Advisory Opinions - The Grievances Podcast

Episode Date: September 26, 2023

The David and David show closes out with a First Amendment send-off. They discuss: -A fifth circuit case involving racist accusations and the well-known Journal of Schenkerian Studies -Book People versus Texas Laws Written in Crayon -A student organization’s fight for drag queens on campus -Balancing freedom of speech and explicit content Show Notes: -Yascha Mounk for The Atlantic: Stop Firing the Innocent -Federal Circuit order suspending Judge Newman -David Lat's Original Jurisdiction news roundup Learn more about your ad choices. Visit megaphone.fm/adchoices

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Details at fizz.ca. You ready? I was born ready. Welcome to Advisory Opinions. I'm David French with David Latt. And David, this is a momentous recording. This is your last time as sort of official guest host. Like if I'm like the guest host i don't know it's all complicated because i'm frequent guest right and you're frequent guest host so this is your last time

as frequent guest host but certainly certainly not your last time on this podcast it's been a joy it's been a pleasure yeah i've really had a great time and i'm really grateful to you and sarah for the opportunity to appear on the podcast and connect with the wonderful AO listenership. And I am always game for coming back. So don't forget me. Oh, we definitely will not. Because similarly with Sarah, whenever I run into AO fans out in the world, they will always say, I absolutely love advisory opinions. Sarah is the best. So then I've had this phenomenon where I love advisory opinions and David is just great.

Wait, what am I, a potted plant? But I have had so many people come up to me and tell me how much they have enjoyed your presence on the podcast and that you've just been a real pleasure to listen to. And I couldn't agree more. I've listened to, I do quality control. I go back and I listen to podcasts.

It's been, you know, It's just been great having you, and we really appreciate it. Yeah. Again, my pleasure. My pleasure. I was very nervous, I have to confess, because Sarah leaves big shoes to fill, but I guess I've survived. Well, hopefully nothing I say today will betray terrible ignorance or get me canceled. So we're in the home stretch. Let's wait on the survival declaration. You know, we've got about 55 to 65 more minutes. Well, this is going to be a First Amendment podcast. There have been just an array of First Amendment decisions on hot button issues.

Everything from academic freedom to online speech to drag queens to book censorship and regulation. My goodness. Okay, so here's what we're going to talk about. We're going to talk about a Fifth Circuit case involving a teacher and academic freedom. We're going to be talking about another case out of Texas involving ratings for library books. We're also going to talk about another case out of Texas involving drag queens.

And I'll be walking us through that one since the free speech of drag queens is my brand. And then we are going to talk about a California injunction against a sweeping California law involving the regulation of children's access to internet content, which is fascinating. If we've got time, I want David to talk about this. You know, we've talked about it a little bit before, but he had a really interesting

Substack newsletter about Judge Newman, who I think, I mean, you can fact check me, is 3,000 years old and there's a big fight over whether she can remain on the bench. And David wrote some really interesting stuff about that. So we'll walk through that if we've got time. But let's get started and we'll just kind of go with the highest court that we'll be talking about. So the Fifth Circuit, and then we've got a bunch of district court stuff after that. But the Fifth Circuit case, really interesting, David, you want to walk us through that one? Yes. So this is a case, the Jackson case,

Jackson to be right. And this was a dispute arising out of a controversy that you might have heard about, I think, in 2020 or 2021. It involved a professor at the University of North Texas by the name of Timothy Jackson. He's a music professor. And there was a heated controversy in musicology circles, basically about racism in the world of music. Wright was the faculty advisor of a rather obscure musicology publication, the Journal of Shankarian Studies, Shanker being this, I guess, eminent, but also perhaps racist music theorist, long dead, I believe. Wait, time out. Are you saying that, no, I'm not saying time out, like pause the recording. I'm just, I not saying time out like pause the recording i'm just i'm saying time out and are you saying the journal of shankarian studies is obscure i was uh really uh shocked

to hear that it has a distribution apparently of 30 as in three zero that makes the harvard larview look like i don't know uh you know, Tom Clancy or something like that. But it's funny. I mean, I had the thought, I guess this quip isn't necessarily by him, but it's often attributed to Kissinger that academic politics are so vicious because the stakes are so small. And so this dispute over this journal and whether this theorist was long dead was racist. There was a black professor who condemned him. And then there were a bunch of professors who rallied to his defense. And one of them, I guess, was Timothy Jackson, who has devoted his life's work in large part,

I think, to this Schenker fellow. And so what happened was there was this big to-do a couple of years ago. And the upshot was Jackson was removed from his involvement with this journal, which he actually founded. And so he was very upset over this. And there were also various accusations that Professor Jackson was racist. So what ended up happening, of course, was litigation. And Jackson was investigated by the university and he was removed from his involvement with the journal. So he sued eight members of the University of North Texas Board of Regents, claiming that the actions they took against him, investigating him, removing him from the journal, constituted First Amendment retaliation because they didn't like some of the things he wrote about Schenker and in response to the black professor who criticized Schenker. And in this 10-page pretty short opinion, I mean, it could have almost been unpublished, but maybe the nature of the controversy made them publish

it. In a pretty short opinion, Judge Oldham rejected the defendant's claims that one, they enjoy sovereign immunity, University of North Texas is a public institution, and two, Professor Jackson lacks standing. So this case will proceed and we will be hearing, I guess, more about the Journal of Shankarian Studies. The world needs more of the Journal of Shankarian Studies. And, you know, the only reason that I paused is because, you know, we had a great interview with the person from Ad Fontes Media

who had us really high on the fairness rating. And I just wanted to make sure that we were being fair to the journal. And I think coming forward immediately with facts that say that it's 30 subscribers, three zero, I think obscure. Didn't want to jump to conclusions. Yeah, you're going to see a theme here or you'll hear a theme, listeners, as we walk through these cases.

Each one of the First Amendment cases that we're going to walk through is spawned by some kind of panic and some sort of frenzy. And what was really interesting was looking at the date when all of this began to unfold was July of 2020, which is sort of the height of the racial reckoning in the summer of 2020, which, if you walk back in that time, had many good aspects and had many excesses. And one of the excesses of the movement was there was a period of time where there was, I guess the best phrase was,

a hunt for heretics. And it was essentially, it wasn't just that people were increasingly sensitive to subtle forms of racism. It's that people became immediately punitive, immediately punitive. And so that rather than having a discussion about and a debate and a dialogue about the nuances of various opinions, and opinions and we began to see uh there is a party line and if you have been called out you are to take your punishment um you you are to comply you are to take your punishment we've seen many examples of this one of my favorite uh columns written sort of during that time was by yasha monk and it was in the Atlantic, and it was called Stop Firing the Innocent. And it really kind of captured some of the zeitgeist at that moment.

And I think it's a mathematical equation almost at this point, David, which is when you have a panic, First Amendment litigation follows. Yes, it's been this way ever since the modern advent of the First Amendment. And we're going to see this again and again and again. But I'm with you. This is interesting that they chose to publish this very short opinion. And it also seemed just very simple and straightforward. I will point out that the controversy did generate national attention. There was a New York Times article about it in 2021 by Michael Powell. And this became very heated. In case you're curious, the theorist is Heinrich Schenker. He died in Austria in 1935, according to the Times piece. And the professor who called him out in

2019 was Philip Ewell, who is a black music theory professor at Hunter College. And it was Professor Jackson, who somewhat came to the defense of Shanker, pointing out that he was, for example, someone who was the grandson of Jewish emigres. And I'm sorry, that's Professor Jackson. Professor Jackson is the grandson of Jewish emigres who had lost many relatives in the Holocaust. And he also pointed out that I believe Schenker was also no privileged white man. This is from the Times article. He was a Jew in pre-war Germany. And so again, you can see what you were just talking about, David. Even though the initial call-up by Professor Ewell happened in 2019, the controversy bled

into 2020 and 2021. And as you were just discussing, these were times of peak controversy over these matters of identity and oppression and what have you. And I just wanted to go ahead and lay this out there again for some people might be new listeners because we've been thankfully growing in our listeners pretty remarkably. So in this podcast, we talk about free speech a lot and we will defend the free speech rights of people that we disagree with. I'm not adjudicating the dispute over Shankarian racism. I do not know if Shanker was racist or not. But one thing that I do know from many years of practice is that offering a defense against charges of racism is a pretty much textbook First Amendment protected

speech. And so, you know, regardless of the underlying merits of the charge against Schenker, the debate about it, both pro and con, is constitutionally protected speech. So if you had punishment based on the allegation of racism, that would implicate the First Amendment. If you have punishment based on the defense against racism, that would implicate the First Amendment. If you have punishment based on the defense against racism, that would implicate the First Amendment as well. And the fact that someone is a public university professor does not mean that they are drained of their First Amendment rights simply because they're a public employee. There's now a considerable amount of jurisprudence that says that

professors enjoy academic freedom rights and are treated differently from other public employees, say, such as in the Spalas case in the Supreme Court did not make a similar holding and sort of left it to the lower courts to flesh out. And the lower courts have protected the academic freedom rights of professors. So that's just some background because we're going to dive into some other hot button stuff. And you might say, oh, well, you love that speech or you love that speech. No, we're talking about speech and constitutional protections. So with that background, David, do you want to take us into the wonderful world of library books? So this is the case of Book People Inc. v. Wong.

Some of you may be familiar with Book People. It is a beloved independent bookstore in Austin, Texas. I'm sure Sarah could probably say a lot more about it than I can. And this case involves a Texas law concerning books in public school libraries. And the statute is, again, I think Zach on the last podcast, my husband Zach talked about, you know, all the clever and perhaps annoying acronyms. This statute is the READER Act, which stands for Restricting Explicit and Adult Designated Educational Resources, or HB 900. was passed earlier this year, and it is about categorizing books into, I guess, two buckets, if you will. One is sexually explicit. One is sexually relevant. Sexually explicit books are

banned from public school libraries. The sexually relevant ones are subject to various restrictions. What's tricky about this statute, and there are multiple First Amendment issues in this statute, one issue here is the statute actually requires booksellers who are selling into the public schools to do an initial rating or review of the books they are selling. And then what is kind of interesting is the state is then free to change the rating of any book. And it can then present that rating, where it will look like they can post that bookseller's list and there's no necessary sort of footnote or asterisk saying, well, this wasn't the bookseller's rating, this was the state's rating. There's an issue about how to administer this law because apparently there are something like 6 million items in just six school districts alone.

Another issue, besides this sort of compelled speech issue relating to the rating of the books, is it is hard to figure out what the standards are. That's a recurring theme in First Amendment jurisprudence, just something too vague or unclear. And the booksellers who are doing this rating before they can sell into the libraries have to determine whether the material is patently offensive. And there's a lot of other language along those lines to sort of figure out whether the book is patently offensive. They have to conduct this contextual analysis. And it's very

hard when you look at the law to sort of figure out what books might or might not be covered. And there are a lot of other issues, but maybe that's enough to set the table for now. Whoa, what are you listening to this for? Wait, who's talking? You know you're driving a 2024 Ford Escape with available Alexa built in, so you can change the music. Oh, yeah. Alexa, change station to 99.2. See? Purchase a 2024 Escape ST line all-wheel drive with Tech Pack at 3.49% APR for 72 months with down payment. That's just $267 bi-weekly. Cash value of $40,294.

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Use code ADVISORY at checkout to save. Terms and conditions apply. Wow. This case is really something else. And I just want to pull back and provide more context again. So if we're talking about this previous controversy, which unfolded, its original seeds were like 2019 and the University of North Texas case really gets rolling in 2020 and 2021. That was, again, put your mind back into, put yourself back in that context. There was a lot of frenzy and a lot of anger. Now, this case, this case is born out of the frenzy and anger over library books and schools. And we have talked about this quite a bit on this podcast, the frenzy around library books.

And most of this has focused on when can a school board, or most of the controversy has been more local and focusing on when can school boards yank books from shelves. And the answer to that question is surprisingly vague. There is a Supreme Court case called PICO that essentially says, well, yeah, I mean, school boards have lots of discretion, but it's not unlimited.

For example, you couldn't take every Republican book off the shelves or every book by a black author and that there is this sort of right to receive information that exists. But we're not saying you can't curate your collection. We're just saying there's guardrails. And that's most of the controversies. This is not that. This is something very different. This is saying, okay, publishers, you have to rate your book and without real clear guidelines as to how you're going to rate it.

And then if we don't like the rating, we'll re-rate it for you. And then the standards here for how this is all implemented are deeply confusing. And I'm going to, there's a few times, David, when I just feel like to analyze a case,

I'd really just like to read out loud a long piece, but I'm not going to do that. But there's a tremendous sub stack about this decision by Chris Geidner, and we'll put that in the show notes. And what he does is he really pulls out some of the key elements here. So here you had a law that was about to go into, that was about to start being enforced. And here's an interesting part of the opinion. So the court says, generally, the government was confused and unaware of how the law would actually function in practice, even though the hearing was mere days before it would go into effect. There are approximately 40 instances during the August 18th hearing where the government either did not know how the law would function or did not have an answer as to what the effects of

certain provisions were. And then he points out a couple of salient examples. So for example, the judge says on enforcement, who would enforce the law? Answer, that's a good question. A good question that I don't know that anybody has thought that through yet. Okay. On when and why the Texas Education Agency would change ratings, quote, I haven't thought that through yet. I think this is still being worked out because this is a new bill. On whether there is no appeal from the TEA's ratings changes.

I believe that's correct, Your Honor. I haven't thought that through, but I do believe that's correct. On whether booksellers could seek relief if they're harmed under the law. Well, Your Honor, maybe the answer is they can't. Okay, there's nothing super legally interesting here because if you're walking in with answers like this, just pro tip for young lawyers, you're losing. How would we enforce it?

I don't know. Standard, hmm, not so sure. Right to challenge, don't really know. You're just, you know, and I'm not faulting the lawyers because if the law is that poorly drafted, they've got to work with what they've got to work with. But again, here's the theme, David, in the middle of these panics, state agencies either, state entities either do things like University of North Texas or state legislatures pass things like this law that may as well have been written in crayon.

It's so bad. And then when you challenge it, like if you're someone who's saying on social media or you're writing a piece saying, whoa, wait a minute, this is a bad law. The answer is, oh, you must really not care about protecting kids from porn. Yes. Wait a minute. No, actually, I really care about the First Amendment and I do care about protecting kids from porn. How do we handle both of these things? And then they don't care. They

just plow through and they pass it. And then the answer is, you know, see you in court. You're going to have to learn the hard way. And it's really frustrating how much we've seen this play out over the last two, three, four years. You know, one thing I would point out, and Chris in his excellent Substack post does a good job of highlighting this, is the judge makes clear that he is not basically saying, oh, you can give third graders

Playboy or something like that, because I think that's sort of the straw person that always gets introduced here. As you were just saying, David, oh, you don't care about the children. So this is an excerpt from Judge Albright's opinion. Again, the court expresses no opinion on the scope of the power of a state to create a system where a state agency rates the sexual content of books that will be purchased by public school libraries. Nor does the court express an opinion on the scope of the power of a state to utilize a rating system determining whether to purchase a book or not for its libraries. The issue here, though, is how do you go about deciding what books make it into public school libraries. And here, because of the vagueness of

the standards and the compelled speech problem in terms of the ratings, this particular reader act does not pass muster. One other thing I'll point out, the judge here, Judge Alan Albright of the Western District of Texas, I know that people can question or argue over how relevant these things are, but he is an appointee of President Trump. And the other thing I would point out, just fun fact for those of our readers who are in the intellectual property space, they may already know of Judge Albright because he is sort of a guru of patent law.

And because of various procedural things, et cetera, at one point he had a massive chunk, something like a quarter of all patent cases in the United States, partly because people love filing in the Western District of Texas, because it was perceived as plaintiff friendly. And Judge Albright also moved things very quickly, and I think didn't dismiss patent holder claims too quickly. And so it was very popular, they had to basically rejigger the system because there were also some complaints that too many cases were going to judge Albright and the Western District. But anyway, he is not a cultural warrior judge.

His main expertise is IP law. Right, right. Absolutely. And it's interesting when we look at a lot of these laws where you're targeting library books or you're targeting drag queens, which we'll get to in a minute, or you're targeting professor's speech, we're seeing a remarkable unanimity, with the exception of what we'll get to in a minute, from Obama appointees, from Trump appointees, from Bush appointees. I mean, you go down the line that these laws targeting specific kinds of speech are unconstitutional. And it's just across the whole spectrum, which David, I think is worth highlighting because that was my experience in my legal career. So I spent 21, 20 plus years litigating first amendment cases. Even when I was in law school, I volunteered on a

couple of cases to help research. And the truth of the matter was, especially at the district court level, the identity of the president who appointed the judge was basically irrelevant to the outcome of the case. And I think that might shock a lot of people, because when they focus on, especially if you're a casual observer of the legal scene, you tend to focus only on the edge cases that make it to the Supreme Court, which, where things look like, well, you know, with some exceptions that if you listen to advisory opinions you've learned about, you feel like you can predict things based on who appointed the justice. But that is not the bulk of the practice of law. The bulk of the practice of law actually, in my experience, involves a pretty even-handed

application of precedent. And when the precedent is clear, the application of it becomes very predictable. So, none of this surprises me at all. One thing that will be interesting to see is what happens to this on appeal, though. The Fifth Circuit is a pretty conservative court. A number of folks on it were in the administration of Governor Abbott, who signed the Reader Act into law. So we'll see what happens. I do agree with you. I think that we tend to overemphasize things like the appointing president when it comes to judges, especially district judges. And one other thing to note about district judges, the power with respect to district judges and

appointment is sort of shared to a greater degree than with the circuit courts between the president and the Senate. So sometimes somebody might nominally be a president of, put an appointee of this Republican president, but maybe it was a Democratic senator who pushed them through or vice versa. Now, we're talking about Texas, which has had two Republican senators for, gosh, I don't know, forever. So, you know, I would not expect this Judge Albright to have been the product of any kind of deal between a Democrat and a Republican. you know, I would not expect this Judge Albright to have been the product of any kind of deal between a Democrat and a Republican. But again, I think it's interesting. And again, I think, as you point out, a lot of this is the application of settled doctrine, which

the district judge may or may not like, but they have to apply it. Yeah, exactly. Exactly. You know, and I think you can really, there are certain tells as to whether, you know, the district court is kind of going rogue or not going rogue. Because one of the tells is, how do you frame the tests, for example? And if you're just very boringly conventional in your framing of the test, you can kind of figure out what's going to happen going forward. Now, again, it doesn't mean that the edge cases are predictable. This one doesn't necessarily strike me as an edge case, David. It strikes me as the kind of case where even if you're, let's say, a judge who's sort of common good constitutionalist curious would look at answers like, I don't know how this is going to work. I don't know. I have, you know, that hasn't been thought through yet.

And it would really give them pause, to be honest, because I think if you're a shrewd common good constitutionalist judge, you probably want better facts. You know. If you're going to be pushing the law in a particular direction, you probably want better facts. This doesn't strike me as your vehicle, but of course, we'll wait and see. The Fifth Circuit has been interesting on speech. There's certainly a cohort on the Fifth Circuit, Judge Willett, among others, who are very speech protective, very speech protective. But the Fifth Circuit is also the circuit that has sort of defied the Supreme Court in the Net Choice Social Media moderation case. So I feel pretty confident the Fifth Circuit will uphold this lower court decision, but depending on the panel, I'm not 100%. But I still think it is, as a general matter, a pretty speech protective circuit.

you would, I forget what the term is, but basically where everything has to break your way, like running a something around. I can't remember. There's a term or a, is it your bank shot in billiard? Like triple bank shot or something. Yeah. Like you kind of, there are enough problems with this. I don't think it was Judge Albright trying to bulletproof his ruling from appeal. I think there were just so many problems with this law, but you have a lot of problems. You have the problem of impermissibly vague standards. You have the problem of compelled speech. You have the problem of nobody knowing how the heck this thing is going to work. You have all these problems. And so this is not a good case to make a record on. But I believe that the, again, I may be getting all of our First Amendment cases confused because we have so many of them today, but I believe the state has already

said it's going to appeal this. I believe they've already filed their notice of appeal. So, this is not the last we've seen of book people, the Wong. Yes. No, not the last of it. And speaking of cases that we're about to introduce that we will not hear the last of on this podcast is our drag queen case. So, here we go. You know what, David?

I never thought, I never in a million years thought that if you just rewound the clock to the start of the Trump era, that I was going to talk so much about drag queens. That was not on my bingo card. But here we are again. This case is called Spectrum versus Windler. It is in the Northern District of Texas Amarillo Division. And I'll just read you some of the basic facts of

the case here from the decision. Plaintiffs are a recognized student organization at West Texas A&M and two of Spectrum's West Texas officers. The plaintiff strives to provide a safe space for LGBT plus students and allies to come together to raise awareness of the LGBT plus community and to promote diversity, support, and acceptance on campus and in the surrounding community. So this is an organization with a viewpoint. In furtherance of that mission, so again, in furtherance of that viewpoint, in furtherance of that mission, Spectrum WT hosts events such as Lavender Prom, Queer History Night, and Queer Movie Night.

Plaintiffs also planned a March 2023 fundraiser at a campus event hall to raise funds for LGBT plus suicide prevention. In papers filed with this court, plaintiffs described the proposed event as a drag show open to children accompanied by a parent or guardian. The proposed event was tentatively scheduled for April 1 and branded a fool's drag race due to a scheduling conflict.

Spectrum agreed to hold the show one day earlier, but before it confirmed the event, the defendant, Walter Windler, stated his opposition in a letter that says, The school will not host a drag show on campus. In the letter, President Windler analogized another type of theatrical performance, blackface minstrelry, to explain his opposition to any event exaggerating, stereotyping, mocking, or objectifying a person based on appearance, bias, or predisposition. And I'm reading now from the letter. As a performance, exaggerating aspects of womanhood, sexuality, femininity, gender, drag shows stereotype women

in cartoon-like extremes for the amusement of others and discriminate against womanhood. Any event which diminishes an individual or group through such representation is wrong. Should I let rest misogynistic behavior portraying women as objects? Drag shows are divisive and demoralizing misogyny no matter the stated intent. Such conduct runs counter to the purpose of WT. A person or group should not attempt to elevate itself or a cause by mocking another person or group. As a university president, I would not support blackface performances on our campus, even if told a performance is a form of free speech or intended as humor.

It is wrong. I do not support any show, performance, or artistic expression which denigrates others, in this case women, for any reason. Mocking or objectifying in any way members of any group based on appearance bias or predisposition is unacceptable no one should claim a right to contribute to women suffering via a slapstick side show that erodes the worth of women and humor becomes harassment and has gone too far okay david i would read that and if i was a plaintiff's lawyer in a free speech case, and I would think, Judge, what we have here is an admission of viewpoint discrimination. If you would like to just go ahead

and issue the injunction against this, I would appreciate it. But what we would really appreciate is if you would go ahead and start calculating our attorney's fees for having to file this case in the event of obvious unconstitutional viewpoint discrimination.

But that is not, David, what happened in this case. What happened in this case, at least so far, is that the judge sided with the university. And I knew we were in trouble when we got to the opening segment of the opinion. And I'll read it.

Free speech jurisprudence only intermittently invokes the historical analysis applied to other amendments and clauses. And it talks about New York State Rifle and Pistol Association v. Bruin, applying this text history and tradition, American Legion versus American Humanist Society, explaining that the Establishment Clause jurisprudence

looks to history for guidance. Said historical analysis reveals a free speech ecosystem drastically different from the expressive conduct absolutism of plaintiff's briefing. One, the founders focused on prior restraints of publication, specifically political pamphlets, and two, draft free speech clauses focused on protecting the right to speak, to write, or to publish their sentiments.

Blackstone treatises extolled freedom of thought and recognized the police power to censure licentiousness, et cetera, et cetera, et cetera. And what I found interesting about this is this district court judge went on to essentially create his own test. Really, it nodded, David, and tell me if you think I'm reading this incorrectly, it sort of nodded towards existing jurisprudence, but really sort of went back to what I would say as an analysis, a First Amendment analysis that a lot of folks in the new right urge,

which is sort of a text history and tradition kind of analysis for the First Amendment. And that does actually take content and viewpoint into account. And it was a very strange opinion in my view, because essentially what the judge did is say, wait, this regulation on men wearing women's clothing and engaging in behavior that is arguably lewd is not a prohibition on the basis of, say, content. And yet, much of the opinion, he's railing on the content, just like the president of the university railed on the content. So, on the one hand, he's saying it's not really a regulation that's based on content. On the other

hand, he's talking a lot about how bad the content is and rejected the plaintiff's case. So, I found this incredibly curious and odd as a bit of First Amendment analysis. And also, by the way, out of step. Every other district court that has looked at one of these drag queen prohibitions has struck it down. And it's happened multiple times. We stopped covering it on AO. It was so common.

It's like, oh, another court struck down a drag show ban. Am I being too harsh here what what's your what's your thought no i you know i like good controversy in a podcast as much as the next person but i can't disagree with you here david it seems that judge kasmarek is almost nostalgic for her again i'm you know i'm being a little crude here but it's almost like huh what about the you know first amendment from back in the Alien and Sedition Act era? Like, he seems to basically hate everything post New York Times versus Sullivan. So I think we've seen this trend in the lower courts of trying to apply the text history tradition test to various rights.

And sometimes they're almost anticipating the Supreme Court because the Supreme Court is moving towards this THT analysis, as in Bruin, as in gun rights. And sometimes they're almost anticipating the Supreme Court because the Supreme Court is moving towards this THT analysis, as in Bruin, as in gun rights. And sometimes the lower courts hit the mark. Maybe they'll write an opinion applying the standard jurisprudence, but then some conservative judge, like a Judge Newsom or a Judge Ho, will have a concurrence basically saying, that's the current jurisprudence, but if we were to do a THT analysis, we would get here. And then it goes up on appeal. And maybe lo and behold, the Supreme Court does go there. I do not think this is going to be one of those decisions where the lower court applies a THT analysis, and then it goes up to SCOTUS and SCOTUS says, Oh, yeah, you know, you've correctly anticipated us. This opinion is kind of a little crazy. And, you know, it just, you know, again, I'm just sort

of baffled. The First Amendment and First Amendment cases have long protected things like expressive conduct. Of course, there was a famous opinion that even Justice Scalia signed on to relating to flag burning. And yet here, Judge Kazmarek, whom you may remember as the judge in the Mifep Presto cases, he's a very conservative judge who was involved in litigating various religious positions before taking the bench. Judge Kazmarek is basically, I don't know, it's like he's just almost ignoring all of this precedent or he wants to refashion, he wants to create new precedent, but that's not his job as a district court judge. Yeah, it's a really, you know, it's, and if you know, if you sort of know

some of the literature in the new right, you can see where he was going almost immediately. So, you know, he, at one point, he footnotes this professor at Grove City College named Carl Truman, who's sort of a conservative Christian theologian slash philosopher, who I would say broadly finds himself in the new right. I don't think he's an attorney. finds himself in the new right. I don't think he's an attorney. I'm not aware that he's an attorney, but he's absolutely somebody who is extremely focused on LGBT issues and sort of scorns people in the Christian conservative world who seek to protect the civil liberties of LGBT folks and protect LGBT expression. And so, you know, I could, I kind of, as soon as I saw, as soon as I saw that, I thought, oh, I know where this is going. And, but it does raise a really interesting question.

And I'm sure listeners are just kind of sick of the THT, our text history and tradition conversation, because it's been a theme. But it's an important part of this discussion, I think, which is that it is a difficult test to apply, and as difficult as it is in the Second Amendment, in the First Amendment, David, I think it's a near impossibility for this reason. One is that from the beginning, it was very, very clear that the First Amendment only applied to the federal government.

And people come forward and they'll say to me, well, a bunch of states had anti-blasphemy laws, for example. So that means that the First Amendment does not prohibit an anti-blasphemy law. But those were state laws, David. Those were state laws. It would shock me if the First Amendment, under any sort of original public meaning analysis, would have

allowed Congress to pass an anti-blasphemy law. It says, Congress shall make no law, right? And so, a lot of the early American analysis of free speech, I think just fundamentally misses the mark because at the time, the First Amendment was very specifically applicable to Congress. And so this sort of idea that we can go back to say 1811 Massachusetts and decide what free speech meant under the First Amendment is just broken from the get-go, just utterly broken from the get-go. And so, it seems to me that the THT analysis is just, it's hard under any circumstances. It's even harder here. Yes, no, absolutely. I do think the First Amendment is a tough area for originalists. I is a tough area for originalists. I definitely agree with you there, partly because, again,

at the time of the founding, I think we did have very different ideas about what is speech that should be protected. It's a difficult issue, but there is a lot of gratuitous commentary in this opinion against drag, I would say. He cites one group that has been very controversial, Gays Against Groomers. They were not cited in the briefing. He just kind of went out and did his own research and cited them about all of their anti-drag stuff, all of their criticism of drag as inherently sexualized.

And again, I know this is not germane to the First Amendment issue, but I do not view drag as inherently sexualized or inappropriate for children. We had a little tiff or controversy in our little suburban New Jersey town because for the Pride celebration this past June, there was going to be a drag performer. And then we heard that the drag performer had been canceled.

And so there was a lot of upset in the town because we thought, oh my gosh, is Summit, New Jersey, which is a pretty progressive community becoming the next Texas or something. It turned out that they just didn't like that particular drag performer because she had a somewhat risque name, and they replaced her with another drag performer. And lots of families came to the family-friendly pride event in Summit, and there was nothing sexualized about this drag performer. I think she wore a skirt down to her ankles. There was very little flesh reveal. There was no giration. There was nothing sexually suggestive. So I think what you basically have to be saying is that it is inherently sexually suggestive to have men dressed in women's clothing or vice versa, which, I mean,

heck, Shakespeare did. But I guess that has to be your position that that's inherently sexualized, whether or not it is risque or titillating or anything. Yeah, because, and this is something I've tried to impress upon people who say, what about the children, right? Is, look, indecent exposure laws apply to, no matter what, how you dress, right? Well, indecent exposure or not dress

so those kinds of law laws involving obscenity they apply no matter how you know whether you're a man in a woman's clothing or a man in man's clothing or a woman in woman's clothing there's a lot of neutral laws that uh neutral with regard to sort of gender that protects people, the public at large, and also children from lewd acts and sort of obscene acts. And so this idea that if you don't ban drag shows, well, then the kids are just at the mercy of obscenity is completely wrong.

There's already existing laws prohibiting things like obscenity, prohibiting things like indecent exposure. And you can enforce those laws. And so what are you left with? What you're left with in these kinds of analyses is that there's something quite specific about a man putting on women's clothing that elevates this into a whole different category constitutionally,

when in fact, the opposite is true, David, that if somebody is engaging in drag as a kind of political slash cultural expression, it actually brings it within. This is classic First Amendment protected expression, it actually brings it within. This is classic First Amendment protected expression. And they're getting the analysis, in my view, exactly backwards. No, exactly. And so when he basically is trying to say that there is no content or message to drag performance, I don't see how that can be the case. All of the other opinions in this area, and they've come out of pretty diverse jurisdictions, and they've come from pretty

diverse judges in terms of their politics, have talked about how drag is about questioning and complicating existing understandings of sexual orientation and gender and sexuality. So, of course, that is expressive conduct or symbolic speech or what have you. Of course, there is some content to that. It is not just, you know, again, indecent exposure. It's not just running naked through the public square. There is actual content to that. goes back to sort of the, what is the viewpoint? What is the content? What is the idea sort of being articulated here and then treats it as if it's not articulating an idea. And so, you know, he has this point and this is where he cites Truman.

Many free speech categories were subject to reasonable time, place and manner restrictions, but beginning in the 20th century, or I'm sorry, beginning in the late 20th century, free speech jurisprudence absorbed expressive individualism as the new synchonon of First Amendment analysis. And my apologies if I mispronounce synchonon. Express it, and he cites Jeffrey Kaplan,

and he cites Carl Truman. So he's saying what we're dealing with is like this expressive individualism. These are people expressing themselves, expressing their ideas, expressing their challenges or to, you know, recognize gender norms, or maybe they're just, David, trying to be funny. You know, you don't necessarily have to be making a, you know, dissertation level statement of your reviews for it to be protected by the First Amendment. We've sort of forgotten about things like camp or humor or trying to generate an audience reaction.

All of this is expressive. It's related to your content of your expression so it's a it's a really i mean even with the fifth circuit um occasionally straying from sort of the general first amendment line it's really hard for me to see this being upheld on appeal and i suspect it will go up the students in this case are represented by the Foundation for Individual Rights and Expression, which you led previously, FIRE, and they issued a statement saying, quote, FIRE strongly disagrees with the court's approach to First Amendment analysis and its conclusions. We will appeal, and our fight for the expressive rights of these brave college students will

continue, close quote. So, this is not going away. close quote so this is not going away all right okay so our fourth and final case um this is net choice versus bonta and this was an injunction against california's ab2733 um boy dav, when this case goes up and when there's presumably a Ninth Circuit ruling here, we'll probably want to just dive into all of the details of AB2273, but we're running out of time and it's really complicated. But what is it? AB2273 is called the Age-Appropriate Design Code Act. And this is a really broad restriction that is really aimed at this problem that we see. And it's a very real thing

that people are concerned about, David, which is the impact of the internet and social media on the mental health of kids. Again, we're not going to give you the full summary of the act, but here's just a brief part of the decision. And it says this new California law goes far beyond the scope of protections offered by federal and other state laws, for example. So, whereas other California law limits the collection of user data by operators of websites and services

directed by children, this new law declares that children should be afforded protections not only by online products and services specifically directed at them, but by all online products and services they are likely to access. Previous law protected children

under the age of 13. New law goes all law protected children under the age of 13. New law goes all the way up to the age of 18. Previous law gave parents the authority to make decisions about the use of their children's personal information. The new law changes that authority. The new law requires online providers to create a data protection impact assessment identifying for each service online product a feature likely to be accessed by children any risk of material detriment to children etc i mean it is goes on and on providers must create a timed plan to

mitigate or eliminate the risks identified before the online service product or feature is accessed by children. It's really broad. And I'm not that interested in the analysis here as to why it was struck down. Essentially, what happened here is that there was a mix between commercial speech, which sort of has one kind of standard, a much more lax standard of judicial review with more classic protected speech, which has the strictest layer of scrutiny. And that circumstance, the court says, when you've got this sort of hybrid, we're going to go with the stricter level of scrutiny. But there's one thing I want to talk about here and raise with you, David, and this is sort of advice to lawmakers.

sort of advice to lawmakers. I have written, debated on AO about limitations on access of pornography, children's access to pornography, recognizing that there is a real First Amendment issue there, not because kids have a right to see pornography, but because limiting children's access cannot excessively limit adults' access when adults have much broader rights than children in this context. This is something different. This is not just talking about pornography. This is talking about the kind of information that kids arguably not only have a right to consume, to see, but to produce, to make. And so this idea that you can sort of say, well, okay, once we're talking about for the children, then it's kind of the magic wand that waves away the First Amendment is just

fundamentally wrong. And that, in fact, a lot of the regulation of the internet as applied to children is going to run into constitutional problems the instant putting aside the complexity and difficulty of applying that we've already talked about in previous circumstances of applying a rule for kids

without excessively injuring adult rights. Here, what's really different, David, to me is you're actually talking about, say, the state is saying, well, on net net, we think the internet is kind of bad for kids or aspects of it are bad for kids. And we're just going to kind of bulldoze into that. And then on the other hand, sort of the kids through their counselor saying, we've got rights in this context, not just the adults. I think that's a big difference here. No, absolutely. Absolutely. Just, yeah, in terms of some clarifications, I think you mentioned the issue of the standard for commercial versus non-commercial speech. Here, the judge, Judge

Freeman, said that even if you apply the lower level of scrutiny, intermediate scrutiny, even assuming arguendo, that's the standard that applies, this law is still insufficiently tailored to advance the state's interest in protecting minors online. And she acknowledges, I'll quote from her opinion, quote, the myriad harms that may befall children on the internet, close quote. So again, people always say, what about the children? Well, she's not unmindful of the children. It's just this law is not sufficiently tailored, especially in terms of protecting the rights of adults as well. The other thing I would just point out, again, sort of picking up on what you were saying earlier, is there are various laws floating around right now about age of verification and

such. We talked about a couple on this pod before. There was last month one preliminary injunction of Arkansas's law. There was also a preliminary injunction of Texas's law. In this case, Net Choice v. Bonta also arises in the preliminary injunction context. But you do have to look at what is being regulated. So the Arkansas law applies fairly broadly to social media, whereas the Texas law focuses on pornographic websites. And so I think it is going to be harder if you are trying to regulate social media or the internet more broadly, like the Arkansas and California laws versus pornography, which was the target of the Texas age law. Right. And I do think, and you know, a lot of my First Amendment friends have been a little bit peeved at me over the

arguments I've made about pornography and kids. And I think that we're actually replaying a lot of the arguments that I remember, David. I'm still older than both you and Sarah. So that I remember from going all the way back to law school in the early 90s that we're playing out over offline pornography. Free speech advocates kind of split in that world as well. So the secondary effects doctrine, which applies in that world as well. So, you know, the secondary effects doctrine,

which applies in that world, has been very controversial within free speech circles, for example. So, in many ways, you're seeing a rerun of that argument, and it will continue to play out. But what's the main thrust of that argument often deals with technical realities, such as, for example, someone saying to me, David, you're crazy if you think you can create a regime online that protects kids from accessing pornography that isn't also extremely intrusive to adults. That I'm just wrong, that as a matter of sort of technical reality. And, you know, the court may very well say, well, in theory, you can apply some of these offline principles to the online world,

but we're just not there yet, or it's just too much. It's just too difficult. So that's one kind of issue. This case is really not that at all. And it really goes to this issue of, okay, when can the state decide that speech that's otherwise protected is so harmful to, say, minors that we're going to just walk in and start to regulate.

And there's just not a lot of evidence. Unless, for example, the government owns the airwaves, say, and you're going to limit nudity in broadcast television. But again, that's when the government is owning the airwaves. There's just not a lot of evidence that you can sit there and say, okay, well, we've deemed that the speech that would be otherwise constitutionally protected, even as applied to kids, is sort of now too rough on them. It's now too tough on them.

And I think the opinion was interesting when it highlighted that previous legislative tools gave more power to parents. This gives more power to the state. I think one thing to keep in mind whenever you look at these First Amendment cases is who, of course, you have to think about who is the speaker. And I think you also have to think about who is the would-be censor because you have a lot of situations where, okay, maybe it's the government or maybe it's a private actor that the government is trying to conscript, whether it is a bookseller in the book people case or whether it's a social media or online company in these cases like the ones involving NetChoice. You do have to tease out or figure out what is going on here. There are

issues about compelled speech. We talked about the social media and cases involving content moderation. We talked about the case involving Biden administration's attempts to get social media companies to do certain things. So it is sometimes very tricky to figure out who is the actor here, but you do need to tease that out because the standards and the analysis will depend on who is the entity that is out there trying to regulate or control or, quote unquote, censor the speech. NetChoice has been very active. It's an industry association or a trade group, and its members include a lot of the big tech companies, Amazon, Alphabet, aka Google, Meta, aka Facebook. And we're waiting for this. This week will be the Supreme Court's long conference where they look at all these petitions that have piled up and decide what they're going to hear. And they almost surely will hear those NetChoice cases coming out of the Fifth and Eleventh Circuits, where the circuit courts reach divergent conclusions on these Texas and Florida laws, which have a lot of similarities

in terms of requiring social media companies not to, quote unquote, censor the views of conservative speakers. But that, of course, rubs up against the platform's rights to regulate the speech that appears on their bandwidth. So that's going to be very, very interesting. I'm sure the Supreme Court will agree to hear it. The Solicitor General's office has urged the Supreme Court to hear it. And again, you have a circuit split, you have major laws out of two of the largest states in the country, you have interesting, naughty constitutional issues. So that will be very, very interesting. Yeah, absolutely.

And I guess, do we need to disclose when it's just you and me that husband of the pod, husband of the pod, Scott Keller, Sarah's husband is, represents Net Choice in, is it both? Is it the fifth and the 11th? He represents them in one. And I think maybe Paul Clement represents them in the other. And so people are wondering, oh, who will get the opportunity to argue that case?

Will they divide the time? I don't know. It'll be very, very interesting. I'm rooting for Scott to argue it. His most recent case, he won at SCOTUS. He won the OSHA case at SCOTUS. Yes, that was a huge case. Huge case.

So arguing for go, Scott, go on both the outcome, in my view, and also in arguing it. But yeah, we will see. Before we go, David, I was really intrigued by your newsletter. And you named Judge Pauline Newman, who, fact check, is 96 years old, not the 3,000 I indicated earlier, 96 years old, involved in a fight over her future and her circuit. And she's on the federal circuit, and her colleagues are essentially trying to force her retirement, which is a really interesting issue that I don't think we're paying enough attention to because everyone sort of looks at it and says, you're 96. Of course, right? But there are broader issues here. So you named Judge Pauline Newman, Judge of the Week

in original jurisdiction, which if you're not subscribed to, subscribe to it. Walk us through, why is she judge of the week? Yeah, so I do these weekly legal news roundups every week for original jurisdiction. And I go through different categories like lawyer of the week and judge of the week, because I find it is a useful way to organize the information. And this week, I highlighted Judge Newman, who I think was in many ways the most talked about judge. And the reason is that her battle with her colleagues on the Federal Circuit, which hears a wide range of federal cases, but mainly I think it's best known for its patent stuff. Her conflict with her colleagues

in the Federal Circuit has reached a new stage. Her colleagues issued a unanimous order suspending her for one year, basically keeping her off the bench and not allowing her to hear cases for one year. And this is basically taking away somebody's federal judgeship, essentially, without any kind of impeachment process along those lines. It arises under the Judicial Conduct and Disability Act, which is this 1980 law, which is supposed to allow courts to remove or temporarily suspend colleagues who have engaged in misconduct or are unable to function.

And the act provides that judges can be barred from hearing cases, quote, on a temporary basis for a time certain, close quote. But this is a one-year order that is renewable. So it does raise the prospect of Judge Newman never being able to hear cases again. And I am less interested in the merits of whether or not Judge Newman, who is, as you mentioned, 96, is on the ball or not. There's conflicting evidence on that. Some people say she is really sharp. Other people say,

no, she's out of it. But what I was just really troubled by, and I've written about this before in original jurisdiction, is how this case was not transferred to the Judicial Council of another circuit. Because there is so much inside baseball here, it is clear that there's a lot going on in terms of grudges and personal relationships between Judge Newman and her colleagues. And in situations where a circuit judge's conduct is under scrutiny, things typically get referred to another court. But the Federal Circuit declined to refer this, and they did the investigation, and they then just issued their order suspending Judge Newman.

She's going to appeal this to basically the Judicial Conference of the United States. So now, finally, some outside eyes will look at it. But I was just really troubled from a due process perspective about how this case involving a bunch of circuit judges trying to oust their colleague, a colleague who is known for her frequent dissenting in that court. I was just troubled by why they didn't send this to an objective other circuit. I would not really be so troubled by the outcome if another circuit conducted the investigation and signed off and said, look, Judge Newman is unfortunately, despite her decades of contributions to the federal bench,

unable to discharge her duties. That would be one thing if another court did it. And this failure to send the case to another circuit has been condemned by a bunch of judges, including two former chief judges of the federal circuit and also former chief judge of the Fifth Circuit, Edith Jones. So I think a lot of us are troubled by just the process. And again, not about the substance. And one small point to make technically, not about the substance. And one small point to make technically, this proceeding is not because she is unable to discharge her duties. They narrowed the complaint. They are now going after her and suspending her for a year because she refused to submit to a medical examination. And Judge Newman, through her lawyers, has said, I will submit to a medical examination, but you need to transfer this case first so that it is not all under the

control of my colleagues with whom I clearly have issues. Yeah, you know, this raises a good sort of meta point about due process because to what extent do we trust institutions, especially public institutions, to engage in self-policing? Now, sometimes it's kind of, it's very difficult to avoid given the separation of powers and the structure of our system that, for example, Congress is going to set its own rules. And you're going to have it to an extent to which the judiciary is going to police the judiciary. But to the greatest extent possible, self-policing is a bad idea. I mean, to the greatest extent possible, limit self-policing because it's fundamentally a bad idea as only thousands of years of human

history illustrate. And when you think about it, there's not that many institutions in American life that are truly self-policed as much as the judiciary is. Now, the judiciary, and I'm not saying that I think the judiciary is functioning quite well compared to other branches of government. But when it comes to this issue of accountability and policing itself, there's just too much sort of latitude given to each individual circuit in my view so i i think that's the right formulation i don't think it's that disruptive at all to any of the circuits although i'm i'm very open to you know a a listener providing argument to the contrary but transferring this this dispute over to another circuit doesn't strike me as

terribly burdensome. And look, again, I'll say this again. I've said it a million times. I think the federal judiciary is our best functioning branch of government. But self-policing makes you vulnerable. It makes you vulnerable. And if we want to improve trust, and in many ways, improve trust in a way that will allow people to actually see and recognize how healthy the institution is overall,

I think your analysis is really sound. This has not been the David and David disagree show. Well, I'll just make one point to give the other side its due. The order does go into why they decided not to transfer this. And they claim that one, there were no exceptional circumstances, but pretty much every other circuit that has had a situation involving a circuit judge being under scrutiny has viewed that as exceptional circumstances. It's different

when a district or magistrate judge is reviewed. And in those cases, the circuit courts have been happy to handle the matter themselves. But when it's a bunch of circuit judges reviewing actions by a fellow circuit judge, that usually does get sent out. So I don't understand their denial of exceptional circumstances. And then the second argument they make, which goes to your self-policing point, is they say, well, we are so much better to equip to handle this because we're dealing with Judge Newman day to day. We're in the trenches. We know all about her. But that is the whole argument about why we have recusal and why we have transfer and why we have the principle that no person should be a judge in their own case. In most cases, if you're the fact finder and the

adjudicator, we don't want you to have firsthand personal knowledge of the players and of the facts. It will be like a judge who has a case before her involving allegations of sexual harassment at her former firm. And she says, well, you know, I should handle this case and not recuse because this is my former firm. I practiced with these people for years. I'm in the trenches. I know these people better than anyone else. We don't want the judge bringing their personal knowledge and personal opinions to the dispute. We want somebody who's a blank slate who's going to review this fairly and objectively. So I just found the argument of the federal circuit that, well, we know Judge Newman the best. We know how terrible she is because we're dealing with her day to day. That's the whole

point why you would want to recuse. And again, one final point on this. It's not necessarily about impartiality. Let's assume that Chief Judge Kimberly Moore and her colleagues can investigate impartially. It's about the appearance of impartiality. And Judge Newman has been called the great dissenter of her court. She frequently disagrees with her colleagues. And so to have all of them trying to exile the great dissenter of their court without any outside check, that does seem like a bad example of self-policing. Yeah. Well, thus endeth this podcast of agreement. David, I really appreciate you filling in for

Sarah. And it'll be see you later, not goodbye, which I know from the feedback from the listeners is a good thing. They do not want it to be goodbye. They just want it to be a see you later. And again, can't emphasize enough our gratitude for you filling in. And yeah, as I said at the beginning, you've been so good at it. I'm like slightly bitter

that everyone loves the podcast because of you. So I appreciate it. It's been a pleasure and an honor, but I will say I look forward to the return of Sarah and to sitting back and relaxing and listening to the two of you break down the legal news of the day. So again, thank you so much.

It's been wonderful. Well, thanks very much listeners as always. And our next podcast will be the return of Sarah Isker live in person, Georgetown University Law School. So I'm really looking forward to that. And so you'll hear from us again on Thursday.