Advisory Opinions - The Anti-Episode

Episode Date: January 9, 2025

Today’s podcast is all about the antis: anti-SLAPP, anti-masking, anti-indoctrination, anti-retaliation, and anti-corruption. But before all that, Sarah Isgur and David French kick things off with the latest news on President Donald Trump’s sentencing in his New York criminal trial. The Agenda: —Does Donald Trump have citizen-plus status? —David is somewhat of a SLAPP expert —Does Arkansas care for LEARNS? —Is face-masking protected? —Free Speech timeline —Campaign finance changes in Oxnard —Cyberbullying, harrassment, and student council drama Join us for a live taping of Advisory Opinions! Sarah Isgur and David French will be speaking in front of live audiences on Monday, January 13, 2024. You have two chances to catch them if you live in the DMV area. Details below: Catholic University of America CUA Columbus School of Law 3600 John McCormack Road NE Washington, D.C. 20017 Room 205, main floor 12:30 P.M. ET George Washington University 2000 H Street, NW Washington, D.C. 20052 Burns Moot Court Room 3:15 P.M. ET Advisory Opinions is a production of The Dispatch, a digital media company covering politics, policy, and culture from a non-partisan, conservative perspective. To access all of The Dispatch’s offerings—including Sarah’s Collision newsletter, weekly livestreams, and other members-only content—click here. Learn more about your ad choices. Visit megaphone.fm/adchoices

Ready? I was born ready. Welcome to Advisory Opinions. I'm Sarah Izgar. That's David French and David, it's our anti-day. We're gonna do anti-slap, anti-masking, anti-indoctrination. We've got a couple circuit cases to talk about,

all leading up to our big emergency pod on Friday for the Supreme Court oral argument. Is it an emergency pod if we know we're doing it? No, that can't be a, it's bonus pod, extra bonus content. Yeah, for Patreon subscribers only. I'm kidding, we don't have Patreon. And to mention once again, if you're gonna be in the DC, Virginia, Maryland area,

we will be at Catholic and George Washington on Monday, January 13th to do live shows at both of those schools. David, let's start with the breaking news. This morning, Donald Trump filed an emergency brief at the Supreme Court asking them to put on hold his sentencing in the New York hush money case. Now the judge in that case has said

he's not doing jail time, he's not doing sort of any punishment of any kind that could affect the president. But nevertheless, I'll read you what they believe the questions presented are. Whether President Trump is entitled to an automatic stay of criminal proceedings against him in state court while his claims of presidential immunity from criminal prosecution are addressed on appeal. Two, whether the trial court's admission and use of evidence, President Trump's official

acts in a state court jury trial on criminal charges violated presidential immunity recognized in Trump v. United States, which kind of goes to point one, right? Right. So point one and two are, he's got this appeal pending, don't sentence him while we don't even know if he has immunity either from the process or the evidence that was used. But point three is the interesting one, David. Whether a sitting president's complete immunity from criminal prosecution during his term in office

extends to the president-elect of the United States during the brief but crucial period between his election, his certification as the president-elect, which has now occurred, and his inauguration as he conducts presidential transition activities that are integral and preparatory to his eminent assumption of the executive power of the United States. All right. So to put that in layman's terms, once you're president, we know this couldn't

happen. There's going to be no criminal process against you. That is pretty well established at this point because it would distract from your duties as the executive branch. And so what they're saying is, yes, and also for the few weeks ahead of time after you've been certified, you really aren't just citizen, you're citizen plus in sort of a run-up period to the presidency because you're doing

all this presidential transition activity. Now, there's nothing in the Constitution about president-elect or presidential transition duties, but statutorily, of course, we have recognized the transition. They get federal money to run the transition, federal workspace, government services administrations involved.

So it's also not totally nothing, David. What are your initial thoughts on whether there is a, this is a distraction from my duties as president-elect argument. Yeah, there's an interesting symmetry, isn't there, with the discussion of TikTok from earlier in the week where he's sort of like, wait a minute, I'm president-elect now. That gives me some reason to come in and say we need to press pause on this law while I prepare to execute the duties of the office?

No. I think I'm much more sympathetic to Trump's case on the first two points, which are related to the immunity, you know, the immunity determination, stay sentencing until that has all worked out. I'm very sympathetic to that. If I was looking at this motion, I would be inclined to grant it on that basis. On the final basis, no, no, not at all. The idea that I'm now sort of citizen plus before I'm sworn in and begin to have some of that, what would that be a sort of penumbras of immunity? That's right.

There's emanations of immunity. Yeah. No, I think it's a pretty bright line. When you're sworn in, you are clothed with the powers and privileges of the office. Before you're sworn in, you are not. Okay, so I'm gonna come down in the same place that you are, but I do wanna distinguish between this and the TikTok case, because in the TikTok case, he's talking about actually being president

and the powers of the president. There is certainly no pre powers of the presidency. We don't have two presidents at once. I am I've got zero going for that argument. Right. This is different because he's talking about the immunity comes from the distraction aspect. And certainly he is busy doing presidential transition stuff, interviewing candidates for office, deciding on first day policies. All of that absolutely exists. It's just a question of whether that balancing test, if you will, that we have decided ways in favor of a president not being distracted from his duties

also applies to a president-elect. I would say no, in that balance, it comes out that our criminal process is more important than the distraction aspect because there is no citizen plus in my view. You are a citizen or you are president. Yes, we are distracting you from all the preparations you want to make to be president.

And this is the part where it does overlap, David. There's not a great logical endpoint though, because you have those meetings while you're running for president. You certainly have, yeah, I mean, presidential transition can actually occur like the starting the presidential transition process occurs before the election. presidential transition can actually occur, like the starting the presidential transition process

occurs before the election. Yeah. So, yep, I'm a no on number three. Interestingly on the immunity questions, one and two, if you're a normal person who is convicted of a crime, we absolutely sentence you while your appeals are pending. Right, right. In fact, you often serve your sentence

while your appeals are pending. What is different about immunity is that it's a question of whether in part one, whether you should have been tried at all. Right. And in part two, whether they used evidence that should have never been used. The part one immunity to me would mean that you shouldn't be sentenced because you shouldn't have been tried. The criminal process should have never begun.

Part two, whether they should have used evidence. Nope, then you're just in a normal situation. That to me is more like the exclusionary rule, in which case criminal process can proceed, the sentencing can happen. Yeah. You know, the number one, it's the best argument. Yeah.

I think it's still a losing argument. And I think this will go on. He said, the judge said he can attend remotely. And again, the judge has already said he's not going to do anything. Well, he's not, you know, prison time is not on the table here. This really is, you know, it's sort of a case that doesn't carry with it a whole lot of consequences,

except perhaps for its presidential value, because Trump isn't going to prison. That's not happening. Even if there was sentencing and it was a sentence of a fine of some sort, you know, that's the element, the level of distraction there is minimal to be generous. But at the same time, this is a very, very highly unusual situation where you have an incoming president who's been convicted of a felony. And really, any sort of meaningful legal process against him, criminal legal process, is just not going to be possible over the next four years. So in some ways, I see this as a case that's not all that consequential at this moment. Tend to agree.

Okay, next up, should we do some anti-indoctrination? So in Arkansas, they passed the LEARNS Act, and now we're gonna discuss the anti-indoctrination provision of the LEARNS Act. Really appreciate this coming from friend of the pod, Judge Lee Rudofsky in Arkansas, who said, the operative complaint presents four buckets of claims. Love it.

Claims concerning the free speech of high school teachers, claims concerning the free speech rights of high school students, and then the due process rights of the teachers and the equal protection rights of the black teachers and students. So basically, David, we've seen this type of state law in other places before. It's about what you can and can't teach, the sort of divisive concepts idea, et cetera. Was there anything that stood out to you about this law that was interesting? You know, not particularly. I think what's so interesting about this case is what we're going to be talking about, which is the unsettled nature of the law regarding teacher-free speech to begin with, which is something that we've talked about at length, really.

Sarah it's been a couple of years, really, since these cases. We first started discussing this. I mean more than that actually, 2021, I think, is when we really first started to dive into some of these anti-CRT, anti-CRT adjacent type laws. And if, you know, long-time listeners will remember that we said that, you know, right now the consensus in the circuit courts is if you are a teacher in a high school and you are speaking as part of your

official duties, that that is government speech, that is not your speech. And so therefore, whether you think the anti-CRT law is wise or not is going to be different from whether it's constitutional or not as it binds the secondary school teachers. And that is what is interesting to me, is what is the legal posture surrounding teacher-free speech? Because if the legal posture is teacher-free speech, if the legal posture is that teachers don't really have free speech,

then it's almost irrelevant what the Learns Act says. You gotta comply. So, but it's very irrelevant what the Learns Act says. You gotta comply. So, but it's very interesting from the standpoint of what are the teacher's rights exactly here? Yeah, and basically what the Learns Act says is that you cannot compel a person to adopt a firm or profess an idea in violation of the Civil Rights Act. And what the teachers are gonna say is

that's really broad and vague, and we have some right to basically teach what we want and how we want in our classroom. And as you said, David, there's actually a really, there's a circuit split over this issue, and especially over the rights of the students. So there's the question of the right of the teachers to sort of have that freedom within their classroom. There's also the right of the students to receive information. And we've talked about the right to receive information in the TikTok context. And there's that one Supreme Court case about someone getting their visa denied. And the professors here in the United States said,

we have a right to receive the information from this international scholar. And Supreme Court said, yes, there is a right to receive information. But boy, has that not been extended because that's limitless. Yeah, yeah, exactly. And on the right to teach, I found it really fascinating. I mean, Judge Rudofsky has this footnote where he walks through the circuit split. So circuits that hold curricular speech does not implicate the free speech rights of primary and secondary public high school teachers.

We've got the third circuit, the fourth circuit, the fifth circuit, the sixth circuit, and the seventh circuit. Other circuits apply the legitimate pedagogical concern test. That's the first circuit, the second circuit. Other circuits apply the legitimate pedagogical concern test. That's the first circuit, the second circuit, the tenth circuit, the eleventh circuit. The DC circuit has a balancing test and the eighth and ninth circuits have not taken a side in the circuit split. And David, I guess here's my question that we've talked about a lot. We have said that in the university context there is all of this Free speech right to be able to teach what you want in your classroom that yes

The school would have some ability to say you must teach this course It can't be a physics course and then you go off Queen on teaching European history or something, right? But within your subject matter you have a lot of freedom to say what you want. How is there a First Amendment distinction? What is a First Amendment text, history and tradition distinction between a university professor and a high school teacher? Yeah, that has always been kind of a mystery to me. I mean, the Supreme Court has always said, and has always placed, well, when I say always, let me just say in the modern era of free speech jurisprudence, because we have to realize and remember that the modern era of free speech jurisprudence is a

relatively short window of time in American constitutional history. But in the modern era of free speech jurisprudence, the Supreme Court has always had a really high regard for free expression in higher education. You know, if there's that language from what is it, Keyesian, where, you know, if you stifle the marketplace of ideas on college campuses, then there's such big language as our culture could stagnate and die. It gets very strong language. And yet there's been a much more, a much more deferential approach to state regulation in high schools just from the get-go,

just from the get-go. And I think that there's never really been a case that has articulated why if I'm teaching 18-year-old seniors versus 18-year-old college freshmen, why in one circumstance I have a wide degree of discretion, and in the other circumstance, I might have zero discretion at all, like zero academic freedom,

constitutionally protected at all. And so that has always been a question, and it's never been sort of fully articulated. Now, I think you can talk about about there's a big difference between second grade and sophomore in college. But the more you get to the 10, 11, 12 rank, you know, 10, 11 grades, 10, 11, 12, the distinction begins to get a little bit more blurry. So I think this circuit split is fascinating. And I think it's time for the Supreme Court

to take up a case that's gonna really untangle these distinctions. This is where I think I come down. Look, we have the Pickering, we have Garcetti. We know how to deal with public employees at the state level. And it basically, when you're not acting as a public employee, when you're going about your life,

you're sitting on Facebook, you have full free speech rights. But when you're in your job that you're being paid for by taxpayers, those rights become very limited. And there's this balancing test. Are you speaking about your job? Are you speaking in your capacity

as your public employee self? And that's where I just don't understand, to me it's not that public high school teachers should have the rights of college teachers, it's that college teachers should have the rights of high school teachers. This is curriculum set by the state, and that's what public education is.

Someone, and we've gone back to this before too, someone has to decide the curriculum. You may not like that, how it's done, you may not like, but it's certainly not up to like each parent or something to decide what the curriculum of the high school is going to be or the second grade or the college, I would argue. That has to be set by the state and then the school boards or the university committees that are in charge of that as also because they're politically accountable. And so if you're a public employee at any of those type of places, I guess I don't understand why you're not treated the same as the prosecutor as the any other state employee.

Yeah, I think you raise a really good and interesting point. I tend to like the Supreme Court's jurisprudence around higher education like the Supreme Court's jurisprudence around higher education and would actually want the jurisprudence around high schools to be closer to that than it currently is. And states can do that, by the way. States could also set that as their curricular law, if you will. Right. But when you're talking about academic freedom and Right, but you know, it's, when you're talking about sort of academic freedom and who is speaking when, sort of whose speech, who is taking, whose rights are taking first rank in the moment

is a very interesting question in the context of academic freedom, because even going back to the very first days at FIRE, one of the things that we tried to articulate to the public is that there's really three layers here. When we talk about academic freedom, you tend to be thinking about the academic freedom of the professor, but there is also the academic freedom

of the institution. So the institution can say, public institution can say, we want this history department to be the best military history department in the nation. And I don't have as a professor a right to apply to a military history position and say, no, I actually want this position to be about the agrarian economics of medieval England.

No, no, no, this is a military history position. This is a Wendy's, ma'am. Yeah, exactly. So the institution can say, no, we're gonna emphasize military history. But then the professor comes in and let's say they're teaching, you know, Civil War history. They can't hijack it and turn it into, as you were saying earlier, Sarah, this is really a class about Gaza. No, no, this needs to be about Gettysburg, if the class is about Gettysburg.

But can you teach the class in such a way that you draw parallels with modern conflicts, et cetera? Yeah, yeah, you've got a wide degree of deference in how you teach the subject. You don't have the deference to not teach the subject. And so, you know, that's one way to sort of think it through. And then at the end of the day, the students have their own degree of academic freedom as well. And

that is sort of, that is, you know, they're going to absolutely have the ability to criticize their professors in public. They're going to, if a functioning institution should grant view, have sort of a viewpoint neutral approach when it's talking about which voices are gonna be heard in the classroom, but there are different layers of academic freedom here. Well, and I just don't think in a class, for instance, about World War II on the students, quote,

right to receive information, I don't think a student could sue and say they have a right to receive Holocaust denial information. Maybe the class will teach Holocaust denial, but if it doesn't, I don't think a student could sue and say they have a right to receive Holocaust denial information. Maybe the class will teach Holocaust denial, but if it doesn't, I don't think you have a First Amendment right to have been taught Holocaust denial because it's up to the state and the school and all of that to see what the curriculum is. That's where the right to receive information makes no sense. David, I think this is a case where I would vote with all my votes.

I would campaign for a state law that protected that sort of academic freedom. But I don't think it's protected by the First Amendment. Yeah, wait, you know, the entire public employee speech doctrine is a very interesting creation, almost sort of a Frankenstein's monster. Yes. Because what we're dealing with is the Supreme Court

is wrestling with a very real world problem, which would be, wait a minute, the existence of public employment should not extinguish your First Amendment rights, but at the same time, there are ways in which the government is acting as an employer where it just has to be able to act as an employer and not as a guardian of liberty. It has to ask for its employees to do their job

and to do their job effectively and define what that job is and shape what that job is. And that's just a really hard framework to sort of filter through the very brief and bare words of the First Amendment drafted at a time when sort of widespread public employment didn't exist the way it does now. And to the extent that it existed, it existed in a form that's pretty much utterly alien

to us, which was almost entirely a spoils system. So you win and you bring in the whole government. There wasn't this sort of giant class of civil servants. And so it's a very interesting solution that has been created on a very slender textual thread. And I'm not sure how stable it is. And of course, the way that this whole, the posture of this case, the merits of this case are really sitting at the Eighth Circuit at this point. But this is, as we've discussed before,

similar to my who decides question, which is really all courts often are doing, is just who gets to decide this question. This is also a what happens in the meantime question. So, yep, the Eighth Circuit's gonna decide this. Maybe it'll even go to the Supreme Court, as you say, David. In the meantime, what should the law actually be in the state of Arkansas? And so that's why this question is back, if you will, with Judge Rudofsky and his four buckets.

Let's move on to our next anti. So we've just did anti-indoctrination. Let's do anti-slap, David, because there is finally a federal proposal for a federal anti-slap law. What, a majority of states now have state anti-slap laws. But interestingly, the state of Iowa, where Ann Seltzer was sued for her poll by Donald Trump, does not have an anti-SLAPP law. You're literally an expert on anti-SLAPP laws.

Tell us what SLAPP stands for. Just walk us through this, Professor French. Well, you know, expert is a strong word, Sarah, considering our listenership, which includes probably people who've drafted anti-SLAPP laws. But I have actually practiced and I have actually won a case under an anti-SLAPP laws, but I have actually practiced and I've actually won a case under an anti-SLAPP law. So, yeah, so SLAPP stands for S-L-A-P-P, strategic lawsuit against public participation. And so what a SLAPP suit is, strategic lawsuit against public participation, is when if, let's suppose I was a billionaire

and I was really upset at advisory opinions, just extremely upset. I'm an investor in TikTok. I want TikTok to stay. I'm ticked at David and Sarah. And so I'm going to sue them for defamation. I'm going to claim that we have said something in this podcast along the lines that he's a tool of the communist government of China. And so he's going to sue us for defamation and he has unlimited resources. Well immediately we would be in a position that would be very difficult. We do not possess unlimited resources. It is very expensive to defend a lawsuit.

And so the goal would be a strategic lawsuit against public participation is a process is punishment lawsuit. The person would not think that they could really win it, but they would think that they could drain us of all of our resources, cause us to be more cautious about how we speak in the future, bankrupt us, immiserate us, all without even having to win the case. And this is something that does happen, has happened. And so what anti-SLAPP law does is it says, wait a minute, if you're sued

and you're sued in an area where you're speaking publicly about public issues and you're sued over that, you're gonna be entitled to raise a preliminary objection to the complaint, something that is different from your standard motion to dismiss. If I'm sued in general, I have an ability to file a motion to dismiss, but the bar for having that granted is very high, you have to say, hey, look, this complaint,

even if you take the whole thing as true, doesn't legally state a claim. If it's just, the whole thing is totally deficient on its face. Well, that's tough to win. You win those, you do win those on occasion, but those are really tough to win. What the anti-SLAP laws do is they say, no, no, no, once you raise an objection to the lawsuit,

then you're gonna have a summary proceeding where the plaintiff is gonna have to show their probability of victory. And if they can't, they're going to lose right away. And many of these anti-SLAP laws have a provision where they will require the plaintiff to pay attorney's fees so that the process isn't the punishment anymore. I get to be made whole in my investment that I made in lawyers.

So it's allowing for a summary proceeding. It doesn't cut off the lawsuit, but it creates a summary proceeding where the plaintiff is gonna have to come forward and make a higher showing than the normal plaintiff. And if they can't do it, then often they're paying the piper. They're gonna have to pay your attorney's fees. And so I've had a case like that, filed the motion,

won the motion, case was over from start to finish in three, four months, which is not the typical civil timeline. So that's, that's what an anti-SLAP law is. I'm a strong supporter of these, that it is a, it is not a ideological, there's not an ideological valence here. There are people on the right and the left who file slap lawsuits. Donald Trump has filed a lawsuit against the Iowa pollster who came out with a bad poll before the election. That would be a perfect example of an appropriate use of an anti-slap law.

Interestingly, 34 states and DC have anti-slap laws of some kind. But as the Reporters Committee website notes, Massachusetts, for instance, only has a slap law that protects from retaliation for petitioning the government. But a whole bunch of people claim they're petitioning the government all of a sudden. So we have now a bipartisan bill being introduced. Ron Wyden and Jamie Raskin are both Democrats. Kevin Reilly is a Republican from from California introducing the Free Speech Protection Act that would be federal anti-slap

protection. I don't know. You never want to say that anything has a high likelihood of passing. This seems to me to have a particularly low likelihood of passing in our current moment where both sides will claim it's the other side trying to prevent them from bringing defamation lawsuits and things like that. But nevertheless, it's at least a step forward, I think, to prevent, I mean, a lot of people don't even know that if you win your case in any context, that you still have to pay your own attorney's fees.

Oh yeah, exactly, exactly. That one of the things about the modern legal system is you can win and it can feel like a loss. Yeah. I remember, I think I've told this story before, but early in my career, one of my key mentors, he called me into his office and he said, I just want you to hear this client call

that I'm gonna make. We'd worked on a case together and we'd just gotten a court ruling. The case was dismissed on summary judgment after two, three years of defending it. So it was a great result. Case was out, we weren't gonna have to go to trial. And he was calling the client to tell him

that he won his case. And so he calls the client, tells the client, and the client starts asking questions. At first he's very happy and then he says, okay, when do I get my fees back? And at that point, you know, my boss says, well, you don't really get that. That's not, and he just gets steadily more angry

because over time as he was thinking through, he was thinking, wait, two years of my life or three years of my life, I can't remember, hundreds of thousands of dollars of fees, and I'm out both of those. Those cannot be recovered to me. It does really sting. It absolutely really stings, especially if you've won your lawsuit. But that's right.

It's a surprising number of people think if you win, you get to be made completely whole. And that is not the case. All right. Anti indoctrination. Check. Anti slap. Check. Time for anti masking. And I think this is another really interesting First Amendment anti conversation because there's just more here than you initially think of. So when we're thinking anti masking now in our current context, we're thinking something like people who continue to wear, for instance, in 95s, but they're not really wearing them for health

reasons. They're wearing them to sort of identify themselves as being in a certain group on the political left. And they're wearing it to protest and sometimes protest in illegal ways. And the mask prevents cameras and CCTV type stuff from catching them. One of those, David, to me feels like core First Amendment stuff. Identifying yourself with a group that has a specific political message. Right. And the other one to be able to commit crimes without being caught. Not so much First Amendment protected.

And we have so much history of masking in the United States. I mean, you sent me this website, but nevertheless, the Free Speech Center at Middle Tennessee State University has this great post about the history of this. In 1845, New York made it illegal to appear, quote, disguised and armed. But as they note and as we've talked about, almost all anti-masking

laws that we've ever thought of come about because of the Ku Klux Klan and the idea that you couldn't go around wearing a white hood and, you know, setting crosses on fire in front of people's homes, that that wasn't First Amendment protected. But, okay, so let me put these into buckets, David. There's the I want to commit crimes and not get caught bucket. Obviously, Obviously doesn't have any First Amendment problems that I see there. Bucket number two is this actually identifies me with a political group and a political message. No different than wearing a pin or an armband, a la tinker, for instance. Right. Highest First Amendment protection. Yeah. The third bucket,

which has been even up, there was a second circuit Ku Klux Klan case in 2004. And they were arguing something like the NAACP anonymity argument that if we show our faces with such an unpopular opinion, we're going to be harassed, we're going to be intimidated, we're going to have, you know, our jobs, you know, we're going to get fired, all sorts of stuff. There's going to be retaliation for our unpopular political beliefs. So for the same reason that legally you don't have to disclose your donors because you don't want to be retaliated against legally, I shouldn't have to show my face and be retaliated against.

That to me has sort of intermediate First Amendment concerns attached to it as bucket number three, David. Will you tell me about your take on the three anti-masking buckets? Yeah, you know, and again, we will put this link in show nuts because I think it's a brief entry, but it's very, very helpful. And I think this is one of those circumstances where the tiers of scrutiny analysis is helpful.

So I do think anti-masking laws, let me just sort of deal with the easiest question first. Do anti-masking laws implicate the First Amendment? Yes, absolutely. As you said, masks can be a form of symbolic speech. Also, there is a history of protecting anonymous speech. So there's an anonymous speech element here, which is how much can the state compel you

to expose your face when you're speaking and expose you to potential reprisal? And so I think what you're looking at here really is, okay, if this is going to implicate speech, what is the test that's going to apply? Should you apply strict scrutiny here? And as a general matter, I would say yes. And I would say, then therefore, what you're beginning to look at is a very context specific inquiry.

And as the MTSU site notes, that when you're dealing with the Klan and you're dealing with especially the Klan during its era of a reign of terror, you're going to be able to get to a compelling governmental interest that if you're talking about, and this is your, Sarah, part of your bucket about, you know, the wearing the mask to intimidate as opposed to wearing the mask to protect yourself from intimidation. Real turnaround for the KKK. Real turnaround.

Reversal of fortune right there, man. So if you're wearing to intimidate, if that is the purpose, and I would also throw Antifa into that bucket, then you're gonna have a really tough time in I think in striking down the law. If you're wearing to protect yourself from intimidation and you have evidence of harassment or intimidation,

then I think you're going to be, you're gonna be in a much stronger position at court. And so I do think this is actually something where there isn't a bright line, yes, no question. This is a very context specific analysis, but with a strict layer of scrutiny because anti-masking laws absolutely impact for your free expression.

Now, of course, we get into like, how does this work with motives and how are we supposed to determine? What if it's both, right? What if you as the KKK want to intimidate someone and also don't wanna be harassed for you wanting to intimidate someone and you wanna be identified with a certain political message?

How are we supposed to pull all those apart? Yeah, it's very messy. But if you look at across the cases, if you're part of a movement that has been violent and you're wearing masks, good luck guys. Good luck with that. If you have not been violent and you're wearing masks, sometimes complex doctrines can sort of break down into simple factual analyses.

And here I think on the anti-masking, if you can show evidence that you have been harassed and there is no evidence that you're harasser, you're going to be in good shape challenging anti-masking law. If the evidence on the other hand is you're violent, and you've been trying to conceal violent activity from law enforcement, you're the wrong plaintiff to come walking into the anti-masking challenge. All right. We've got two more First Amendment cases to discuss at the circuit level. The first one, David, is just this little campaign finance case that I found sort of fun.

You know, I get into these campaign finance things. But in short, the city of Oxnard, California, passed a new campaign finance law on its face. Totally neutral. It just says you can't give more than $500 for a local government race, basically. It reminds me a little of the student admissions cases that we've done, where they're totally race neutral on their face. We've just changed the policy instead of citywide test scores. Now we're going to do it by zip code, and we'll give preference to zip codes with lower median incomes, as they did in Boston, or in Fairfax County County where I happen to live, where they said they were gonna do it by middle school,

I believe. But then the purpose was to lower the number of Asian students. They thought there were too many Asian students at these public magnet schools, and this was a way to do that without violating the equal protection clause. Right, without saying no Asians, yeah.

Yeah. Discriminating fact, discriminating purpose, what is the test? And right now on those school admissions cases, the schools have won so far at both circuits, the first circuit and the fourth circuit. The Supreme Court has declined both, so those cases are over for these two schools.

And in both cases, the circuit judges said, because Asian students are still, quote, wildly overrepresented as a percentage of the population versus a percentage of the student body, there can't be basically a discriminatory effect. You and I have taken beef with that. Okay. So here we have this campaign finance law.

$500 limit seems totally fine. But what if the purpose was to prevent one citizen in particular from being as politically active as he's been? So, Aaron Starr is the president of MOF, a nonprofit corporation whose purpose, according to Starr, is to ensure local government efficiency. He has engineered recall efforts against a majority of the city council. He came in second in the mayor's race, consistently relying on larger dollar contributions. In 2019, the city council placed measure B, this campaign finance measure on the ballot, limiting individuals' contributions to candidates for city council placed measure B, this campaign finance measure on the ballot,

limiting individuals' contributions to candidates for city council and various other city offices. After voters approved measure B, MOF challenged this law. So worth noting, by the way, as far as Mr. Starr goes, I will tell you, in 2018, he raised $8,250 from just five contributors, and more than half of the money he raised involved contributions in excess of $500. So in total, we're talking about $8,000. Right. And about half of his contributions would have been banned under this new law. And the record showed, one, Starr and his contributions were a target of the city council when it proposed and promoted Measure B. Two,

Starr was the person who would be most affected by Measure B's passage. And three, there were considerable history of antipathy between Starr and city's elected officials over the years immediately preceding Measure B's adoption. So David, same thing, right? Facially, there's no problem passing this type of campaign finance regulation, but does it matter that it was potentially intended to have this very specific retaliatory effect to present this thorn in their side from actually raising money so that he could thorn

them in their sides even after that. Ninth Circuit, two to one, said, can't do it, that it did not pass First Amendment muster because its purpose was retaliatory. It did not pass strict scrutiny because it was not narrowly tailored. If they wanted to prevent quid pro quo corruption, there were other ways to do it. As they put it, There were other ways to do it. And that, as they put it, Measure B's campaign finance limits were much more closely drawn to the prohibited objective of stopping STAR rather than remedying corruption concerns. But the dissent was like, what are you even talking about? This obviously was about contribution limits that were closely drawn to match the city's

interest. was about contribution limits that were closely drawn to match the city's interest, the majority contravened precedent by applying a motive test instead of a tailoring test. And David, generally speaking, legal conservatives don't like motive tests. Definitely about why legislation was passed. But this kind of was a motive test. They said it was a tailoring test, that it fit the tailoring, like the tailoring explanation was better explained by wanting to get to star than it was explained by wanting to get to corruption. But that is a motive test dressed as a tailoring test. Yeah, you know, but retaliation jurisprudence has always had the motive element to it because

retaliation jurisprudence is really based on the idea that you've undertaken what would be an otherwise lawful activity for an unlawful reason. And so, yeah, when it comes to, this is an interesting situation because you're talking here about legislation, most retaliation litigation isn't about legislation. It's about say I was fired from my job, which you can be fired for maybe because they think you

dress poorly, but they can't fire you because you're Republican or you're Democrat, for example. So the motive inquiry does really matter. I have filed countless retaliation cases, but none of those retaliation cases, Sarah, that I filed were based on legislation. Not just legislation in this case. This was a voter referendum. So there's also this intervening act, right?

Right. The city council promoted this and wanted it, but voters actually voted for it in the end. Yeah. voted this and wanted it, but voters actually voted for it in the end. Yeah, and I think the thing that makes me hesitant to agree with the majority here is that also in the campaign finance arena, it is entirely appropriate if it is the case and it is the case that contribution limits have been upheld. One of the reasons why contribution limits were put in place was the evidence of disproportionate influence of large donors. So to say, wait, you've pointed out the

disproportionate influence of a large donor and therefore that's triggered this legislation doesn't strike me exactly as exactly the same as the other kinds of retaliation cases. And so that is when you've already had a circumstance where contribution limits have been upheld and one of the reasons why contribution limits have been upheld is because of courts crediting legislative concerns about large donors. It's a very interesting case to me, Sarah. It was very interesting. I normally am all about a retaliation case, but the question is here when you have it as legislation and you're legislating something, contribution limits that have been upheld,

and they have been upheld on the basis that disproportionate influence comes from individual donors. Yeah, I'm not fully comfortable with this. All right. Next up, we have another retaliation-ish case. David, this one's out of the fourth circuit. And I got to tell you, it's a dozen pages on the in and outs of a student body, student council race for junior year representatives. What? Yeah, this is, I mean, this is like reading a movie script about dirty tricks in high school elections. I mean, what was that? It's sort of like movie elections plus mean girls mixed into one.

And look, overall, David, I actually read this and was like, wow, this will show you what we mean when we talk about being a litigious society in America and then everything really ending up in the courts. I mean, Alex de Tocqueville said that back in the 19th century, but even he couldn't have foreseen a junior year student body race

ending up in these circuit courts of whether this was race discrimination or just mean girls being mean girls and whether you have a right to sue the school if mean girls are mean girling you. Well, and the answer is yes, if the mean girls are mean girling you over race. Because the case here is about what obligation

does a school have to protect students from student on student racial harassment, when it is not racial discrimination from the school to the students, but instead students are harassing another student. In what circumstance and what obligation does the court have to step in? And here the Fourth Circuit brought itself sort of in line with other circuits to say, yeah, if there is race-based student-on-student harassment, then there is going to be an obligation on the part of the school to take steps to address it.

And this isn't really all that novel. I mean, this is something that we talked about in the context of Title IX, and I'm sorry, Title VI in higher education around harassment of Jewish students following the October 7th attacks. And so it's been well known and we've talked about cases filed against universities obligating universities to protect their students from student on student harassment. Totally not surprising that that would be the standard in a public high school, but it's a really unique, as you're saying, fact pattern, Sarah. And there were dirty tricks in that election. My goodness. Or there was incompetence.

Yeah. Okay. So we're not going to run through all 10 pages of the facts in this case. It's a lot. It's a lot. This student files to run for student council. She does everything right, except she checks sophomore instead of junior. So then they like send her her thing to run for sophomore student council. And she's like, oh no, I meant junior. And so things are going fine,

but then the website goes down or does it? When they finally get a new website working, she's listed under sophomore instead of junior. And she claims that this is racial discrimination. The school's like, no, eight other students got left off too. This was just that like, we use the old system to transfer instead of the one that had been fixed after you had emailed. Her mom then goes on the news to talk about this. The NAACP gets involved. So then, yeah, she becomes really unpopular at school, David.

I think that's like a very likely thing to happen when your mom goes on the news to attack the student body election races, that you're gonna be pretty unpopular at school. So then she goes to a couple teachers, asking them for recommendations for a summer program. Both teachers say no, but one of the teachers had provided a recommendation to a white student, but not to her.

I got it, David. This isn't good. And some of the things that were happening at the school are not good. And the way that she became unpopular, there were certainly some things that were race characterized. But there were other things where you're just relying on her to say, her posters got torn down, but white students posters didn't get torn down. Or she was

caricatured as an angry black girl. But I saw no actual examples in the record of what she's referring to aside from the fact that she was very unpopular from this point forward, as I think any student would have been, who made them go through three different student council elections. Right, well, there's two issues here, Sarah. One is, does the circuit recognize that there is an obligation to protect

against student on student harassment in Title VI? Yes, absolutely. Is this student on student harassment under Title VI? Different inquiry. That is, do you go back and does she actually have the facts on her side to prevail? And the way you outline this, Sarah, in reading this, it's a lot of drama. So much drama. No question. I'm not even giving it its fair drama reading.

No, really. If you're nerdy enough to want to see how drama unfolds in a Fourth Circuit court opinion, we need to put that opinion in the show notes and you can go read it. Lots of very petty high school drama. The question is, was it race-based student on student harassment?

And that's actually a pretty high bar. It is not, did something happen that annoyed me on the basis of race. You have the analysis of severity, pervasiveness, how much of it concretely interfered with your ability to enjoy the benefit of the educational program. It's not a low bar, it's a pretty high bar to establish that student on student harassment.

I mean, there were also other things that clearly to me look like retaliation, David. Ricketts was not reselected for the varsity cheerleading team, though she had been on the team for two years. The coach selected a JV student in her place. She anticipated getting her international baccalaureate diploma upon graduation,

but was informed about ineligibility after submitting an essay previously reviewed, edited, and proved by the teacher. She was informed the essay was one point short of receiving her IB diploma, despite passing the course and already receiving the honorary diploma. Yeah, I mean, plus the recommendations that I talked about, right? But David, this sounds like

retaliation for making the school look bad, being a troublemaker, making the school go through three student council elections that everyone was annoyed about and attacking basically saying that the teacher who was in charge of the student council election was a racist and your mom going on TV and saying that. I think that's really bad. I don't think the school should do that. I will tell you, I experienced something very similar in high school, like credibly similar to what she's describing. In fact, people may be interested to know that I was half a point short of receiving an A in my AP government class. Uh-oh. I think you can guess I was pretty good at government back in high school.

I got an 89.4 and that prevented me from getting an A, which prevented me from being in the top 10% of my class, which prevented me from getting automatically into a state school. That was the point. For what it's worth, the principal actually offered to change my grade because she agreed that it had been in retaliation for some protected speech that I might've had against another teacher.

And I declined to have my grade changed. I don't know who I was spiting in that little moment, but I kept my grade. You stood on principle. I did, I took that B, man. Like you wanna give me a B? I shall finish lower in my class on principle. That's right.

How do you like me now? So that's all to say, I actually feel for this girl. And I know what it's like when basically the teachers close ranks. If you say anything negative publicly about one of their own, that suddenly your grades go down, any qualitative assessment of your work is judged.

But it doesn't make it race-related to your point, David. It makes it how, unfortunately, high schools work, and clearly she doesn't have a principal that was as wonderful as mine was, and who went out of her way to do the best she could. But, you know, student on student harassment, real. Teacher on student student... as mine was and who went out of her way to do the best she could. But you know, student on student harassment, real. Teacher on student student, sorry, teacher on student harassment, very real.

It's usually for retaliation though. Yeah, yeah. Yeah, it's going to be very interesting to see what happens to this case on remand, but the actual judgment, the underlying judgment, does Title VI protect against student on student racial harassment? Yup, yup, yup. All right, David, well, we've got a bonus episode coming on Friday evening,

so I think we'll end this one a little early. Thank you for joining our anti-First Amendment podcast. We're not anti-The First Amendment. It's just a bunch of things that we're anti. We ended up doing what? Anti-SLAP, anti-masking, anti-indoctrination, anti-retaliation, and anti-corruption. Yeah. Wow. I mean, that's five antis right there. Yeah. We will talk to you after the exciting and what I suspect will be long conclusion of the TikTok arguments

at the Supreme Court. See you in a couple days.