up a Playboy. Now, what's different is in the 2004 ACLU

Ashcroft case, and by the way, the lineup on that case is fascinating. So you had Kennedy, of course, as the swing vote, delivering the opinion of the court in which Stevens, Clinton appointee, Souter, H.W. Bush appointee, but had moved very far to the left, Thomas, Bush appointee, Ginsburg, Clinton appointee. So that was your majority. And then you had Scalia, Breyer,

Rehnquist, and O'Connor in dissent. So it was just not a clear lineup on ideology, on anything else. So remember the majority is gonna strike down the children pornography law into that dissent with Scalia, Rehnquist, O'Connor and Breyer was saying it should have been upheld. In that case, what Kennedy's argument in the majority is,

is basically that there were other ways to get there. That for instance, filters or other laws, for instance, that banned misleading names of websites or anyone remember whitehouse.com? Because I definitely accidentally went to that many times. So the children would accidentally... Do you not remember whitehouse.com? I do remember that. I just thought it was funny you said many times.

I kept forgetting. Like this was, you know remember that. I just thought it was funny you said many times. I kept forgetting. This was in the very earliest. It was 2000. Right. I just kept typing in Whitehouse.com. Oops. They, for instance, said, create a MinerSafe.kids domain. Now, on that precedent, what's sort of interesting to me is that this is 20 years ago.

The internet has grown up a lot. How people access websites has changed a ton. We're not typing in Whitehouse.com anymore. You put it into a search engine and type Whitehouse. And also, I think the problem now isn't kids accidentally going to porn sites. Yep. They know what site they're going to. It's the point of why they're going to it.

But we've also seen a lot more hacking as you ask for people's personal information, for instance, a credit card on file, which would show that they were an adult, for instance. Yeah, but then it gets hacked and now your name and personal information and credit card are out there. So I think it has changed a lot and even the application of strict scrutiny has changed a lot. And the way we think about minors access to free speech has changed as well. And here I'm thinking of angry cheerleader.

Yeah. You know, that was, of course, a case about whether school administrators could punish off-campus speech. It was 8.1 said that it was protected, her F-bombs were protected speech, but that school administrators do have the power to punish student speech that occurs online or off campus if it genuinely disrupts classroom study.

They just held that this one didn't genuinely disrupt classroom study, which was more of a split the baby than I wanted on angry cheerleader. So I think all of those will make this a very interesting case. I think it is going to the Supreme Court. It's just not gonna go up on this injunction. Yeah, I agree with you.

And I don't know, I don't know. Well, this is why I have said, I think there's a real opportunity to make a coherent argument, that again, with these two points about online, offline and age gating, because when you read the original opinions, you can tell they're wrestling just as much

with the technical aspects and the evolving technical aspects of the internet as they are with sort of the bedrock constitutional principles. They're trying to filter these constitutional principles through an emerging technology that really was still in its relative infancy 20 years ago certainly compared to where we are now. And that's why I think it's very much worth making another try at this to see if you can do it better than it was done before.

And I also think it really will get to sort of an issue that wasn't so much raised in the earlier round of cases because the technology was so rudimentary that it was really difficult to say how you could even comply. How could you be sure that you could comply? So the Fifth Circuit pointed out four differences between that 2004 law and this law. I'll just run through them in case people sort of,

as you're making up your own mind at home. The 2004 law included prohibitions on non-sexual material. This one doesn't. Yeah. Two, parental participation or consent could not circumvent that previous law. It can for this one.

That law did not specifically define the prescribed material. This one does. And that one had no limitation to commercial activity. This one only covers commercial entities. That, I think, is fascinating, David. And I guess, just by definition, since we have generally applied intermediate scrutiny to commercial activity,

I'm not quite sure how we're even getting to strict scrutiny or rational basis review. Right. Except that the problem here is that the people claiming that their First Amendment rights are being violated are the consumers versus the purveyors. So the purveyors are commercial speech. The consumers are not commercial speech.

Still, this feels like a commercial speech case to me, actually, because it's limited to only people who are seeking, you know, payment to see sexually explicit material. And the complaints have been like, well, this could apply to Game of Thrones. Like, well, okay, the parental consent gets you around that first of all. And second of all, yep, Game of Thrones was pretty porny. Oh man, especially the early, early, the first season, and then it got progressively less. Do you remember the SNL on the set?

Yeah. So it was a Saturday Night Live skit. and then it got progressively less. It's sort of like- Do you remember the SNL on the set? So it was a Saturday Night Live skit, and it was like, here, one of the most popular television shows, blah, blah, blah, we're on the set, yada, yada. And then it cuts to the director, and it's a 13-year-old boy, and every time he yells,

cut, more boobies! Yes. Yeah, that first season was gush over the top. But the, yeah, you know, and there were two other distinguishes, so it had four and then it goes to five. In joining the CDA, the court relied at least on part on the absence of a viable age verification process. But that process is the central requirement of HB 1181.

And six, the court's decision was fundamentally bound up in the rudimentary existing technology of 27 years ago, but technology has dramatically developed. I don't know how this is going to come out at the Supreme Court, Sarah. I'm assuming they're eventually going to take it. I don't know how this is going to come out because as you were noting very effectively, this previously did not neatly map onto the pre-existing ideological divides. And also, look, a lot of the more conservative justices are also quite, quite protective of free speech. And so there's this, there's sort of a, you know, to the extent that you think, well, a lot of these very devoutly Catholic justices are absolutely going to want to clamp down on porn.

Well, a lot of these same justices are some of the most protective of free speech justices on the court. Yeah, like look at Gorsuch. Right. I don't know how you could predict how Gorsuch would come down, except I'm going to predict he is more First Amendment protective

than concerned. Tom would say on this one. Yeah, sure. On the spectrum. Yeah, yeah. Yeah, say on this one. Yeah, sure. Yeah. On the spectrum. Yeah, yeah. Yeah, on this particular issue. But yeah, it's going-

Don't remember, Thomas is in the majority in the 2004 case with Kennedy. Mm-hmm. Right, so he's the one who strikes down the law that is actually, you know, very similar to, that we've, again, pointed out the differences. Yeah. But it's the same vibe.

This one's a little more narrowly tailored. Is it more narrowly tailored enough? Don't know. All right, next up, another law coming out of Congress. This one set to define antisemitism. So it is cleared the House Rules Committee. It is now heading to the floor. This is HR 6090,

the Antisemitism Awareness Act of 2023, one of several bills introduced in Congress since the October 7th attacks. The point of the bill is to amend Title VI of the Civil Rights Act of 1964 to include a definition of antisemitism so that all schools that receive federal funds that have to comply with Title Six would now have this built-in definition of antisemitism and what speech crosses the line into antisemitism. Right. David, I think you and I have made our positions very clear on our personal feelings of which policy side of this debate we think is the right policy side, right?

We're both pro-Israel. Yes. That's the way it goes we think is the right policy side, right? We're both pro-Israel. That's the way it goes. Israel has the right to defend itself. We've talked about it in various specifics many times. From the legal side, I think we've made very clear our positions on the free speech part, on the protests, where their rights start, stop, the rights of the other students. And we certainly talked about Title VI as well. And frankly, there's lawsuits being filed like candy around the country against these schools that these students claim that they have experienced severe and pervasive harassment that interferes with their ability to attain their education because of their religion or ethnicity. Now... Class action against Colombia filed just a

day or so ago. Yep. And it looks like a winner to me. Oh, boy. I mean, they're blocking them from getting to the library based on whether they're Jews. Like, I don't even, it's like, it's not even like one of those interesting cases, actually. Okay, but this is different, and I think you and I probably are gonna agree that we're against this law. Yeah, Sarah, this, but there's subtleties here

that both make it problematic for free speech and maybe not. It's a very strange thing because, so when you look at the actual bill, it talks about the Title VI of the Civil Rights Act prohibits discrimination on the basis race, color, and national origin, that it doesn't cover discrimination solely on the basis of religion, but if you face discrimination on the basis of your actual or perceived shared ancestry or ethnic characteristics, you're going to be protected.

Now, that is not what the law specifically says. That is the interpretation of the law by both the Trump administration and the Biden administration. They've been very clearly, the DOE has very clearly said that they believe that anti-Semitic harassment fits under Title VI. And so what this is not doing, it is not changing the definition of harassment. Correct. What it is doing, it is very explicitly saying antisemitic harassment gets pulled in, which I think is valuable.

In other words, if the law, the statute doesn't say antisemitic harassment and says, it says race, color, and national origin, and the application of antisemitic harassment is an interpretation of the statute, I see no harm in including anti-Semitic harassment to make it very clear that that's included in race, color, and national origin. Same. Now, but okay, what's the definition?

Because to me it's very obvious that it's literally called anti-Semitic. Right. Exactly. Semitism is an ethnicity. Exactly. But okay. Sure, if you needed that spelled out for you, no problem. But okay.

But then here's the definition. It's taking the definition of the International Holocaust Remembrance Alliance, the IHRA, and it says, Anti-Semitism is a certain perception of Jews which may be expressed as hatred towards Jews. Rhetorical and physical manifestations of anti-Semitism are directed toward Jewish or non-Jewish individuals and or their property towards Jewish community institutions and religious facilities.

Okay, a certain perception of Jews which may be expressed as hatred towards Jews. Okay, I think that's a fair way of describing anti-Semitism sort of in the vernacular. But then the law says the law includes contemporary examples of anti-Semitism. So then the IHRA has a number of examples, calling for a aiding, or justifying the killing or harming of Jews in the name of a radical ideology or an extremist view of religion. Let's stop right there. Okay. I think that was horribly evil and repugnant.

Calling for, aiding, or justifying the killing or harming of Jews in the name of a radical ideology or extremist view of religion. Horrible, terrible, totally agree. Also, if that definition is transferred into what is harassment, then you've got a Brandenburg issue. You've got some issues regarding an abundant amount of free speech jurisprudence that says

there's a first-member protection in calling for violence unless it's imminent lawless action. You're seeking imminent lawless action. It's likely to produce such imminent lawless action. Here's another one, making mendacious, dehumanizing, demonizing, or stereotypical allegations about Jews or it's the power of Jews as a collective. Again, bad, terrible, horrible. It is to do that. It is also, in many instances, constitutionally protected. And my concern with this here is

all of those things that were in that list, and I could keep going, all of them could in theory be elements of a viable harassment claim, but depending on the context of all of these statements. These statements are not harassment. They don't equate with harassment, but they could be an element of a harassment claim depending on when and how and under what circumstances all of that is done.

And so I don't find it necessarily helpful for defining harassment. And I find it dangerous from a First Amendment standpoint because the obvious instinct here when you read this, Sarah, if you're a university administrator is, I've got to ban a bunch of stuff on my campus to comply with this as a prophylactic measure. And there's real, and again, I just want to double underline,

triple exclamation point, I totally agree that all those ideas that are articulated are evil ideas. They are bad, they are terrible. It is painful for people to hear them. But they run headlong into First Amendment precedent. And it is not clear to me that the way all of this is harmonized with harassment law is clear enough to limit its impact. That's sort of my thought on it, Sarah. Yeah, so can I summarize it this way? Yeah.

To the extent you wanna throw out a definition of things that can form the basis of a harassment claim, fine, but they still need to be so severe and pervasive as to affected someone's educational experience, yada yada. Basically, if you're fixing just the because of, so there's harassment, it's severe and pervasive, it's because of the person's race, ethnicity, religion, et cetera. So if this is just being added to help you with the because of part, fine. But if it's being added to help define what would make something severe and pervasive, what would make something harassment, then you have big First Amendment problems.

And then I guess the other issue for me is there is a difference between saying, you know, Netanyahu should be thrown out on his behind or the military policies of the Israeli government are war crimes and saying kill all the Jews. Right. You know, one of the ways to think about this, and I get a ton of correspondence from readers about this very issue, things like globalize the Intifada, Palestine shall be free from the river to the sea, Palestine shall be free, these kinds of statements. And people tell me, don't you know how hurtful they are to hear?

I totally get that. But hurtful to hear is not the First Amendment standard. Think of it like this, if I'm walking unimpeded down a sidewalk towards a classroom where I'm going to be able to study in peace, and I walk by some people chanting those slogans, globalize the Intifada or Palestine, that might be very hurtful to hear it. But note that I'm fully able to receive the benefit of my educational experience.

But let's say some of these protesters peel off because they see maybe I'm wearing a yarmulke or a starved David necklace and they start following me to my class, yelling and chanting. They've targeted me because I'm Jewish. They're following me to my class, yelling and chanting, or they try to block my access. Now we're moving in an entirely different arena, and I've used this analogy before, and I know a lot of First Amendment experts sort of bristle at this, but if you can think in your mind,

a good way of thinking about anti-harassment regulations is as a kind of a rough approximation with a time, place, and manner restriction. So for example, Palestine shall be free from the river to the sea is constitutionally protected speech. It is not if you're screaming at me manner restriction. So for example, Palestine shall be free from the river to the sea is constitutionally protected speech. It is not if you're screaming at me because I'm Jewish at three in the morning and keeping me awake. But there you could be screaming anything.

You could be screaming such absurdities as MJ is still the goat. But if it's at three in the morning and it's directed at me because I'm Jewish, and it's not welcome to me, and it's interfering with my ability to sleep, in many ways the actual content of the expression is not as relevant as you might think to the actual harassment claim itself. It's how are you treating me differently and interfering with my educational experience

because of my identity. And that's where these protesters have gone off the rails in a million ways, blocking access, being so loud that you cannot study, targeting and singling out Jewish students as they see them walking around campus. I mean, you could just go and go and go. And then when the universities allow all this to happen,

and even to the extent of, say, denying you the ability to hold your own event because the other side has just gone ahead and occupied the forum, then you begin to see how this is creating just a crisis on campus. And I had some really good questions about some of the differences between this

and say some of the differences between this and say some of the anti-war protests in like 1968. And I said, one of the differences between these protests and some of those anti-war protests, now some of them were unlawful in the extent that they were literally interfering with anybody's ability to get an education on campus. So there's that commonality. But here's what's different about some of these protests. The protesters are engaging in conduct that is anti-Semitic harassment.

It's violating federal law. And so when the university is saying, we're just going to keep letting this happen, what they're doing is they're consenting and then ultimately complicit in violations of federal civil rights law. And so in many circumstances, these universities legitimately don't have a legal choice but to end it. They have to end it or they're going to, as every day clocks by, they are contributing to facilitating complicit in violations of federal civil rights law.

What's sort of interesting to me just as an on the ground observation, getting arrested is not the same as being adjudicated. A lot of these students, when they're saying 200 students arrested, let's see how many are charged. Let's see then how many actually are brought into any sort of adjudicative system, whether plead or otherwise. And then what the punishments are, because what some of the schools are saying is that like calling in the police doesn't matter because nobody's prosecuting them. So they get out and then they just come back and now they're real pissed off like a hornet. Yeah.

Well, that's why you have to do actually Actually, in many ways, the protesters are more afraid of school discipline than the arrest. That's right. They know they're going to be processed, booked, released. Charges are almost certain to be dropped. But if the university expels them, then, A, they don't have an ability to come back on campus, and, B, the consequences for them personally.

This is one of the reasons why some of the protesters and all their spirit of civil disobedience were ultimately protesting for their own amnesty at the end of the day. And were- Don't forget to remove the Sabza hummus from the dining hall, David. That was actually one of the demands

that Northwestern agreed to in order for them to remove their encampment. Free ride for Palestinian students, hiring Palestinian professors, divestment, having, well, in this case, having a student on the investment board so that that student could vote for divestment. It had to be someone from the protest. But the last one cracked me up. Student input into dining hall choices. And I asked a Northwestern student, like, I don't understand, what, they just don't like the French fries anymore?

He said, no, they want Sabzah Hummus removed because it's made in Israel. And I was like, oh my God, they've solved everything. Now all the Gazans are safe because there's no more Jewish hummus in the Northwestern dining hall. Congrats guys, you really made it matter. Well done.

Yeah, yeah. Well, can I read something funny to you? So these things are, these protests are spreading. At University of North Carolina, there was a big fight over the flag where the American flag was taken down. The frat pros, yeah. Yes.

And so have you seen the GoFundMe? No. Phi Kappa Phi men defended their flag, throw them a rager. This is all getting extracology. The person, I think I know who did this, but I'm not going to say the name in case it's not the person I know, but I think you know this person too. But here's the paragraph.

But amidst the chaos, the screaming, the anti-Semitism, the hatred of faith and flag, stood a platoon of American heroes, armored in vineyard vines in Patagonia, fueled by Zen and white cloths. These triumphant Bohemians protected old glory from the unwashed Marxist horde, laughing at their

shrieks and wails and shielding the stars and stripes from Soviet missiles. And the picture, the picture of them holding the flag up. I mean, it does look like, okay, yeah. If you, Siri, select or chat GBT, draw me a picture of frat boys defending a flag. The Iwo Jima comparisons have been making their rounds on the internet as well. You know, the good news politically, poll after poll shows that these students are not representative of their generation as a whole, which shouldn't surprise us, right? Most students of this age, sorry, most Americans of this age are not college students. And most

college students are not elite college students who have the time or risk ability to do stuff like this. So it's a very small percentage. But obviously one that the administration is deeply concerned about because they're allowed, no question. And they are thought leaders within their generation, whether their sole numbers are representative or not. Yeah, and one of the things is they're so, I mean, I'm sure you saw the appeal, the desperate appeal for quote humanitarian aid

for the protesters who broke in. Yes, so they're occupying this building and they said that they didn't have food or water. And so they wanted the university to bring those things to them because they're on the dining hall plan. And it was like, wait, but like if I just like missed a meal, like if I slept through the hours of the dining hall, which happened all the time, it was like my weight loss program naps. They don't like bring me food to my dorm room,

be like, oh, Sarah, we're so sorry that you missed dinner tonight. What would you like? It's like, it's a weird, it was a weird theory even that because you're on the dining plan, that the school owes you food. Yeah. You know what owes you access to food

in a location that the school has already designated to be the place where one accesses food. You're welcome to still go to that place and get food. Feel free. Yeah, you're just gonna be, you'll be arrested and suspended on the way to the dining hall. Or maybe not, honestly.

If they had just been laughing, be like, oh, it's time for dinner? I doubt they would have been arrested. Yeah, it's, and one thing that I just have been trying to communicate to people ever since I wrote my long piece that came out on Sunday is, have been trying to communicate to people ever since I wrote my long piece that came out on Sunday is when these protesters move beyond free speech and they move beyond peaceful civil disobedience, which remember means violating an unjust law and accepting the consequences,

which is the respect for the rule of law inherent in peaceful civil disobedience, and they move on to violating just laws and trying hard to escape the consequences, it's not just some sort of abstract academic thing. They're actually violating other students' rights. They're violating other students' rights. And what if I'm this other student and I don't consent to having my own free speech rights on campus violated? I don't consent to having my own free speech rights on campus violated. I don't consent to having my own ability to sleep or study in the place that I'm paying seventy thousand dollars a year to go. And I feel like there's a lot of elite commentary that views these encampments and all of this as some sort of victimless crime, kind of like a more benign version of just an excessive frat party or something like that.

And they're not, this is not a victimless crime. Every moment that you are violating in this at scale way, these time, place and manner restrictions or disrupting the ability to speak and learn or blocking people's access to campus, you're violating other people's rights. And that is when law enforcement is needed, is when civilian authorities cannot,

or when non-law enforcement authorities cannot protect the rights of everyone in their community. And I'm just flummoxed at the idea that these guys somehow, because their cause is what, just enough, that they get to violate the rights of the rest of the community. They don't, they just don't. All right, last up, a correction and a preview.

So first, a correction. I kept saying Medicare on our last podcast, and I should have been saying Medicaid. And frankly, I'll be really honest, I get the two super confused, and I even have like a mnemonic to help me or not a mnemonic, just a trick, right? You care for old people,

but you aid low income people. So Medicare is for old people and Medicaid is for low income families. So right, someone over the age of 65 probably isn't getting a lot of abortions in the state of Idaho unless there's something real neat in their water. So sorry for that mistake. Also, though, it was fun because one of the corrections came from a friend who noted that when she worked on the Hill for a very senior, well-respected senator who I won't name, she was his healthcare legislative assistant. We were in the midst of the Medicare Part D drug expansion. We were at the end of the bill being on the floor

for two weeks and the vote was approaching. The Senator called me into his office and said, "'So there's a difference between Medicare and Medicaid? "'Can you do me a one pager on what each one is "'and how they're different?' "'So I feel like I'm in good company. "'The people making the laws can't keep it straight either, "'so yay.'"

Last up, David, a preview for next week, because I'm pretty excited. Two things involving federal judges. One, my colloquy with that federal judge about Brown v. Board of Education and originalism has continued. And boy is he making some persuasive points in the anti-originalism camp that I want to share with the group, because right, my pushback was, yeah, originalism has all sorts of problems, but there has to be a better alternative. And he's made a good case. So I want to talk about that.

And two, we will be taught a class by one judge, Kevin Newsome. I'm excited. And he has a whole class that he teaches for law students. I've asked him to teach us one day of that class. Like we're not doing an overview. We're going to actually go day by day, class by class, over as long as it takes if we can. So this class will be the one on jurisdiction stripping

because for those who know their constitution well, the constitution says that the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions and under such regulations as the Congress shall make. So what exceptions can Congress make to strip the Supreme Court of jurisdiction? We'll learn it with Judge Newsom next week.

Cannot wait.