Advisory Opinions - The Bell Tolls Long Conference

Episode Date: September 29, 2022

From the first legal challenge to President Biden’s student loan forgiveness program to a bad precedent in the making involving the NRA, from nation-wide injunctions to budding Supreme Court friendships — today’s show is packed with non-Trump content! (For a hard look into the ex-president’s legal woes, tune in again on Monday!). Also: Sarah and David put on their tin foil hats as they try answering once and for all whether our devices are listening in on us. Out of context: “I don’t like this outcome, Sarah.” Show Notes: -Frank Garrison v. Department of Education -Second Circuit Decision on NRA v. Vullo -The man who prevented nuclear war Learn more about your ad choices. Visit megaphone.fm/adchoices

maple syrup we love you but canada is way more it's poutine mixed with kimchi maple syrup on halo halo montreal style bagels eaten in brandon manitoba here we take the best from one side of the world and mix it with the other and you can shop that whole world right here in our aisles find it all here with more ways to save at real canadian superstore ready i was born ready Welcome to the Advisory Opinions Podcast. I'm David French with Sarah Isger, and we have too much to cover. Too much. So we're going to get a start on it today, and we're going to finish some of it on Monday.

So if you've tuned in to hear about Trump's legal problems, and that's the only reason you've tuned into Advisory Opinions, this is not your podcast today. But get ready for next, early next week for Tuesday morning. That is your time. But if you're fascinated and interested in the Supreme Court, if you're interested in Biden's student loan forgiveness program and a looming legal challenge or a filed legal challenge, or if you're interested in Biden's student loan forgiveness program and a looming legal challenge or a filed legal challenge, or if you're interested in a fascinating case from the Second Circuit that has a lot of ramifications for free speech generally and specifically for some controversies around big tech, this is the podcast for you. So, Sarah, do you want to kick us off with some SCOTUS updates,

developments? Well, we are taping this on Wednesday and it's long conference day. Very exciting. So the Supreme Court justices are together for the first time since the term ended Wednesday, September 28th. Yes, oral arguments won't start until next week, but they all get in the conference room basically all day. It's called long conference for a reason. It's long because they have to get through all of the cert petitions that came in over the summer. The clerks turn over in July. So we have a new set of clerks that's been busy, busy, busy reviewing these thousands of petitions, making their recommendations. And so I thought we'd just discuss a little bit about how that

works. So during the regular season, if you will, David, the term, cert petitions come in and they more or less get reviewed as they come. If you look at the Supreme Court kind of docket sheet, it'll tell you when a cert petition is going to be up at which conference. And generally speaking, they're relatively soon. Some get held over, so it'll get relisted for the next conference and the next conference. And for listeners, that's where you'll start hearing David and I talk about, you know, oh, it's been relisted three times. We think it's, you know, going to have a dissent from denial or somebody's writing something.

That's why we say that. But over the summer, none of that happens. They just pile up in the corner until this long conference. And if you're wondering whether it makes any difference, whether your cert petition comes in over the summer or during the year. It absolutely does. So this is from 2015 data, but petitions arriving over the summer have a 16% worse chance of being accepted by the court. Greg Garr, who's the former Solicitor General in the W administration,

has a very memorable quote, the summer list is where petitions go to die. So let's be clear, like if you have a, you know, the Dobbs case, the gun case, the cases that we are most likely to talk about, David, it's not really going to matter whether you filed them over the summer or during the year, but it's those marginal petitions, especially probably on some of the criminal Fourth Amendment-y ones, maybe the arbitration ones, that's where that 16% could be make or break for your cert petition, and you're not going to want to file it over the summer if you can avoid it. Yeah, but that's the key is if you can avoid it. Because once you lose, once you lose at the Court of Appeals, a clock starts ticking. You just can't hang on to your cert petition, look at the odds as to when it's best to file it, and game the system.

You've got it. You're on the clock, so to speak. So how unfortunate when the bell tolls for you and the bell tolls long conference. So true. So we are looking at 2,000 or more cert petitions that they will go through today. And the clerks, it's interesting, the researchers who got that 16% number, their theory was that it was the new clerks, that they were reluctant to recommend too many cases for cert and be more discerning than once they have some experience under their belt. I don't know that I necessarily buy into that as the reason, especially since the reason

could just be that there's 2,000 plus cert petitions to go through. And so, yeah, you're going to pay less attention to each one. Instead of each one getting three minutes, you're getting two minutes. And so that means that some of the marginal ones aren't going to look as interesting without that third minute to dig into their arguments. They're getting more than three minutes, everyone. I'm being, you know,

thinking of grading my students' papers. three minutes, everyone. I'm thinking of grading my students' papers. So anyway, it's an interesting day, I think, particularly this year. They haven't been together all summer. And of course, there's the investigation looming. A lot of them have given speeches over the summer. And again, you're sitting in the room by yourselves. Clerks are not allowed in the conference room. And so you have Justice Jackson now as the junior justice. Amy Coney Barrett only had one year as junior justice, opening and shutting the door and taking messages to people. And Justice Jackson does that today for the first time. Yeah, it's interesting. Given how contentious the last term was, the first time. Yeah, it's interesting, given how contentious the last term was, you just,

you know, we're left to just completely speculate as to sort of what is the, what is the kind of social dynamic in that room without any clerks. And, you know, I think the reality is it's a lot more congenial and collegial than sort of the external political drama would suggest. But at the same time, historically, I don't have particular insight into the present court, historically, there have been tensions in the past. And like the world's smallest high school cafeteria, there is nowhere to run. So true, but I do think that you have a lot of collegial people on this court,

as opposed to previous courts where there were maybe a tipping point of curmudgeons. Right. It strikes me as a kind of an overall, by historical standards, and I haven't looked at this and you might tell me immediately, you're completely wrong, David. But it strikes me as historically maybe a younger court than it has been in a while, because we had Justice Jackson is younger, the three Trump appointees on the younger side. So perhaps a little bit younger, which hopefully would contribute to less curmudgeonliness. But who knows? And while I'm not ready to declare it a Scalia-Ginsburg relationship yet, we are starting to see the beginning

of a Gorsuch-Sotomayor-Casablanca friendship, I think, over time. And so, again, don't assume that social media is representative of what happens in the long conference and who's actually genuinely friends with whom, it interestingly tends not to fall along ideological lines. It tends to fall along common interests like it did for Scalia and Ginsburg. They loved opera. And, you know, these relationships, they have actual importance. I mean, that, that, that, that Scalia-Ginsburg

relationship, although, you know, although I'm not going to exaggerate sort of the inspiration that people take from Supreme Court justices being BFFs, every little bit helps that where you have instances where you can see people as whole people outside of partisan disagreement. But let's move on to more disagreement, Sarah. Disagreement with the Biden administration over student loan forgiveness. And the Pacific Legal Foundation has filed a complaint and they think they've cracked the standing nut. And essentially, to make this as simple as possible, there is an attorney with the Pacific Legal Foundation who is, and the attorney's name is Frank Garrison,

Indiana resident, Pacific Legal Foundation attorney and holder of student debt. And now what's interesting about this is that because Garrison is a full-time nonprofit employee, he is eligible for full debt forgiveness anyway under a public service loan forgiveness program. So just to give you a sense of what that is, there are a number of law schools, for example, there are a number of programs out there that do loan forgiveness if you are engaged in some form of public service, working for a nonprofit, working as a public defender, working as a district attorney. And the reason for that is a lot of vital jobs in American law

don't pay nearly as well as big law. And so if you're graduating with a large amount of debt from law school, as a lot of folks do, there has been in the past a real concern that some of the best and brightest are going to avoid these really vital jobs because they just simply can't afford to make the payments. So public service loan forgiveness forgives the loan so long as you're in public service. Now here's the quirk. Here's the quirk. That loan forgiveness is apparently not taxed, but Garrison lives in Indiana and the Biden loan forgiveness will be taxed. He will have a tax burden under that loan forgiveness plan. And so therefore, the argument is that gives him standing to challenge the Biden loan forgiveness program.

to challenge the Biden loan forgiveness program. Intriguing, Sarah. Intriguing. What do you think? More than intriguing. You know, there was always, when we talked to Professor Bode, for instance, this was always a theoretical plaintiff, but you needed someone who was in that program, who was automatically going to have their loans forgiven, but who also was going to have their loans forgiven no matter what over time, and have a state that was going to tax loan forgiveness even though it was not going to be treated as income because of a congressional bill that was passed. And it was just going to take a lot more steps that had not really been met over the summer. And lo and behold, David, six states passed taxation against the loan forgiveness.

And so I think they've got it. The only problem will be if there's an opt-out. And I think it will turn a lot on the facts of the opt-out. If you are in that automatically, it was going to be forgiven no matter what. Was there an opt-out to this? Could there be an opt-out to it? And if there is, is a judge going to be willing to kind of look the other way and say, sort of like Little Sisters of the Poor, if you remember, they always had the option of simply signing a sheet that said, you know, we're not going to do this, the government's going to do it. And they said that no, that itself would violate their religious beliefs because they'd sort of be knowingly allowing the government to pay the same thing that they were

going to pay. Here, the argument would be something like opting out is an affirmative act on my part that I shouldn't have to take. But it gets a little tricky as you get into those opt-out weeds. But certainly, big picture, David, they cracked the code, no question. On its face, they've got standing to go into court. Of course, the majority of their brief is on the merits of why this is an unlawful program, something that not a whole lot of people are defending. To begin with, it was always just, could you get into court? If I had to put a percentage on it, 75% yes. I'm going to agree with you on that, Sarah. I think that they have likely cracked the code. The big question, again, for me, is this opt-out possibility? Is it possible to opt out of the

student debt forgiveness? If you can opt out of the student debt forgiveness, then the tax burden would then become optional. But as of right now, what the debt relief announcement says is if the U.S. Department of Education doesn't have your income data, the administration will launch a simple application. But if it does have your income data, automatic cancellation applies to about 8 million borrowers who've provided income or other information to the Department of Education. And so Garrison is in that community of people. So again, Sarah, if he's in that community of people, there's automatic cancellation and there's no opt-out, then I think they've got it. I think they've got it. And then they're on to the merits. And on to the merits, Sarah, I think, again,

you know, we've talked about this mainly in the standing context because we weren't quite sure that anyone was going to get to the merits. But I'm interested in your thoughts on the merits. Have you had, well, we've heard some of them. Have you had any additional thoughts since we first looked at it? I think the big question for me is, can they get a stay?

What does that stay look like? they get a stay what does that stay look like again i don't i have not seen um anything persuasive from anyone defending the merits of this that uh that a member david and you and i talked about this as well on the other podcast a a president's emergency powers are actually very, very broad. As in, he can declare an emergency because Fridays are terrible days of the week. But the question is, what powers does that give him? It's a little declaring bankruptcy, an overused, perhaps, metaphor at this point, but like, you can declare bankruptcy out loud. But what powers did that give you? None none if you simply yelled bankruptcy in a room but you're allowed to do that Biden can scream emergency but the question is what money does that actually open up and um it doesn't look like it opens up this money and then of course after the fact Biden

saying that the pandemic is over but the emergency is ongoing gets pretty messy I think the best argument about that is of course he did do it after but before it took effect bad timing but that this was always a retro looking policy it was to help people who had been affected by the pandemic really in 2020 and 2021. Sure, he announces it in 2022 amid the, quote, ongoing emergency, but it wasn't really future-looking, so it doesn't matter if the emergency is over because it's, again, that retroactive help.

But as we talked about before, this was not narrowly tailored. There was no specific need to show that these people were adversely affected by the pandemic. And in fact, you sort of look at numbers, the unemployment rate's incredibly low. Most people will have kept their jobs. Their salary wouldn't have changed. So it's really hard to say that this is at all tailored to people who were affected by the pandemic, except to say that like, well, we were all affected by COVID. Yes, we were all affected by it, but was your income affected?

No, for most people, the answer is no. Yeah, and this is one of those really rare cases where the political reasons why you would argue that this is a bad idea actually kind of dovetail with the legal reasons. Because the statute, when the declaration of emergency occurs, the statute doesn't say as soon as the president declares an emergency, they get to do whatever they want with student loans, right? There are broad powers to ameliorate the negative financial effects of the emergency. So, you know, for example, the pause in student loan payments at that moment when the pandemic hit, businesses were shutting down all across America, unemployment for everyone was skyrocketing. That's when you could easily trace a financial harm to the emergency and tying together the pause in student loan payments to this financial harm is, I think, easy to do. It's logical.

Where are we right now? Or where we are right now is Biden says the pandemic is over. And anyone who says that's completely irrelevant, that's completely irrelevant legally hasn't been paying attention to a lot of case laws we talked about in our last podcast. But if you look at the actual comparison between those who have student loans, college graduates, and those people who've gone to at least some college, they have a lower unemployment rate than high school graduates. They have higher incomes. And if they're college graduates, they have much higher incomes. And if they're graduate school graduates,

those are some of the folks who have the highest student loan debt. They have even higher incomes than that. And so you're talking about, as we've discussed before, one of the political problems, and I also think sort of as a matter of fairness and justice is this is a massive allocation of $420 billion is the latest sort of most rigorous examination of the cost, massive allocation of resources to people who are most advantaged in our system, college graduates. And it's really hard to say that the emergency has made them concretely less advantaged. And in fact, if you closely read the original OLC opinion purporting to sort of provide a legal justification, it actually kind of punts on that question, Sarah. Oh, I don't even think it punts. It just, I think they're pretty clear that this needs to be tailored to people

affected by the emergency, in this case COVID. It says, as long as you do that, then you're absolutely good. But the as long as is doing a lot of work. A lot. Work that the administration did not themselves then do. Yes. By the way, really funny on the $420 billion price tag, that's from the Congressional Budget Office, sort of a nonpartisan group of number crunchers. The administration has pushed back on that and said, no, no, no, no, no. It'll be way lower than that because most people aren't going to figure out how to fill out the

paperwork. Is that really a winning argument? This is going to be cheaper because we made it too difficult? Yeah. Yeah. Like I hate it on both sides then. I don't like the policy because I think it will raise tuition over time. Tuition that's already far too high, um, given the value, but also the bureaucratic complexity to do this means that people who they believe need it also won't get it. Cool plan, guys. Love it. Yeah. Yeah. No, to me, if I'm saying, if you're making me answer, do they have standing? I say yes. Is the program lawful? I say no. Is the result of this case a nationwide injunction? know. Is the result of this case a nationwide injunction? Huh? Yes. So that's the fun next question. We haven't talked about nationwide injunctions in a while. We mentioned it a little

bit with Judge Radler this week. There's a lot of different ways to think about, quote, fixing the nationwide injunction problem. So to start from the beginning, you as a plaintiff can file a lawsuit anywhere that there's jurisdiction to do so. In this case, the person in question lives in Indiana. They filed in Indianapolis. Great. And that district judge now is going to decide, let's assume for a second, thinks it's unlawful, thinks they're likely to win on the merits at this preliminary stage, wants to issue an injunction of some kind from the program going into effect. The options include an injunction for this single person, in which it will say that his loans can't be forgiven, so therefore he won't owe the tax. Or they could issue an injunction for the district that the district judge sits in. So everyone who's affected

in the whatever Southern District of Indiana, whatever it is, I don't know the districts in Indiana. I should, but I don't. That all of those people are enjoined from having their loans forgiven, but will it just be the people who would automatically have them forgiven, who would be subject to this tax, or the people who would really like their loans forgiven and will be net beneficiaries even after paying the tax? Or the district judge could say that this person is so similarly situated to everyone across the country that they can issue a nationwide injunction. Again, they'll have to make that distinction between enjoining the entire loan forgiveness program from going into effect, or only people who would have their loans automatically forgiven in states that have a tax. In this case, David, it gets really messy. Just to go over some nationwide injunction

solutions that people have come up with. One is stop forum shopping. You don't need to stop the nationwide injunctions. Just stop people from finding district judges that agree with them politically or ideologically, and every time you are suing over an administration policy, you have to file in the D.C. District Court. And so, therefore, they would still be issuing tons of nationwide injunctions, but it would all be this one court doing it. It wouldn't be the Fifth Circuit versus the Ninth Circuit versus the Eleventh Circuit, etc. Another option is, David, to really get guidance from the Supreme Court saying it needs to be tailored to the affected class, to the jurisdiction, etc. But that gets hard, right? What happens when 18 states are suing is it just those 18 states but then the other states aren't you know have a policy in effect you end up with a lot of two americas and that's very confusing for people and the supreme court i am just stunned has not stepped

in you have gorsuch waving his hands and saying we we need to do this. This is getting out of hand. It started really picking up during the Obama administration. Then it skyrocketed during the Trump administration. I would actually say it's leveled off somewhat during the Biden administration, but perhaps that's because they have done less. That sounds pejorative, but because of COVID and a bunch of other things going on, they've simply done less domestic executive order slash regulatory things. So David, in this case, what do you think an injunction looks like? That's a tremendous question, Sarah, because if the basis of,

so the basis of standing is that you have to assert a harm and that there's a particularized harm to a program. And so one of the elements of equitable relief is relieving the harm, is ending the harm, right? So you have a cause of action, you have a legal violation, a judic know, violation of your rights, and then you have a remedy. So it's each of these sort of steps. So what is the remedy? relieving the negative effects of the unlawful act, which would be making sure that everyone or making sure that those in that jurisdiction who are not going to be obligated to enter into loan relief. But then the problem then becomes, wait, I've declared a program unlawful, but the remedy for that unlawful program is to not end the program, but to sort of deny the state of Indiana tax revenue. What exactly do I do here? And so there's this real, but then you get into this real question that honestly, truly the real harm here, if you're really drilling down to it, is the $420 billion that is not coming to the taxpayer coffers.

Well, taxpayer standing, that starts to sniff and smell a lot like taxpayer standing, which is not something that you generally have. So it really does raise an interesting remedy conundrum. Now, then the other thing becomes, well, let's suppose that the court says this is unlawful, and then the Sixth Circuit says it's unlawful, and the Supreme Court says it's unlawful, but the remedy is somewhat limited. There at that point, the Biden administration is presiding over an unlawful plan for which there is no real judicial remedy except for a specific, very small class of specific, very narrow class of specific individuals. It's just a mess, Sarah. And it's an indication that you can't rely completely on the courts to safeguard the Constitution or you can't rely completely on the courts to uphold the law.

You cannot because there are circumstances where the rules, the traditional rules of standing, which are there for very good reasons, and limitations on remedies, which are there for very good reasons, leave you with a potential for a deeply unsatisfying outcome when there is a clear legal violation. So, honestly, it's a bit of a head-scratcher. I think, you know, what may well happen is the judge just goes ahead and does the old nationwide injunction anyway, and then lets the appellate court sort it out. But just to return to some of your thoughts about nationwide injunctions, this is one of those situations where, yes, Justice Gorsuch is jumping up and down saying we need to do something. A lot of judges down the line are saying something needs to be done. This is also where a functioning

Congress could really be helpful. You know, this is where a Congress could say, if you're filing a challenge under the Administrative Procedure Act, you're going to the district court in Washington, D.C. And here is the jurisdiction of the district court. Here is the scope of the injunctions that they can order. And they just define the jurisdiction. They define the remedy. And you have a solution. And I think, Sarah, honestly, it is so hard to separate the nationwide injunction problem from the forum shopping problem. They're inextricable. Totally intertwined. Yeah, I think that, I think you're going to have disagreement among the three courts on the way up. The district court, the circuit court, and the Supreme Court

over this question of the breadth of the injunction. And I don't know which will be which necessarily, but I think you'll have one that only enjoins for the, it'll be a nationwide injunction, but only for people who are situated exactly as this plaintiff. They are in the public service program whose loans would both be forgiven no matter what and are going to be forgiven automatically and live in a state where there would be a tax burden with the automatic forgiveness that's going to be very few people actually i mean it's six states and it's people in the specific program yada yada yada and then i think you'll have the other courts sort of

grapple with that i think you could end up with one court saying no once you have standing to get in you can challenge the whole law. So it's a nationwide injunction on the law going into effect. And then you can have a court say, yes, of course you can challenge the whole law based on standing, but you still have to have a remedy that fixes this person's injury. And this person's injury is not someone who would benefit from this law, you could end up with three different analyses on this. And it's not inconceivable where you end up with a judicial determination that loan relief is unlawful, but the remedy means that instead of it being a 420 billion dollar unlawful program it's a 419.7 billion dollar unlawful program that's right yeah it's it's fascinating and i'm going to be

followed we'll be following this with intense interest because this really is at the intersection this really is one of these cases where it presents the problem of, wait, can we in fact go to courts to vindicate all of our legal interests? And the answer to that has traditionally been no, not all of them because of the standing issue. But this is one where you might have solved the standing issue, and yet you still may not. In order to get that sliver of the standing issue, the sliver ends up also affecting the remedy. Yeah. But before we leave this, shout out to Pacific Legal Foundation. They're the ones who filed this case.

They are sort of a libertarian legal organization out west. So they cracked the code first. Congrats, guys. They've cracked the code. We have adjudicated it, which is almost as good as the court adjudicating that they've cracked the code. It's close. It's like 98% there. All right, shall we move on to the second circuit and bad facts make bad law? Oh, yes, yes, yes, a thousand times yes. I've been looking forward to this conversation. Oh, this is, okay, so this is a case, wow, okay, let's walk through some of the facts here. So, this case has been brought by the NRA, and is brought by the NRA against Maria T. Vulo,

against Maria T. Vulo individually and in her official capacity. And what was Maria T. Vulo's official capacity? So she was superintendent of the New York State Department of Financial Services, which we'll just call DFS from here on out. And so what Vulo did was she opened an investigation that into an NRA program called Carry Guard. And so Carry Guard was insurance coverage for losses caused by licensed firearm use. Okay. Now, in theory, there's nothing wrong with that, that, you know, it might be that you use a firearm lawfully in self-defense and someone sues you, even though you used it lawfully in self-defense and you need insurance coverage. People, you know, not everyone who has a firearm is rich and can hire their own attorneys and can cover the costs of litigation.

can hire their own attorneys and can cover the costs of litigation. So that's absolutely a normal use of insurance. However, in looking into some of the details, Vulo discovered that it looks like some of the carry guard insurance coverages would apply not just to lawful use of a firearm, but might cover costs associated with the intentional unlawful use of a firearm, which is a problem. It's generally against public policy for it to be insured against intentional wrongful acts. That would be, that's sort of traditionally been viewed as sort of creating license for illegality. And so she begins an investigation. Three different insurance companies enter into consent decrees where they end up paying

fines that collectively, Sarah, total around $13 million back to New York State because they were covering, their insurance coverage was unlawful under New York State law. All right. So while all this is happening and while she is uncovering actual unlawful action, the Parkland shooting happens, okay? The Parkland shooting happens, okay? So after the Parkland shooting, what she does is she puts out a guidance letter, okay? And the guidance letter, along with the press statement from the Cuomo administration,

the guidance letter, and I'm going to read from you what this opinion says. On April 19th, 2018, approximately two months after the Parkland shooting and six months after DFS opened its investigation into the NRA-endorsed insurance programs, Vulo weighed in publicly on the issue of gun violence. She issued a pair of guidance letters entitled, Guidance on Risk Management Relating to the NRA and Similar Gun Promotion Organizations. One was addressed to DFS-regulated insurance entities and the other to DFS-regulated financial institutions, read Banks. The guidance letters referenced the Parkland shooting and other mass shootings condemned the increase in tragic devastation caused by gun violence as a public safety and health issue. The guidance letters also advised that these tragedies had resulted in strong social backlash against the NRA and similar organizations. Citing the changing public sentiment and views as to corporate social responsibility,

the guidance letters encouraged DFS-regulated entities to, quote, continue evaluating and managing their risks, including reputational risks that may arise from their dealings with the NRA or similar gun promotion organizations, if any, as well as continued assessment of compliance with their own codes of social responsibility. The guidance letters did not refer to any ongoing investigations or enforcement actions such as those regarding CarryGuard. The same day, Cuomo issued a press statement announcing that he had directed DFS to, quote, urge insurers and bankers statewide to determine whether any relationship they may have with the NRA or similar organizations sends the wrong message

to their clients and their communities who often look to them for guidance and support. Vulo is quoted in the press releases stating, business can lead the way and bring about the kind of positive social change needed to minimize the chance that we will witness more of these senseless tragedies and urging all insurance companies and banks doing business in New York to join the companies that have already discontinued their arrangements with the NRA and to take prompt actions to manage these risks and promote public health and safety. So after this, multiple financial institutions severed ties or decided not to do business

with the nra the nra filed suit against vulo saying that this uh these public statements weren't just mere statements of sort of governmentected speech where the government officials are speaking on matters of public concern, but they were so threatening as to constitute a sort of an implicit threat of state action against companies doing business with NRA and thus violated NRA's own free speech rights, their right to engage and their advocacy free of governmental retaliation. That's a long windup, Sarah. When I first, I'm just going to tell you where I was on this. When I first read the capsule summary, and I'll cut to the chase, the Second Circuit 3-0 ruled against the NRA. And when I first read the capsule summary, I thought, well, of course, there is government speech. Government speech is protected by the Constitution. There is,

government officials are elected, not just to enact policy, but often to speak out on matters of public concern. There's a broad latitude to do so. There's a long history of government officials speaking out against the actions of private entities. That's all part of government-protected speech. But they can't threaten. They can't threaten you with government action on the basis of your protected speech.

This sort of like the NRA straighten up or else. And so my initial thought was Second Circuit got it right. Then I dove more into the facts here. And now I don't like this outcome, Sarah. I know you have thoughts. What facts moved you? So there are a couple of things that moved me. One is the statement came in the form of what a quote unquote guidance letter,

okay, as opposed to a simple press release. Governor's press release, I'm much less worried about. Press releases are often full of, let me put it this way, press release has to get pretty darn explicit before I'm going to say that some sort of broadcast press release

with over-the-top political rhetoric is a constitutional violation. Guidance letter, and not just from anyone, but from the head of DFS, who has actual enforcement authority. And then some of the interests, some of the language in there about, for example, managing risks. Now, some of that language is getting kind of close to terms of art within regulatory environments, especially when you're talking about insurance companies and financial institutions. And so the fact that it came out as a guidance letter

from a law enforcement officer with jurisdiction really worried me. As we were talking about, we had some time with the University of Michigan students after our podcast on Monday. And part of, you know, what I made a point there, that you've got a lot of government speech and freedom of government speech until you say, or else, or else. In other words, I condemn what you've done and you need to shape up NRA, fine.

I condemn what you've done, shape up NRA, or else we will shape you up when you're talking about NRA's protected activities, speech activities. That's where you've got a problem. And as you noted, the or else doesn't have to be explicit. It can be implied. And so those are some of the factors that led me to think that this is an implied or else.

What did you think? So a few things. I think that the fact that it's the NRA, this is pruneyard. This is so many of these other cases where the sympathy or lack of sympathy for the plaintiffs just kind of colors it because it's who you identify more with. And undoubtedly, many people are going to identify more with the regulator in this case, who after Parkland is like, you've got to be effing kidding me. Why are you people still doing business with them? That you see more of yourself in than the NRA. So I do think it's worth

considering the very real alternative, which is Planned Parenthood. Planned Parenthood operating in a state and a Republican attorney general sending out letters to companies and saying, you know, you should really think twice about doing fundraisers with charitable giving to Planned Parenthood after Dobbs. We think it's immoral. And by the way, we're investigating these organizations who broke the law in their engagements with Planned Parenthood. Different know, and have them as, if you're running a 5k and the beneficiary is Planned Parenthood, yep, we've just, we've got people who make sure that that's on the up and up, and we hope that yours is, but you should think twice about it because they're immoral. If that doesn't sound like a good idea to you, and Ken paxton sends that letter out to all of the companies in texas um this shouldn't either yeah i think that as you said david if she had said this on a television interview

very different because the or else then isn't really implied right the the implicitness of the or else comes from the thoughtfulness of drafting out a letter calling it guidance well what is the guidance the guidance is we're watching and you we don't want you to do this and we have a set amount of investigative resources that are going to look at companies that do business with the nra these companies broke the law we're not saying you did but we're just saying you did, but we're just letting you know that we have six prosecutors who do this. Yeah.

That is the or else for me. I think this is going to be a very, I think it's going to be an overlooked cert petition to the court. I think it has a high likelihood of getting granted. I think the NRA has a high likelihood of winning. And I think people will think it's a partisan decision. And that's going to be very frustrating to me because you and I are like, as I think pro-free speech as it comes in the social media cases, in 303 Creative, different sides of the aisle feel very differently about those cases. But here, as much as it pains me to side with the NRA, an organization that I

think is, corrupt is a good word. I would call it grotesquely corrupt, but you stick with just corrupt. But I think legally we want them to be right. Yeah. And here's the legal standard, Sarah. This is as articulated by the Second Circuit. And it reminds me of this meme that I saw, which is this leaning building with a single wooden pole holding it up. And the leaning building says, all of American law. And then the pole holding it up says the reasonable man standard. Yes. Here's the standard. Although government officials are free to advocate for or against certain viewpoints, absolutely true, they may not encourage suppression of protected speech in a manner that, quote,

that, quote, can reasonably be interpreted as intimating that some form of punishment or adverse regulatory action will follow the failure to accede to the official's request. In determining whether a particular request to suppress speech is constitutional, what matters is the distinction between attempts to convince and attempts to coerce. So what are the factors? One, word choice and tone. Boy, that's precise. Here's number two. This is important.

The existence of regulatory authority. Right. And three, whether the speech was perceived as a threat and whether the speech refers to adverse consequences. So word choice and tone, I'm going to say, yeah. Existence of regulatory authority, obviously. Whether the speech was perceived as a threat, that's interesting. You know, there were businesses that refused to do business. Is this because of the guidance letters? Is this because of their own free choice? Hmm, I don't know. But the idea that multiple businesses

refuse to then do business with the NRA after these guidance letters, I'd say that's more of a point for the NRA. And whether the speech- I'd be curious, for instance, David, two things. One, did we see a similar drop-off after Sandy Hook, for instance? Is this the normal attrition

after a mass shooting for the NRA? One. Two, did we see that same, you know, type of attrition in states that didn't send out this guidance letter that also that same number of businesses stopped doing business with the NRA around that same time?

So not in the immediate aftermath, actually, but well, you know, after. So look, if you can show that, then yeah, it makes the guidance letter look less causation-based and more coincidental. But again, it's pretty different when the Secretary of State for the state of Texas sends out that letter about Planned Parenthood, they have no ability to do anything about that, than the Attorney General for the state. And before I get a bunch of angry comments, I know the Secretary of State in Texas actually does business recognition stuff. And maybe I should have picked the railroad commissioner. Let's go with railroad commissioner who does

oil and gas, not really railroads in Texas. So ha, I'm getting my Texas card taken away from me like every day this month. Well, and one other factor, the final factor was whether the speech refers to negative adverse consequences. But then helpfully, this court says no one factor is dispositive. So, Sarah, is it fair to say this is an area of law that might be crying out for more clarity? Especially now. I think we're going to see more of this as everyone. I mean, companies are expected to speak out more about current political events. And government entities are taking sort of more aggressive actions again on both sides um especially in

this like free speechy associational context yeah yeah absolutely and um and to just to bring this like to close the loop on this one of the arguments made uh to try to bring the First Amendment into big tech censorship, is that big tech companies may not be acting on their own when they are censoring so-called misinformation, or what they would categorize as hate speech, that they're receiving pressure from government entities essentially saying, well, you better do something or we will take action. And so there's a pretty high bar in, you know, so if it's a member of Congress sort of job-owning tech companies, well, the member of Congress and a given member of Congress doesn't actually have the kind of authority that's necessary

to make their threat real, even if they get pretty explicit. Unlike, say, for example, a regulatory entity that was actually investigating the business partners of the NRA and imposing substantial justified fines, a very different kind of situation. But this is quite relevant to the question of whether government pressure on external companies like a Facebook, like a Twitter, can convert Facebook and Twitter's action into, in essence, government censorship because they're being compelled or coerced by the government to engage in that censorship. to engage in that censorship. Again, it's all a pretty high bar because the reality is that government officials can express viewpoints.

They can express viewpoints to companies. They absolutely have the ability to do that. Government officials are not bound by viewpoint neutrality in their own public statements. Absolutely not. That would be, as the Second Circuit rightly noted, kind of absurd. They're elected because of their viewpoints in many ways. So it's a high bar,

but in this case, I feel like the bar was cleared. And we'll take a quick break to hear from our sponsor today, Aura. Ready to win Mother's Day and cement your reputation as the best gift giver in the family? Give the moms in your life an Aura digital picture frame preloaded with decades of family photos. She'll love looking back on your childhood memories and seeing what you're up to today. Even better, with unlimited storage and an easy to use app, you can keep updating mom's frame with new photos. So it's the gift that keeps on giving. And to be clear, every mom in my life has this frame. Every mom I've ever heard of has this frame. This is my go-to gift. My parents love it. I upload photos all the time. I'm just like bored watching TV at the end of the night. I'll hop on the app and put up the photos from the day. It's

really easy. Right now, Aura has a great deal for Mother's Day. Listeners can save on the perfect gift by visiting auraframes.com to get $30 off, plus free shipping on their best-selling frame. That's A-U-R-A-Frames.com. Use code ADVISORY at checkout to save. Terms and conditions apply. All right, David, we're going to save all the Trump stuff, the special master opinion from the 11th Circuit, talk a little bit more about the Georgia case and why it might be in more trouble long-term than we think, and another Texas amici dealing with that Georgia case.

So lots to discuss next week. But before we go, David, I was buying some gifts for some friends off Etsy. Bunch of babies have come into the world. Congrats to all of the recent parents, listeners, and otherwise. And I just opened to the Etsy homepage. And David, I want to know what you think it says about me that these are the things that Etsy has flagged for me today.

One, an owl organizer engraved gift box. Has an owl on top. Two, ceramic crabs. Three, a vase that looks like a book. And the title of the book is F you and F these plants with a cat on the cover. And the subtitle is I do what I want. A set of demotivational pens.

And on the pens, it says things like you've already peaked. Everyone's judging you. You're for sure getting fired. That idea is garbage. Your face is weird. And lastly, David vintage office accessories, such as the pencil

sharpener that you have to spin, you know, the metal pencil sharpener that you turn the wheel, the library card stamp thing that you manually make the numbers, the right numbers, and an old school stapler. Although I feel like staplers haven't changed. That technology is about the same. You still need staples and to put them in the old school stapler, the Stanley Bostitch stapler looks, I think I might still have one. So I'm old. I like cats. My face is weird. And crabs and owls are kind of my thing. It knows me, David. It's crazy. It's crazy. Well, we had this wild incident where we're, you know, this, this is, it's not just that Etsy is tracking your, let's just go full, let's put on the tinfoil hat. The tinfoil hat says, it's not just that they are tracking your searches, they're listening to you. And we had this crazy incident.

We're driving to the airport after doing the live podcast at the University of Michigan. And for some reason, we dove down the rabbit hole of nuclear near misses. When did the US almost go to nuclear war? And we talked for a bit about an incident in 1983 involving a NATO military exercise where Russian missile system or missile detection systems alerted to a probable missile launch. And a Russian, a Soviet official, very thankfully and wisely, chose not to alert higher-up officials of the launch

and may have averted nuclear war. Interesting conversation, interesting incident. So I get in the airport and I flip on my, I look at my phone and I go to my Google app and the Google app shows you sort of curated stories for you. Like, here's what you're going to be interested in. And the number one story that popped up was, alert showed five U.S. nukes inbound

how one man in USSR may have saved the world in 1983. Coincidence, Sarah? You didn't search for it. I didn't search for it. Our driver, the wonderful student from the University of Michigan, obviously wasn't searching for it in the car. Very weird. Tinfoil hat. I'm wearing the wonderful student from the University of Michigan, obviously wasn't searching for it in the car. Very weird. Tinfoil hat. I'm wearing the tinfoil hat right now. I mean, that's

not even tinfoil. How else would that come up? Sure, maybe you can say David's the type of person who would be interested in that. Except those coincidences shouldn't happen all that often. And instead, things like that pop up on my phone with frequency. I've even done experiments, Sarah, where I have thought, I want to see what happens to my social media ads. And I will, around my phone, say, I'm looking for a new gaming computer. I'm looking for a new gaming computer. I want a new gaming computer. And sure enough, sure enough, I'm full. and sure enough sure enough i'm i'm full but here's the problem david you actually do do gaming stuff just like i mean in all fairness to etsy i did buy a dried toad purse one time from etsy the cane toads are overpopulating some places and so people people catch them, kill them, dry them out and turn them into coin

purses. And yes, I bought one at one point. So perhaps they thought toads, crustaceans, all the same thing. They're not, I'll have you know, but whatever. And that that type of person might also be into kind of sad cat-based things, and is almost certainly old. So fair enough. But David, so you need to say to your phone, cane toads, cane toads, cane toads. Yeah. Something that clearly is not in your wheelhouse and then see what happens. That's a good point because the other point against my notion that my phone is always listening and therefore omniscient about my thoughts and desires and all of that is that if you open the Amazon app, it is a absolute mess. And the reason is both Nancy and I shop from the same Amazon account. And one minute, like, I'm getting Ring of Steel about Germany and Austria-Hungary in World War I.

And she's getting like the girl who saw the train or something. And that combination creates an interesting list of suggested items, shall we say. Well, David, I'm already looking forward to our next episode. This will be fun. It's going to be great.

Possibly even greater than this one. And that's saying something. going to be great possibly even greater than this one and that's saying something so on that note um thank you very much for listening everyone please go rate us at uh apple podcast or wherever you get your podcast please subscribe and please check out the dispatch.com Oh, oh, oh Oh, oh, oh