Advisory Opinions - Tennessee Law Drags On

Episode Date: April 4, 2023

The AO train keeps rolling after Saturday’s emergency pod with an episode chock-full of legal conundrums, fatal contracts, and (one) happy ending. -Weird vibes on SCOTUS case about immigration and the First Amendment -Tennessee's anti-drag statutes... (Or: David is very, very tired) -Fox and defamation -A goat’s fatal fate -One commenter comes after David over campaign finance laws -A question concerning personal jurisdictions -A special shout out to one circuit judge (#TeamWillettWranglers) Show Notes: -Video: Sarah Isgur recorded live at Harvard, Disney v DeSantis -Tennessee Drag: Order Granting Temporary Restraining Order Learn more about your ad choices. Visit megaphone.fm/adchoices

You ready? I was born ready. Welcome back to Advisory Opinions. I'm Sarah Isger. That's David French. And we're back at home, David. It was a wonderful weekend. I had a great time seeing you in person. But we got stuff to cover, man. Yeah. Oh, well, but that live podcast was a ton of fun. We had a great turnout, great chapter, Federalist Society chapter. That was a ton of fun. Felt like we gave short shrift to the fertile octogenarian, the precocious toddler. My rule against perpetuities didn't get the full airing that I wanted it to get. But don't worry. I think

we'll get to circle back at some point. And in fact, today, we'll do a little personal jurisdiction, which is kind of fun toward the end, because I got a good question from a listener sort of related to the Donald Trump thing. But frankly, it was just a fun hypothetical. And what better to follow the rule against perpetuities than minimal contacts and purposeful availment, David? All right. So we're going to start with a Supreme Court argument that was about the First Amendment, but it was also about immigration. a Supreme Court argument that was about the First Amendment, but it was also about immigration. Woof. Then we'll do some Tennessee drag, which I think sounds like a great dance,

like the Virginia reel, the Tennessee drag, but it's not about that. Then we'll do the Fox motion for summary judgment order that came out in all of its very lengthy glory. Finally, there's a goat. There's a goat at the center of this whole thing. And it is a bit of a goat rodeo. We got so many emails and tweets and DMs to cover this case. So we are going to talk about the goat. I get it. People are very worried.

The goat's already dead. So that's spoiler alert. Oh, that's well, you just ruined the whole podcast. I had high hopes for the goat. Nope. It ends terribly for the goat. It's a real tragedy. What, you know, longtime listeners know I have extended myself to save goats in the past or a single goat.

You know, it's like one of those movies that the universe works itself out and that balance is restored. You saved a goat. Perhaps it was meant to not be saved. And this goat that was meant to be saved was not saved. And then we'll end with Brad Smith, former FEC commissioner, pushing back on David. We'll see if he was convinced. And as I said, some personal jurisdiction. And we'll end on another happy thing, David, which I didn't even tell you about. It's a little surprise happy thing that'll just, I think, bring some joy to everyone as they start out their weeks.

All right, we're starting with U.S. v. Hansen argued at the Supreme Court last week. This is an overbreath case. And David, we've touched on overbreath briefly, but man, this one's interesting and it's a little messy. So Helleman Hansen was convicted on 12 counts of mail fraud, three counts of wire fraud, and two counts of encouraging or inducing illegal immigration for private financial gain. On his appeal, he argued that that encouragement statute was unconstitutional, that it was overbroad and violated someone's First Amendment rights, though not necessarily his.

This is not a great guy, just to be clear. He was basically defrauding people who were in the country illegally for money, telling them that he could do things for them and get them status and all sorts of things that he absolutely couldn't do. So that's what he was really charged with. But as part of that, there is this statute on encouraging an alien to reside in the United States for financial gain. So this goes to the Supreme Court. And it does have this clash, right, between the sort of deference to the government on regulations aimed at stopping, curbing, etc.,

illegal immigration, and First Amendment, which the Supreme Court, as you've talked about, David, has been increasingly keen on protecting. Yep. What were your reactions on this? Yeah. So this case is really interesting to me because in a real way, it shouldn't exist. And by that, I mean, it's pretty plain to me that the intention of the statute is to prohibit criminal solicitation or aiding and abetting, which is very common in criminal law and generally doesn't raise First Amendment concerns. So if you have a statute that says solicit, if you have a statute that even just says induce, if you have a statute that says aid or abet, and the aiding or abetting includes a component where you're speaking words or saying things to aid and abet the commission of a crime,

it's not really an issue. And to me, the case really turned on whether the word encourage is broader than solicit, than aid or abet, than induce. And from that standpoint, I was convinced that the word encourage is too broad, but I don't have a hard, strong feeling about this because it is so closely tied to traditional solicitation, inducement, aiding and abetting. And there isn't really, and I didn't see evidence that there had been much confusion

about the statute, right? So that's where the arguments sort of fall into these buckets, right? One of the strongest arguments on the government side is this statute has been on the books since 1952, and there was maybe one case in a district court that someone could point to that maybe might have been an overbroad application in the last 70 years. That was a strong argument, I thought, for them. On the textualist side, though, this statute only includes the words encourage and induce. And in fact, Congress took out the word solicit. And let's just do a little cul-de-sac here. So for instance, if I say, hey, David, can you please kill my neighbor?

That is speech, right? All it is is speech. But we criminalize that because that's soliciting David to go kill someone. So we don't protect that speech. And that's the traditional solicitation. And the government was saying, bring the soil with the words encouragement and induce. And I had not heard that phrase before, and now I'm going to use it 47 times this week, I guarantee you. Bring the soil? Yeah. Takes the soil with it. They bring the old soil with them. There was a lot of talk of soil for people who probably haven't done a ton of farming

in their life. Basically, sure, it doesn't include all of the language of traditional solicitation statutes, but encourage and induce are close enough that you just can bring in all the solicitation stuff. But then it turns to, sort of fascinatingly to me, okay, but why are solicitation stuff. But then it turns to sort of fascinatingly to me, okay, but why are solicitation laws different and okay? So for instance, I generally don't just say, hey, David, can you kill my neighbor? Because David would be like, ha ha, no. What I say is, hey, David, can you kill my neighbor and I'll give you $10,000? And in that case, that's much more, A, there's your inducement as well. So it's soliciting plus inducement. And there's sort of a promise of an overt act. Sure, that's still pure speech, but there's an action built into

that speech that's going to happen. Same know, same with bank robbery and all these other things. But this gets to bucket number three. Simply residing in the country, barring some exceptional circumstances, is a civil penalty, right? You're subject to removal and deportation. It is not a crime like killing your neighbor or bank robbery. a crime like killing your neighbor or bank robbery. And so, you know, some of the justices were particularly keen on this, like, well, wait a second. Isn't it odd that the inducement, the speech is a crime, even though the thing you're inducing isn't a crime? Justice Alito then goes back about like, okay, what about encouraging or inducing prostitution in a place where that's otherwise legal or encouraging or inducing

suicide among specifically vulnerable groups of people? Again, them killing themselves is not a crime, but you encouraging them to do so may well be as remember that case of the teenage girl who was charged in Massachusetts. Yeah. Yeah. I remember that. So, I mean, that's sort of where Justice Alito was going. Here's the other part, though, that I found very interesting, David, when I went into this case or into this argument. I thought that this was going to be sort of a pure, you know, you talked about abortion distortion. I thought this was going to be a pretty immigration distortion case. And even though I think that the final vote may look like it's along those lines, it wasn't as immigration distortion-y as I thought it would. You certainly had Sotomayor, Kagan, and Jackson looking like they would like to strike this down as overbroad, but largely because it doesn't

include the word solicit and that if Congress wanted to add that, they might feel differently. You had Gorsuch, who has generally been sort of one of the stronger First Amendment guys, not really interested in the textualist argument here and very much into the like, clearly it brings the soil with it. Yeah. Puts the lotion on the skin. There's no link between those two things, but somehow it worked. It does. And then you had the chief who we didn't hear much from, but probably seemed to be leaning toward the government and Kavanaugh as our center justice. In this case, maybe only the fourth vote. But Kavanaugh, I thought, raising the most interesting hypotheticals, which was and several of the justices then jumping on this.

there's many aid organizations out there that provide aid specifically to non-citizens, people here not legally with no legal status. It might provide them housing or food. And the question is, would that run afoul of the statute? And even if it doesn't, does it chill their behavior or lawyers giving advice? I thought the government had a decent answer, which was there's a difference between doing something that when you just assume the person is going to stay versus doing something where you're actually inducing them to stay. Someone who is here not legally and is starving and you give them food, you're not doing it in the hopes that they stay. You're doing it because you don't want them to starve and you're assuming that they're going to stay and starve. That might answer the sort of

discrete legal question, but it doesn't answer that chill question. Are these organizations now going to be unclear on what the law actually covers? And of course, there's the grandma hypo. the law actually covers. And of course, there's the grandma hypo. Grandma knows that her grandson is here without status. She knows that it's illegal for him to serve, you know, civilly illegal for him to stay. So it's illegal to even tell him to stay. And she does it anyway, because it's her grandson or vice versa. Grandson, I think in the hypo, right? It was grandson telling grandma, you're not a burden. We want you to stay. Your grandkids love having you here. Please stay. I mean, by the text of the statute, assume grandma provides some childcare and other stuff for them, that would seem to violate it.

You know, and that the illegal immigrant is providing some financial help for the household by... Exactly. That's what I mean. Childcare, like grandma helps out with cooking and helping with the grandkids. And she's an integral part of making this whole family work. And so they say, grandma, we want you to stay. Did they just violate this, encourage someone to stay? The government was like, look, that's a hard case. We obviously wouldn't prosecute it. And I was

like, yeah, but that's not really the question. Right. So can I tell you, this is where I am on it. Yeah. That I think as a textual sort of it, just as a, if you're looking at the statute on its face, the word encourage is overbroad. I think the word encourage is overbroad. And I think if the statute was passed right now today, in a weird way, it'd be an easier case to strike down because everyone would be saying, we're passing this to prevent encouragement. And then you'd have an immediate challenge. It would be struck down. But now we have this statute that's just been sitting on the books forever that has 70 years of history of enforcement that's consistent with the way we enforce solicitation laws. And then the argument is, well, it has a chilling effect.

Well, wait, does it though? And so I think that's why when I was reading some of the analysis of the oral argument, they were saying, well, what's really going to be interesting is how does the court treat the concept of chilling effect when you have 70 years of no chilling effect? Which is a really kind of interesting question, but not really the way the doctrine has worked necessarily. We don't revisit 70-year-old statutes and ask whether they've chilled generally. And I thought that the ACLU, who is representing the defendant here, did a nice job laying out the problem with chilling law.

It's hard to prove a chill because you're basically showing that people are acting in accordance with the law might be a chill. How do you show that, that otherwise they wouldn't be? Yeah. And which is why every single sort of over-breath vagueness challenge I've ever been a part of in my career has been a challenge to a newly passed or pretty freshly passed statute that was passed for the purpose of chilling speech. And so you're really able to walk into court and say, look, the whole purpose of this is to suppress conversation on these topics.

And look, the words are broad, et cetera. And here you're walking and you're saying, huh, what looks like happened is that some really smart lawyers took a look at sort of part of the menu of statutes that this really bad dude was prosecuted under. And by the way, he was a really bad dude. He ran an adult adoption ring fraudulently, like gross. And so he's a really bad dude. And hey, look, encourage.

Wait a minute. That is traditionally what you would call an overbroad. That would be overbroad. That would be chilling normally. Here's our argument. And from that standpoint, I can't escape that the case has weird vibes. And I know that's not a doctrine. It's not a doctrine, but it has weird vibes. And I know that's not a doctrine. It's not a doctrine, but it has weird vibes.

I think we're about to make bad law on two fronts here. Or rather, the court's going to have to speak to both of these areas. And this isn't the case that I would want them to speak to it in because we've said before, right? Bad facts make bad law. This is some real bad man stays in jail stuff. Now, regardless, even if the government

wins, this is actually still going to get remanded for a new trial because the jury instructions were certainly not narrow enough on the encouragement part. And the government conceded that, that this was now only at the Supreme Court on the overbreadth question, not on the jury instruction. So it's going back no matter what. He gets a new trial no matter what. But immigration, bad man stays in jail, just not sympathetic facts. But the court is going to speak to two things here that First Amendment folks are going to really care about. One, chilling. How do we think about chilling 70 years later? And how do we look for it, define it, et cetera, when it's not a new statute and we're not doing really hypotheticals anymore, which is what most chilling conversations are

about. Two, and relatedly, when can someone bring an over-breath challenge? So for instance, this guy, his free speech wasn't violated. He was clearly an in, if this said solicitation and had the exact same language as every hitman statute out there, he would be guilty of it. So he's bringing this over-breath challenge on behalf of hypotheticals. And I think there's going to be some conversation in the opinion as well on whether, who gets to bring over-breath challenges in the first place and what percentage of applications of the law must be overbroad. Because in the past, generally speaking, the overbreath has to be a large chunk, right? It can't be some wild hypothetical rule against perpetuity style

where, well, if she has another baby at 86, then this could violate the rule against perpetuities. Like over breath, don't play that game, homie. But is it 20% of the hypotheticals? Is it 50%? And does it matter that this guy ain't close to the line? Right. I think you laid it out very well. And I would say the word encourage, the word encourage, if you're talking about sort of traditionally how we would analyze overbreadth,

it's a bad word. It's a problematic word. And then you can't really, I have a problem with saying, well, it hasn't been abused for 70 years, so it won't be abused. But in our hyper culture-worry time, if the squirrel has found a buried nut in the law, then it can become dangerous pretty quickly.

So I do think the word encourage to me, and it's encourage or induce. You could maybe save it with encourage and induce, but it's encourage or induce. And I think that that word is a problem for all the reasons laid out by the various hypotheticals. I'm really interested in that last point on overbreadth on, is this a proper overbreadth plaintiff? And we talked about that a bit at the University of Kentucky in a similar kind of situation where, you know, who can bring an overbreadth challenge? When can you bring sort of only as applied versus facial versus et cetera, which is kind of a complicated area of law and this may provide some guidance on it. And I could see a court sort of saying, well, we're not in love with the word encourage, but this ain't the right guy. And I could see that kind of resolution here.

But it's a really far more interesting case than I thought it was going to be. And yeah, you know, the hypo you started out with, well, with why don't you kill my neighbor? And then, you know, somebody goes and kills the neighbor. I actually don't think you'd be prosecuted for that. That's like a throw mama from the train hypo. You didn't actually offer anything. You just said, I really wish my neighbor would die. And then Billy Crystal goes and kills your neighbor. Oh no, Danny DeVito. Danny DeVito kills your mom. Billy Crystal's the one who was complaining. Yeah. It's like, I was kidding, man. I was, no, are you kidding me? What? And if somebody says, hey, I'm short on cash for booze,

should I go knock up a CVS? And you're like drunk and you go, yeah, man, go do it. And then he goes and does it. Are you prosecuted? No. But if somebody says, I'm short on cash, hey, here's 50, here's 10 bucks for gas to go do it. You know, it's, it's a, it gets different when you do something. And yeah, it's, it's a, it's a fascinating area of law. And interestingly, you know, if you're talking about solicitation,

one of the key issues with Trump in Georgia would be a solicitation statute, which includes prohibition on inducement. When I've analyzed that situation with Trump, I don't think that he violated the solicitation statute until he threatened criminal prosecution if you didn't do what he said. If he had just called and said, I really need you to find 12,000 votes for me, period, I would have said that's ridiculous, that's absurd, he shouldn't have done that. But I would have been a lot shakier about the prosecuting him for soliciting. But when he said, you know, there's 11,780 votes and essentially you could be in real trouble, that's a different thing.

That's what elevates it. So I find this case utterly fascinating. I do want to make one note for those listening and wondering, because I feel like this will come up in the comment section. And it came up in argument. For instance, in your robbery hypothetical, David, you're talking about before the robbery. I think you could also, and this is sort of hard in a robbery, but you could also talk about it during the robbery, which isn't applicable here, is after the robbery. So after the robbery, someone comes

by your house and says, I just knocked over the 7-Eleven. Can I hide out in your place? And you say, sure. That's not encouraging or inducing a bank robbery. That's aiding and abetting after the fact, which is a separate thing that is not an issue here. And I bring that up because, for instance, as people cross the Rio Grande, for instance, and there's aid organizations there to then provide them towels or food or things like that, that's not really an issue here. Yeah, right. 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?

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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. But David, why don't you take us to do a little dance called the Tennessee drag. So this is an interesting case. We have not talked about the Tennessee drag statute for a couple of reasons. One, I'm kind of tired of the topic, to be honest. If anybody in America is entitled to be tired of this topic, it's me. And then so I'm kind of tired of it. And number two, it's a weird law. So essentially what happened is the legislature, there was legislation introduced

to ban drag shows in public places or places where children could be present in Tennessee. And the law was amended meaningfully to where, obviously under consultation with counsel, to narrow it. So the statute that was passed, unlike a lot of the coverage of it, was not a ban on drag shows. It wasn't even a ban on drag shows where children could be present. So it wasn't a ban on something like a drag queen story hour. What it did is it made it an offense for a person to perform adult cabaret entertainment either on public property or in a location where the adult cabaret entertainment could be viewed by a person who's not an adult. So what is an adult cabaret? What is adult cabaret entertainment? So it's a single or multiple performance by an entertainer that is

quote harmful to minors as that term is defined in Tennessee Code Annotated 3917-901 and that features topless dancers, go-go dancers, exotic dancers, strippers, male or female impersonators, or similar entertainers. So if you didn't follow the statute, you would think, well, they just defined drag as harmful to minors. But that's not it. So if you go and you look at Tennessee Code Annotated 3917901, what it says is harmful to minors means any description or representation in whatever form of nudity, sexual excitement, sexual conduct, excess violent, or sadomasochistic abuse when the matter or performance A would be found by the average person applying contemporary community standards to appeal predominantly to the prurient, shameful, or morbid interests of

minors, B, is patently offensive to prevailing standards in the adult community as a whole with respect to what is suitable for minors, and taken as a whole lacks serious literary, artistic, political, or scientific values for minors. Huh, okay. So what is happening here in plain English is that the Tennessee legislature has banned drag shows that could be seen as obscene. Not that drag is obscene, but drag shows that could be seen as obscene. Not that drag is obscene, but drag shows that could be seen as obscene.

Now, why were those three factors really important? Those are the general three factors that courts use to analyze whether speech or expression is obscene and therefore not protected by the First Amendment. The modification of that is that each line says the four minors part of it. So what appeals to the prairie interest, four minors. So it's a modified version of the obscenity statute. And so it's actually a far narrower statute than its proponents, I think, were wanting. It's far narrower. But that didn't stop a lawsuit. So a lawsuit was filed.

A Trump-appointed judge issued a temporary restraining order, and we'll put the order in the show notes. and we'll put the order in the show notes. And it's a pretty short little order, but he basically makes a few determinations. One, that this is a content-based regulation that has to survive strict scrutiny to be constitutional. It doesn't survive strict scrutiny.

That it is, in addition, that it's vague., and in part it's a, the provision of it where it talks about where minors could be present really is a difficult provision of the statute to interpret. It isn't really a true time, place, manner restriction. It is a, it's so broad that it isn't a true time, place, manner restriction. And that's it. Injunction granted for 14 days, TRO granted, and then the parties are going to brief it again. And I found it to be a pretty normal sort of opinion analyzing a vaguely drafted anti-obscenity law. But it's a closer call for sure than simply saying no drag queen story hour would be. So if you said no drag queen story hour, that's a loser. This is, this is not the same case as the Texas case that we talked about. It's not the same case. Um, and to the extent that there are

defects in the statute, I think they're easily fixable actually. But what the Tennessee legislature did here was essentially try to ban obscene drag performances, drag performances that would be obscene for minors. And so that's the assessment of the case. Sarah, what were your thoughts? Yeah, I actually thought that this opinion was not terribly persuasive to me. thought that this opinion was not terribly persuasive to me. It seemed very much like the judge sort of had the icks about the statute and that a lot of the analysis, you had to sort of assume the icks. Icks is not a term about, I mean icky as a noun. For instance, there's not a whole lot of discussion over why, for instance, this law is vague and overbroad, but Tennessee's obscenity law is not. And nobody's arguing that

Tennessee's obscenity law isn't. And that in fact, the court says that part of the concern is that it's redundant with the obscenity law that nobody thinks is a problem. I mean, maybe this just gets to a different part of the law, but if a legislature passed a law that was exactly redundant with a current law, we wouldn't strike down that law. We just wouldn't give it any additional effect compared to the law beforehand. You don't strike it down as vague and overbroad. Now, the difference here is that the obscenity law is super vague and broad, as in it's just all things that are obscene, basically. This gives examples of things that might have obscenity in them, including drag shows particularly. Okay. I don't see an actual problem to that if you're giving examples and that perhaps nobody had fully understood that drag shows could have obscenity in them.

So that's one problem. The other one that the court seems to have, so I mean problems that the court has. I'm unsympathetic to the redundancy argument. I'm unsympathetic to any distinction between this and the current obscenity law. The next part is that, or basically, or any other place, you know, fine. So for instance, the court gives these hypotheticals. Plaintiffs argue that this language could mean just about anywhere, the court agrees. What exactly is a location on public property? Well, first of all, I think that one's pretty clear, sir, your honor. Let me finish the sentence, though. What exactly is a location on public property or a location where an adult cabaret entertainment

could be viewed by a person who is not an adult? Does a citizen's private residence count? How about a camping ground at a national park? What if a minor browsing the World Wide Web from a public library views an adult cabaret performance? Ultimately, the statute's broad language clashes with the First Amendment's tight constraints. Some of those aren't a problem, David. For instance, a public library does have to have some things in effect so that minors don't go to the public library to view pornography.

That's not a First Amendment problem. What are they talking about? Well, the issue there would be the obligation is on the part of the public library to shield against obscenity, whereas the statute prohibits the performance itself. So that's the problem. So then you have this third thing that I am sympathetic to, that in the obscenity statute, it is the facility that is held responsible,

and this is the performers. That could lead to some problems. So here's the fix for the statute, I think. It's really pretty easy. And the fix is instead of where children could be present, where children are present. And the other thing about the opinion that was, I think, interesting, because this goes to how much do we look at intent when a statute is passed? In other words, if we have evidence that the statute is aimed at constitutionally protected expression, even if sort of on its face, it doesn't target constitutionally protected expression, what do you do? And this is a not as easy a question as you might imagine.

So for example, if you go with the Disney and the Reedy Creek Improvement District, revoking the tax preferential status from Disney in isolation, there's nothing on the face of the statute that says this is a violation of Disney's isolation. There's nothing on the face of the statute that says this is a violation of Disney's rights. But if you have evidence that DeSantis and the Florida legislators are doing this because of Disney's speech, then you've got an issue. So what the judge did here was show that at least one of the legislators believed that this statute would be aimed at the kind of pride parade or pride conduct that he had in his own community when the statute actually doesn't on its face cover that kind of conduct. So it seemed to be aimed straight at-

And that may or may not have even been obscene. Right, right. He just didn't like it. It didn't like it. Didn't like it at all. But the statute, this is different from a Reedy Creek situation because the statute is specifically about speech. And so if you're going to be applying that statute to speech, you're going to have to confine the application to the statute, which is why I thought that that element of the opinion was less compelling than the time, place, and manner element, where I bought the idea that

the word could be present, and the phrase could be present, and the prohibition on the performer, as opposed to the location of the performance, in other words, the venue hosting the performance, that's where you have that real overbreadth. It isn't a true time, place and manner restriction. How do you know if children could theoretically be present? It's a very fixable part of the statute. The problem is from the standpoint of people who are really aiming and really don't like drag, et cetera, is it doesn't ban what they want banned. It's not banning the thing that they really want banned. It has been changed to ban, to attempt to ban stuff that is covered by an obscenity statute that, as you said, has not been challenged. And I think even one or two word changes would render the statute pretty constitutional.

favored by judicial conservatives quite often, is favored, I think, by judicial liberals quite often. And it gets to my point about the X, that if you know the judicial history that was, sorry, the legislative history, I mean, in the legislative history of basically trying to ban drag, knowing that you can't, adding the word obscenity, not limiting it, having the could language, that gives you the Xicks from a First Amendment standpoint. Right. And so then you're like, well, I don't like this. There's probably something wrong with it because they intended something to be wrong with it, basically.

Whereas the statute itself, I think, has fewer infirmities than the icks from the legislative history would actually lead you to believe. And here's the way, let me try to put this as clearly as possible because this has been kind of complicated. The statute that is defining obscenity is not a statute that's defining obscenity for everyone. It's defining obscenity for minors. So in other words, that's what the, at the end of each one of the four minors, four minors, four minors. So if it is not for minors, the expression is not obscene. So it's protected by the first amendment. So it's not a situation in which you're banning what was already banned entirely. So that's why the could be present language is so important.

If this statute was banning conduct that would be banned for adults, it's just banned, right? Could be where minors could be present or not doesn't matter. It's just banned. But the obscenity statute at issue here was a specialized version of obscenity for minors that doesn't apply for adults. And that's what the could be present language was so was less convinced by the content aspect of it. And I was more convinced by the overbreath. And that's why I say you can fix this pretty darn easily by saying where children are present. And there, that's easier for a performer. They could walk out and they could say, are there any kids here? You need to leave. And then they can do their performance. here. You need to leave. And then they can do their performance. I think that you've convinced me on the could be present. Congrats. Good argument. All right, let's move on to Dominion versus Fox summary judgment opinion. And as always, I have to include the disclaimer. My husband represents Fox News in this litigation. So to the extent you want to discount everything I say, absolutely feel free to do so. You'd be shocked how little he and I discussed the actual merits of this case and more me complaining about the time that he spends on it. But, you know,

that's a different conversation entirely. All right. So, David, given all of that, why don't you start out with your thoughts on this very long 130 page MSJ? attempt to dismiss the case. So that's easy to state. Fox News, Fox Corp tried to dismiss it on multiple grounds. The court denied the motion for summary judgment. That was not surprising to me remotely at all, period, end of discussion. Not super controversial to me. Now, what was interesting was that the court, and when I first saw this, I thought, huh, what happened here? It said it granted in part and denied in part Dominion's motion for summary judgment. And the immediate thought that I had was the court has held Fox liable on at least some counts of Dominion's complaint.

And that what you're going to be having next is nothing but a damages trial. But that's not exactly right. So what it essentially did was granted Dominion summary judgment essentially on the falsity of many of the statements that Fox made. In other words, that it's not going to be a jury question

as to whether they're false. And what's important, denied Fox's defense to some of that falsity on the basis of, for example, quote, fair reporting privilege. And so what is now up for the jury is not the falsity, it is the actual malice. Was this intentional or reckless? And so that is what the jury is going to be decided. And the legally interesting part of this is not that the jury is going to be deciding actual malice. The legally interesting part of this is the part of the judge's decision

that detailed Fox's defense that was essentially this. What do you expect from us as a news organization when the president of the United States is making claims, when there's a major and some of the most prominent litigation in the United States is making particular claims? Don't we as a news organization have, and not just the privilege to cover the news, but in many ways, the obligation to cover the news. That's the essence of my... Sarah, tell me if you think I'm misstating any of that. And I think that that is Fox's actual strongest argument.

And the court said, nah, dog. And that's going to be, to me, the much more interesting legal question about this case going forward than really anything else. But I do have, I want to get your reaction to sort of that explanation of it. And I do have a question for you because I know you're friendlier to the Fox fair reporting defense maybe than I am. Yeah. So the parts that are interesting to me and the parts that I think have Supreme Court QP abilities, the existence and scope of the fair reporting privilege, the existence and scope of the neutral reporting privilege, the existence and scope of the neutral reporting privilege. And this one, I think, hasn't gotten a lot of attention. But when you look at what

the defamation is, how narrow versus how broad do you actually look? So for instance, and I'm going to make up these numbers a little bit here, Dominion lists, you know, 115 statements on Fox News, and they're like one sentence statements. But the judge in the MSJ order puts them in like clumps of segments of shows. And, you know, it's sort of like taken in totality. this is defamatory. There are sections about like, well, Fox didn't push back. For instance, the Fox employee in question didn't push back, things like that. I don't want to spend a ton of time on that, but I just want to flag that that is sort of interesting. Is it the individual phrase itself or is it the totality of the segment that can be defamatory? I wouldn't be shocked if that ends up going up as well.

But David, you're of course, I think exactly right that the focus, and certainly if you're another news organization, the focus should be on that fair reporting privilege and the neutral reporting privilege. So one, I just want to read from the MSJ here a little. The neutral report privilege bars recovery for defamation when the challenge statements, even if defamatory, are newsworthy. The sheer making of an allegation may be newsworthy. Edwards, the case that set forth the doctrine, opines that the First Amendment does not require that the press suppress newsworthy statements merely because it has serious doubts regarding their truth. Where a journalist believes reasonably and in good faith that his report accurately conveys

the charges made, they will be immunized under the neutral report privilege. I mean, David, that's an incredibly broad privilege. It basically ends defamation for journalists largely as long as they are basically giving someone else's voice. So anytime you have a guest on TV or you're describing what someone else said, anyone else's argument, all of that in theory could fall under this neutral report privilege. Under the fair report privilege, that's about lawsuits in particular and court events. I think that one can have a little bit of side eye toward neutral report privilege and still think that fair report privilege should be robust. If something is actually going on in a court, you want journalists to be able to report on that without being able to say like, well,

it might be defamatory. So now we can't even report on this thing that's going on in a court hearing. So I think you could, in sort of order, really want a robust fair report privilege, a weaker potentially neutral report privilege. But I have to say on the neutral report privilege, let me give a little bit of a defense of it. The First Amendment separately identifies freedom of speech and freedom of press. And so in order to be a true conservative on these matters, you need to give both of those words meaning that are distinct from one another. And I think that's where you could argue the neutral report privilege has its birth, is this idea that the First Amendment does protect press separately from just speech. So there must be some privilege that comes with the media. And then there's the very practical application, David, which is, and I've been stunned about the focus from other

news organizations on this case, which seem to forget that they are also news organizations and how this could affect them. Having Michael Avenatti on your station would be protected under the neutral report privilege in a way that it would not be under defamation law without it. I mean, more immediately, the young woman who is a producer at Fox News and has now sued Fox related to this litigation and is arguably defaming people who work at Fox News, has been all over some of the other networks talking about her lawsuit. So that would be privileged under the fair report privilege, if you think there is one.

And there's just been no acknowledgement of the irony of these news organizations being like, yeah, F Fox. Especially this one lawsuit, because it's so funny to talk about a lawsuit related to this lawsuit and not bear in mind why you're getting to talk about it. I think the way the judge would answer that and the way Dominion would answer that is they would say, totally get it. Unless there is a text chain at MSNBC saying, Abby Grossman, I believe that's the name of the producer, Abby Grossman is completely nuts. Everything that she's saying is totally and completely false. And we wouldn't ordinarily put her on, but our viewers love to hear what she has to say. But why is that relevant to defamation? has to say. But why is that relevant to defamation? Because you're knowingly, so this is what the judge basically is saying, like, okay, wait a minute. How does New York Times v. Sullivan

interact with this argument about neutral reporting or fair reporting? So what New York Times v. Sullivan says is, actually, you got really broad ability to broadcast even stuff that is about the Dominion or about other public figures or public entities, even stuff that is, you're negligently putting on air false assertions. true backstop for the First Amendment in this circumstance is New York Times v. Sullivan, that if you're going to knowingly broadcast what you're going to broadcast, what you know to be false, and you're going to do it in such a way that you're essentially allowing the, you're delegating to your guest the message that you're trying to send to your audience to make a particular point, then you've got New York Times v. Sullivan is all the defense you need. Okay, but, and I'm taking this from the MSJ order, Fox News theorizes about what limiting the press on reporting newsworthy allegations would look like, posing, for instance, that if there were

no neutral reporting privilege, CNN could face liability for reporting Governor Andrew Cuomo's allegations that the women who accused him of sexual assault were liars, since some CNN editors undoubtedly believed the government's accusers. How is that not exactly your version, David? That like, yes, some people no doubt do think that this producer at Fox News isn't telling the truth or think she's nuts. There was a Twitter thread with all sorts of her emails from the Dominion lawsuit that had already been publicly disclosed. And I think the CNN example is pretty interesting. They're putting Andrew Cuomo's allegations,

his defense, his statement that these women are simply lying when I'm absolutely certain that there are emails flying around that are like, puff, puff, no way. Believe all women. This is ridiculous. Maybe we shouldn't even air this.

And then they decided to air it anyway. Maybe because they have Chris Cuomo on. Maybe because they think that their viewers really, really like Andrew Cuomo.. Maybe because they think that their viewers really, really like Andrew Cuomo. And remember there was like the, how did they use the, they created a word that basically meant a Cuomo sexual, right? Their viewers are Cuomo sexuals and don't want to believe this bad stuff about Andrew Cuomo. That seems pretty similar. Like, you know, Andrew Cuomo. That seems pretty similar. Like, you know, why is it different? So Dominion did not sue Fox for covering the lawsuits. So it sued specific,

it sued over specific incidents related to the coverage of the lawsuit. So in the hard news side of Fox, where they covered the lawsuits and they would cover the allegations and cover the pushback and played it straight, That's not part of the lawsuit. What's part of the lawsuit is the opinion side of Fox that was trying to intentionally put forward Sidney Powell, Rudy Giuliani, etc. And the key was, was that to cover the lawsuit or to give them a platform? And I'm totally fine with that distinction. And I think that is a key question, but it's not the question that was in the MSJ order

where the judge basically says that there is no neutral report privilege, that doesn't exist, which is separate then, it shouldn't apply here. Right, no, I agree with you on that. Now, here's the interesting thing, Sarah. There's been a lot of attention paid, properly so, to this fair report,

neutral report privilege, especially when it comes to the guests. If you're suing a news entity for what the guests say, that's a bigger problem. But Fox could win on everything that the guests said and still lose the case because of what its host said. Totally. And I think that's where you get to the difference, my other bucket there, which is Dominion separated out, again, 115, I'm making that number up, 115 defamatory statements. But the judge clumped them together where the host and guest all form one defamatory segment. where the host and guest all form one defamatory segment. And in some of those cases, the host is just asking questions in those segments. And again, David, that's why I think it's interesting of whether you separate them out or whether you don't. Because I think for other news organizations,

that will be highly relevant. Maybe the host just asks, so what are the allegations that you're making? That's interesting. Do you have evidence for those allegations? But what the guest is saying in between those questions is wild, crazy, defamatory stuff, and the host knows that's going to be their answer. Is then the whole segment defamatory? Or do you have to just use the guest defamatory statement?

And will those then get thrown out on a neutral or fair report privilege? Yeah. No, it's a fascinating case, and I could easily see an outcome where Fox is held liable for the actual statements of its own hosts while still the parts of the reporting privilege are preserved, especially with regard to guests, or to hard news reporters relaying what allegations have been made in a complaint, but making it clear while they relay it that these are mere allegations rather than going as far as some of the hosts went to endorsing the allegations. So Lou Dobbs is a problem man in that case.

Unquestionably. But I think what's odd is on a summary judgment, in theory, what should have happened is that the pure guest statements in a different version of this case, let's say the CNN Cuomo example, the pure guest statements would have been thrown out and you would have just kept the host statements to move forward to trial. But that's not what happened here. None of the statements got thrown out. I want to read you just as examples. This is a from Sunday Morning's Futures broadcast. I'm going to take out what the guest says and only read you what the Fox employee says. And again, I think it's worth... I'm not saying this is a assumption based on evidence, but I think for our purposes, we should assume that the host has very good idea what the guest will answer. Okay. But nevertheless, I'm going to skip what

the guest says and just read what the host says. Sydney, I want to ask you about these algorithms and the Dominion software. Sydney, we talked about the Dominion software. I know that there were voting irregularities. Tell me about that. And the other statement from the host, I've never seen voting machines stop in the middle of an election, stop down and assess the situation. That's it. That's all that the host says in that case. I know that there are voting irregularities. Yep. Nope. I agree. Like that's, yeah. But I mean, and we've talked about this before, like that's a, well, that's a little messy in the sense that voting irregularities can cover nothing. You know, like there's, there are of course always voting irregularities, but I agree. So then it's like,

is it the statement? Is it, I know there were voting irregularities, which actually didn't implicate dominion or is it the segment? And that's why I think that's an interesting, going to be an interesting question moving forward. Yeah. I think there's a clean part of this case, which is related to the Fox news hosts declaration of false, false declaration of fact. And there's a messy part of this case. And yeah, absolutely. All right. Next up, we've got the goat rodeo. David, this is a real story of woe here. It's a crazy story.

There has been a federal civil lawsuit filed alleging 4th and 14th amendment violations related to Jessica Long, who is mom and daughter, who is nine years old and is referred to by her initials because she's a minor. She was in the junior livestock auction in which she raised a goat. auction in which she raised a goat. The 4-H program takes 7% of the sale. The kids get to keep the rest. So you've got a purchaser, the auction that gets 7%, and the kid that gets the 93%. And by kid, you don't mean the young goat. I mean the child, the human child, as opposed to the other kid that we're going to talk about named Cedar. Okay. Our minor, EL, gets very attached to Cedar. She goes through with the auction,

and Brian, who's a state senator, pledges $902 to buy Cedar. But EL is despondent, won't leave Cedar's side, is sobbing, etc. Mom tries to step in and basically says she will pay the 4-H auction their $63, which is their 7% of the sale. Talks to the state senator who says he will not resist efforts to save Cedar from slaughter. She even offers to let the Fair Association take the entire $902. to let the Fair Association take the entire $902. She notes that under California law, of course, a contract of a minor may be disaffirmed. It's very hard to contract with a minor, actually. And in this case, maybe there's a question of whether the contract is with the minor or the mother, et cetera. That's a contract question. She's not denying that they are trying to breach a contract, right? And this is a money issue at this point. They leave the auction with the goat. They do not bring the goat home. They basically

go hide the goat. The auction doesn't care about the $902 or the $63 that they've been offered. And here's the email back. Please understand the fair industry is set up to teach our youth responsibility and for the future generations of ranchers and farmers to learn the process and effort it takes to raise quality meat, making an exception for you will only teach our youth. They do not have to abide by the rules that are set up for all participants. This is under the teach them a lesson law. So the fair person decides to go to the police under grand theft, larceny, that the goat is stolen. The Shasta Sheriff's Office seeks and receives a search warrant. And remember, this is now signed by a neutral magistrate as well. Two officers then drive more than 500 miles to go and seize the goat, but the goat is not at the place that they go and try to seize it.

After searching that place, the officers drove over to Sonoma County, found Cedar, and took him from the farm, even though that property wasn't listed on the warrant. In a court filing, the officers contend that no warrant was necessary to retrieve Cedar at the Sonoma farm, as they had consent from the property owner to retrieve the goat, which is also interesting and going to be a fun discussion at some point. Okay, then now Long, the mom, claims that they were required by law to hold Cedar or deliver him to the magistrate so the court could determine Cedar's ownership, right? You know, someone just alleges grand theft. You don't take their word for whose car it is. Someone just alleges grand theft.

You don't take their word for whose car it is. Instead, they independently deemed unknown third parties to be the owner of Cedar, delivered him back to the fairgrounds. Nobody knows what happened to Cedar, but Cedar is presumed dead. Man. So she's suing the three officers involved, alleging Fourth and Fourteenth Amendment violations

and seeking damages. David, oddly, this ties in a little bit to our conversations about those First Amendment alleged violations down with the Facebook reporter and with that other Facebook case up in Ohio where there's a warrant, it's signed by a neutral third party, you've got a whole bunch of other people involved who don't where there's a warrant, it's signed by a neutral third party, you've got a whole bunch of other people involved who don't think there's a violation.

I think it's going to be pretty hard to win this case. I think it's absurd that the police took the time to do this. I think that saying that there was theft of the goat is extreme, but not 1983-able. Right. Right. It's, I mean, you know, I'm never, I'm going to be so reluctant to disagree with any of your legal assessments regarding animals. I'm so sad. I think it's ridiculous. You approach it with a particular interest and passion. And so, yeah, it's crazy. Can you

imagine though, you're a cop and you've received your instructions for the day to drive what, how many miles did you say? 500. 500 miles to go retrieve cedar. And cedar's not even in the place that you go and you keep going? I know, but hey, you've been given your orders. You have your warrant. You go do it. At some point, has anyone even checked

that they got the right goat? Maybe cedar's living his best life and they picked up penny instead, you know? Yeah, yeah. Who knows? Who knows? But yeah, not every wrong has a legal remedy, I think is the sad, sad answer to this one. And honestly, it gets, David, this is a

point you've made before about people just conducting themselves in a better way. I actually think that the fair, I mean, the auction people, the 4-H people here, the one who filed the grand larceny claim, I take her point about teaching a lesson. If I make an exception auction people, the 4-H people here, the one who filed the grand larceny claim. I take her point about teaching a lesson. If I make an exception for you, then all these kids are going to get attached to their animals and we auction them off. Money is bid. And then we're doing take backs at the end. I get it.

But you teach them a lesson through the civil lawsuit that you file about breach of contract. Right. You don't get the police involved and go seize a goat and slaughter it. I mean, that's just weird and a poor use of resources. Yeah, it's weird. It's cruel. It feels really cruel to me, but I'm with you. I'm with you. Lawsuit over breach of contract. Yeah. Should we talk about Brad Smith, our friend? Yes. Brad Smith, former FEC commissioner. He in 2018 had written that Michael Cohen was pleading guilty to something that was not a crime. You disagreed, or at least were like, I don't know. I'm not convinced. Disagree, let's say. So Brad Smith, I will read his Twitter thread and then we will get your

reaction. I appreciate David French and Sarah Isger giving me an extended shout out during the Trump indictment discussion on advisory opinions. I want to take the FEC issue up again with David because I respect him and will need his pro first amendment voice in future fights. David questions the wisdom of the indictment, but believes that federal campaign finance law was violated by Trump orgs payments to Stormy Daniels. And he's got precedent on his side. The district court judge let basically the same theory go to trial in the John Edwards case. The theory is simple. Federal law defines a campaign contribution as anything, quote, for the purposes of influencing an election for federal office. Hush money payments to Daniels were for the purpose of influencing the 2016 presidential race, and so is an illegal and unreported campaign contribution. I think that's wrong. First, note that SCOTUS has long held that

the Federal Election Campaign Act must be interpreted narrowly and objectively to avoid vagueness. So though expenditure is defined under FICA as anything for the purpose of influencing a campaign, in fact, per Buckley v. Vallejo, numerous other decisions, expenditure is given an objective term unrelated to the subjective purpose of the spender. To qualify as an expenditure, for example, public communications must include express advocacy or its equivalent.

That means words such as vote for, elect, defeat. If I pay for an ad saying Donald Trump is a ding-dong daddy from Dumas Bay, it doesn't matter how much my subjective purpose is to get him elected with that ad. How did he read that sign in my yard? It's amazing. I also like describing people as ding-dong,

so it works out so well. Similarly, if I give money to a group, say the NRA, hoping with the purpose of influencing the next election, it's not a campaign contribution, though under David's theory, it would meet the language of the statute. Second, the statute makes clear that not everything done with the purpose of influencing an election is a contribution or expenditure. As Sarah noted, many things done for the purpose of influencing election are specifically excluded from the definition.

Buying better clothes, getting a $600 haircut, tooth whitening are not expenditures, even though you're doing it for the purpose of influencing an election. To me, the best analogies might be giving to charity or settling lawsuits. Either might be done by a candidate to better his image, and so with the purpose of influencing an election, but neither is an expenditure. Note that, like the Daniels payment, neither is a pre-existing legal obligation on the candidate. The candidate chooses to pay them and chooses to do so precisely for the purpose of influencing the election. What creates the obligation is not the campaign for office. Third, the FEC regulation specifically rejected an approach that something that is done primarily for the campaign can be paid with campaign funds. Rather, the obligation must exist only because of

the campaign. What does this mean? Well, people pay hush money even if they're not running for office. They buy clothes, they get haircuts, they settle lawsuits, they make charitable contributions. Maybe not the specific person or the specific expenditure, but if someone does any of these things, we don't intuitively think it is a political campaign expense. On the other hand, a person doesn't hire a campaign manager unless he is running for office. He doesn't produce ads saying, vote for me, doesn't commission polls, doesn't rent a campaign headquarters, doesn't pay an accountant to file FEC reports unless he is running for office. That's the objective standard that A, is certainly consistent with, if not dictated by the statutory

language. B, the FEC has written into the regs, and C, the Supreme Court has insisted upon due to the important First Amendment rights involved. So subjective purpose doesn't really matter. The big issue is freedom of speech and freedom to campaign. For the past 30 years, most of the constitutional fights over campaign finance law have been about beating back efforts to extend the law's reach into more activities. The crucial weapon for First Amendment advocates has been to insist that the law provides and the Constitution requires clear and objective standards. Fortunately, the courts led by SCOTUS have agreed more often than not. I think they'll agree here, too.

David, what say you? So I think he makes very compelling arguments and very good arguments, as I said before, when we first got into this in 2018. My response is more this. I'm going to agree with him about federal campaign finance law. As a general matter, I want less regulation of campaign-related speech. So if I'm crafting First Amendment jurisprudence, I'm sweeping away a lot of federal campaign finance regulation, a lot of it, because political speech is core protected speech under the First Amendment. I mean, this is the heart of what the First Amendment is about. Now,

I have not been drafting these Supreme Court decisions, nor have I been drafting federal law. And where we are now in the law, the best available evidence that we have is that this is going to be enforceable. That's the best available evidence that we have, even if it should not be. Let me use an analogy to a hot-button topic we've talked about in the recent past. The Twitter files and the government asking Twitter and Facebook to take down content. Now, to what extent is that a First Amendment violation? And when you dig into the actual case law regarding whether it is actually coercive, when it becomes coercive as opposed to suggestive for the court to ask for censorship or to ask for a private entity to censor, the law is really permissive towards the government.

And we've talked about this NRA case that I would like to see the Supreme Court take cert on, where New York state authorities who had regulatory authority over banks were saying, hey, you know, you might should consider whether you should do business with the NRA in a formal guidance letter. And that was considered not coercive. And so I disagree with that decision. But if I'm talking about and if I'm saying what can the government do and what can it not do, I've kind of got to go with the best evidence of where the law is. kind of got to go with the best evidence of where the law is. And I think that's where Brad and I might disagree more than anything else is, is that current understanding of the law, under which Edwards was prosecuted and under which Cohen pled guilty, is that going to be valid?

And he says, no, and it shouldn't be. And I say, I think it might be. But at the same time, I'm with him on, I don't want campaign finance law to be as broad as it is. So it really is, I think the difference between Brad and I isn't so much about what should campaign finance law be. It is, what is campaign finance law now and is that enforceable? And that's, I think that's the difference that we have. And I say, under what campaign finance, the best evidence of what is enforceable under campaign finance law now,

Trump has jeopardy. But as I've said before, shouldn't, he had jeopardy with the feds, but he shouldn't have jeopardy with a state or a local prosecutor applying this federal statute. Is that clear as mud?

Or have I? Murky, mur I... Murky. Murky. Murky. Silty. Yeah. Yeah. No, but I appreciate all of that.

I mean, I think you're wrong. I'm like hardcore Brad Smith on this. Team Brad. Totally team Brad. Like I couldn't, in every word that he says, I am cheering. But I take your point. I take your point. Yeah, but we'll put a link to the thread and I would urge you to read it.

Like Sarah read it, but it's just take it in with your own eyeballs. He makes a compelling argument. All right, we got a question from a listener that I thought was worth some discussion. So apparently, I'm reading the question now. So apparently Trump is being investigated for possibly breaking a Georgia law

about convincing someone to commit election fraud, which allegedly occurred during his phone call. Since Trump obviously wasn't in Georgia at the time of that phone call, why would he be subject to Georgia law? If I'm in Florida and I've never set foot in, say, Oklahoma, I can apparently break an Oklahoma law while on the phone with someone in Oklahoma and be indicted by Oklahoma, even if the Oklahoma law I broke isn't a law in Florida? Yes. So that's the short answer. But it's raised all these other hypotheticals that I think are sort of fun because personal jurisdiction, the idea of who has jurisdiction over you in the civil context gets a ton of attention. There's a three-prong test under international shoe in the civil context gets a ton of attention. There's a three-pronged test under international

shoe in the minimum context and the purposeful availment, but it doesn't get a lot of attention in the criminal context. And so I think what makes the Georgia case for Trump very easy is that he knew he was calling a Georgia state official. Therefore, he was purposefully availing him of Georgia laws at that point. And more to the point, Georgia as a state has an interest in what Trump was trying to do, as in he was violating some Georgia state sovereignty. And I mention that because let me give you the alternative hypothetical. Trump calls Raffsenberger, a Georgia state official, to say exactly what he said. But that day in question, Raffsenberger happened to be giving a speech at Harvard, and he was up in Massachusetts the day of that call.

Can Massachusetts try, you know, indict Trump for violating Massachusetts election law? No, because Massachusetts as a state doesn't have an interest in what Donald Trump is saying to Raffensperger about Georgia election law. So I think only Georgia would still have an indictable offense under that hypothetical. But under the second hypo that you gave about you're in Florida and you called someone in Oklahoma, yeah, yeah, you could be indicted by Oklahoma for that. Now, it does get weirder as we deal with the internet, but that's largely been resolved at this point, David. Basically, if you commit a crime on the internet, you sort of knew that somebody anywhere in any state could be reading that thing. And so

you have availed yourself of the laws of all 50 states for what presumably is usually fraud, frankly. But yeah, it's kind of weird, right? It's a little different than what you might think. And it's a little stronger on the side of the government than it is in the civil context, where an individual is dragging you into court in a state that you haven't been in, you do have to show a little bit of a heightened, why are you able to sue me in Oklahoma if you live in Florida? David, any additional thoughts on that one? No, I thought that was a great summary. And I loved the question because unless you've really been marinating in this stuff,

it's an actually quite sensible question. If I'm sitting in Washington, D.C., how can I be arrested in Georgia when I didn't actually commit the crime while I was in Georgia? It's a good question. It's a good question. It has a very good explanation, but it's also a very good question. David, we're going to end on a little bit of a feel-good note here. I think you know and have spent some time with Judge Donny Ray Willett on the Fifth Circuit. Yes. He has a fascinating life story, and I encourage you all, there's some stories out there about him, but he was adopted as a child and his adopted father died when he was only six

years old. He was raised along with his, um, his sister by, uh, their mother who waited tables at a nearby truck stop out in Coffman County, Texas. He was the first in his family to, um, graduate high school., of course, has gone on to be a federal Fifth Circuit judge and is just this amazing, wonderful story, setting aside anything about jurisprudence or anything else. He's also just a deeply wonderful human being and father and friend. But David, I bet you don't know that an elementary school out in Coffman County, Texas, has been named the Donny Ray Willett Elementary School. They are finishing up their first year. And I just thought it'd be fun as they finish up their school year in the next few weeks to give a shout out to the Willett Wranglers. We're cheering for you, Willett Wranglers.

Love it. I'm so glad you did that. And when are we going to get judge willett on the pod maybe maybe i'm doing this like maybe this is the solicitation this is the inducement many people have blazed the trail for you judge willett like we've had many people so i'm not aware of another uh school named after a circuit judge while they're alive i just thought it was a very cool it's neat honor and i love the willett wranglers that's a great little name for him so yes again if there's any willett wrangler or willett wrangler parents listening to this

we're like your official podcast like we as far as we're concerned, no matter who you play in any sport, in any competition, we're on Team Will at Wranglers. So consider us in your corner. So I know we're at the end of the pod, but I do have a question for you. Yeah. Are you watching the new season of Succession yet? I am. I don't like it. You don't like it?

No. What? I don't like it. You don't like it? No. What? Because my next question was going to be, if so, how glorious is it? No, I don't like the season at all.

I think it's like redundant, repetitive, pointless, annoying, all the bad words. Really? Yeah. I would, I mean, it's got the same kind of like content that the previous seasons have, but it's just as good as like the second bite of ice cream. I don't say this second bite of ice cream is redundant. I say it's just as good as the first bite, even if it's the same ice cream.

Except it's not the second bite. We're on season four or five? I'm still, I like four or five, six, seven bites of ice cream. I don't think it's a bite either. I think it's the like fifth cup of ice cream. That's exactly the same. No, I, yeah, it's losing me. I'm glad it's the last season.

I'll say that. I laugh out loud between eight and 12 times per episode, at least. No, I got into Shrinking, which was an Apple TV show with Jason Segel, which I think is Ted Lasso-esque and delightful. It just wrapped. But also, David, I am into another Apple TV show that is ongoing called The Big Door Prize.

And it's sci-fi-y, but sci-fi is hard to capture because sci-fi just means something that didn't happen in real life, but it's not sci-fi. Basically a machine shows up at the local convenience store and it will tell you your life's purpose. And so in this small town, everyone is being told their life's purpose and it's pretty delightful so far. life's purpose. And it's pretty delightful so far. Oh, interesting. Okay. So I have my suggestion, which you may discard since I like succession. So you might be discounting my judgment, but it's a British crime drama and it's on HBO max and it's called CB strike. And it's based on a series of detective novels written by J.K. Rowling. And started in BBC, has come to HBO, and it's really good. It's really good. And we started that right after we

finished the show Rectify, which I can't believe we've not talked about rectify on this podcast because a it's beautiful amazing incredible gut wrenching television b set against the backdrop of a vacated death penalty case where the actual guilt of or innocence of the uh of the person freed from death row is in very much doubt and one of the questions hanging over the entire series is whether he'll be retried. And you go through the whole series and it's a question in your mind, is he or is he not innocent? And it's so good.

It's one of the best. It's not in my Mount Rushmore. It hasn't knocked off one of the four, but it is in the top 10. Okay, okay, good to know. And I think you'd like him. four, but it is in the top 10. Okay. Okay. Good to know. And I think you'd like them. I think you'd like them. All right. All right. That description reminds me a little bit of that Hugh Grant show where you're not sure whether he's guilty, etc. The undoing. Yes. The undoing. Yeah. I love the undoing. I loved it until the last 10 minutes.

Yeah, I love the undoing. I loved it until the last 10 minutes. Nope. The last 10 minutes made it great. I think I remember we fought about that. Yep, we did. Yes. We did.

We're not going to revisit it. All right. With that, thank you for joining us. Remember, as always, you can hop in the comments section by becoming a member of the Dispatch. And otherwise, we will talk to you next week. Not next week. Very much this week next week not next week very much this week