Advisory Opinions - The Island of Rationality and the First Amendment

Episode Date: August 4, 2026

Welcome to First Amendment-a-palooza, where headliners Sarah Isgur and David French play the classics like: “Are license plates government speech?” and “Three cheers for Citizens United,” as well as “Owning a copy of Mein Kampf means you’re an idiot, but it’s still private speech.”  The Agenda: –Immigration issues –Citizens United will be overturned –Gender, protected speech, and school counselors –Suck it up, Virginia! –Black Lives Matter protests and injured police officers –Listener mail bag Show Notes: –Faces of Intratextualism - Akhil Reed Amar –Walker v. Texas Division, Sons of Confederate Veterans Inc. –David Lat’s Substack –Garcetti v. Ceballos –Opinion: A Very Dangerous Ruling in New Orleans Order Sarah’s book here. Advisory Opinions is a production of The Dispatch, a digital media company covering politics, policy, and culture from a non-partisan, conservative perspective. To access all of The Dispatch’s offerings—including access to all of our articles, members-only newsletters, and bonus podcast episodes—click here. If you’d like to remove all ads from your podcast experience, consider beco Learn more about your ad choices. Visit megaphone.fm/adchoices

Ready? I was born ready. Welcome to advisory opinions. I'm Sarah Isgher. That's David French. Well, David, if we did Crime a Palooza last time, we're going to do First Amendment of Palooza this time, all in honor of Lala Palooza being in your hometown right now, your new hometown of Chicago. And, I mean, there's a lot to cover. Most of it's like, is this government speech? We're going to do like game show style. Is this government speech? And what happens if it's government speech?

Do we then just have this beautiful proliferation of diverse opinions and thoughts and tolerance? Or do we not have nice things? And we'll end with a conversation about the First Amendment and protests. And when does negligence theory and foreseeability come into play a Fifth Circuit on Bonk poll about the Black Lives Matter protest that ended in the injury of a police. officer. The Fifth Circuit allowing that to go to trial, you and I maybe don't see eye to eye on that, as well as some questions from listeners and a great correction, like, concerningly good. Really good. Yeah, really good. Says he's a one L. I'm not so sure. All this and more on advisory opinions. David, before we happen, I'd be remiss if I didn't remind everyone about our delightful

Scotus blog podcast extended universe. Of course, you've got Will Bode and Dan Epps over. over a divided argument. But I got to tell you, Professor Akeel Amar and Andy Lipka over at Amarica's Constitution, really crushing it in their last episode. Okay, so here's their description of it. Faces of Introtextualism.

We continue our survey of the Roberts Court over of constitutional cases with particular emphasis on the series of cases that concerned making rules for voting and for voting districts. These cases make particular use of intrastualism, a term coined by Professor Amar that provides tools and traps for textual

analysis of the Constitution. As it turns out, it is also valuable on some of the most important themes and cases in the history of the nation, including Brown v. Board and its companion case Bowling v. Sharp. A listener's question takes them down this road, which intersects with their prior path in fascinating ways. Anyway, it was a great episode. Faces of intrastualism, because God knows, David, we don't talk enough about sort of the intersection of text history and tradition and textualism and originalism. So, you know, if you need more, we've got more for you. My only critique, Sarah, is I just wish they were less provocative in their titles, because that's just so clickbaity. Right. I thought the over of constitutional cases was a little

bit populist. I mean, come on, guys. Is this BuzzFeed? What kind of organization are you running, Sarah? Are you allowing this kind of stuff? Well, David, speaking of clickbait, are we about to overturn citizens united? Wait, whoa. Nah, that is click baby. Okay, but before I get to tell you why that may or may not be true, we're going to do immigration. Last Thursday, the 7th and 9th circuits issued two to one decisions tackling some immigration law that's made some headlines.

I'm going to read here from David Latt's write up in original jurisdiction. It's a complex question of statutory interpretation involving the Immigration and Nationality Act. Here's the opening of the Ninth Circuit's opinion by Judge Daniel Bress, Trump appointee, in which, by the way, the Trump administration is going to lose. Historically, the law regarded unadmitted aliens present in the interior of the United States as subject to release on bond during the pendency of their removal proceedings. That understanding persisted after the 1996 amendments. to the Immigration and Nationality Act.

Following those amendments, and over the course of many presidential administrations, the government treated these unadmitted aliens present in the interior of the United States as detained, which allows for release on bond. A different provision requiring mandatory detention was understood to apply only to aliens who were seeking to enter the United States at the border. The government recently changed its long-standing approach. It now contends that unadmitted aliens present in the interior of the country, are subject to mandatory detention without bond based on revisions to the statute that Congress made in 1996.

The government's change in policy has resulted in detaining aliens filing thousands of habeas petitions in federal courts across the country, seeking bond hearings, and possible release from detention. Some of these detained aliens have resided in the United States for lengthy periods. We conclude that the text, context, and structure of the Immigration and Nationality Act, considered as a whole, did not direct such a significant yet overlooked change in the law. Although no reading of the complicated and interrelated textual provisions at issue here is without some shortcomings, the historical understanding of the statute is the better one. The Seventh Circuit decision, by the way, came out the same way, and that means there is now,

David, a six to two circuit split on this issue, and six out of the eight rulings were two to one. overall Republican appointees have been more likely to side with the Trump administration, but two of the six decisions against the administration were authored by Trump appointees, the Ninth Circuit one I just read you from, as well as the Second Circuit one. So this is definitely going to the Supreme Court. There was also, David, that really interesting Fourth Circuit decision, which is like adjacent about the actual habeas petitions themselves. In that one, there was a J1 exchange visa for a postdoctoral fellowship.

He and his wife reside in Rosalind and oppose the war in Gaza on social media. As a result of their social media and associations, this guy was detained outside of his home by ICE officers and was informed that he would be deported from the country. After detaining him, the government moved him from state to state and detention center to detention center over the span of just a few days. he filed a, well, his lawyers filed a habeas petition in the United States District Court for the Eastern District of Virginia, where he lived, was first detained, and where the first three detention facilities holding him were located, and presumably where his lawyers thought he still was because they weren't informed that he had been moved. The government sought to dismiss his habeas petition, contending that the district court lacked habeas jurisdiction because Surrey was no longer detained in Virginia. This was also a two-to-one decision, David, with the two- judges on the Fourth Circuit saying that was a, you know, thumbs up habeas petition. Like, it's okay that it was filed in the Eastern District of Virginia. But Judge Wilkinson saying, hey, just a reminder, everyone, we're going to have to apply this rule to everyone, not just

immigration people detained by the Trump administration. And of course, habeas means, show me the body. and if the judge doesn't have the body in his jurisdiction, what are we doing here type thing? Which is all to say, David, immigration, making a lot of headlines, definitely going to SCOTUS, definitely a big mess. Huge mess. I have written about this at length when the Fifth Circuit issued a ruling. We'll put that in the show notes. Guys, this is complicated. This one is complicated. You have two statutory provisions. It's not obvious from them. I think the better reading is the majority reading so far. There's also Eighth Amendment issues here because one of the things you're dealing with is the potentially indefinite detention of individuals in civil proceedings, not even criminal proceedings. Indefinite detention and civil proceedings often in very rough conditions, especially lately.

And so this case is screaming up towards SCOTUS. I mean, I would be so surprised if SCOTUS didn't decide this next upcoming term. And so let me just say this. We're going to have lots of opportunity to talk about this case. If we're going to have a lot, I'm going to go ahead and put on my Nostradamus hat. We're going to talk about this, Sarah. Okay, David, it's First Amendment time. We're doing Citizens United.

We're doing private speech. Buckle up. I think Citizens United might be about to be overturned. That is ClickBed. Okay. Also, let me like nuance almost every word in that sentence. The state of Maine passed a law which put limits on the amount that a person can contribute to a political action committee that does independent expenditures, so a super PAC. Same way that you have contribution limits to direct candidates.

This has gone up to the First Circuit. They just had oral argument. and I listened to it. And I don't know, David, I think the First Circuit might be about to uphold Main's law. And now you're wondering, what about Citizens United? And here's what is totally wrong about the clickbait headline I gave you. Citizens United has nothing really to do with super PACs.

It has to do with independent expenditures and corporate movies, books, things like that. This case called Speech Now, which comes from the DCC. Circuit that the Supreme Court never took, that's the one where they're like, yeah, and super PACs. That's, that counts, sure. So really what the First Circuit may be about to do is to take a huge chunk out of speech now. And the question is, will the Supreme Court have to take it at that point? And will they nuance Citizens United one way or the other?

Either they've got to say, yeah, yeah, speech now from the D.C. Circuit, that's what we're talking about. or they've got to say, yeah, yeah, Citizens United had nothing to do with potential contribution limits to Super PACs. Okay, so that's what's at stake here, David. Let me tell you, again, why this is actually a little bit harder and weirder than it may sound. The Bipartisan Campaign Reform Act of 2002 had all sorts of things, one of which was just struck down this term at the Supreme Court. actually that was in the previous law too, but whatever. The coordination limits between parties and their candidates, for instance, the overall cap on how much someone can contribute in a single cycle was struck down in a case

called McCutcheon. You know, there's been all this stuff. But at the end of the day, the big one always is Citizens United, and everyone misunderstands what Citizens United actually says. Citizens United is and only is about this movie called Hillary the Moon. movie. It is critical of Hillary Clinton and they've wanted to release it in the run up to the 2008 primary elections involving Barack Obama and Hillary Clinton. But under the law, you couldn't release anything that advocated for the election or defeat of a federal candidate

within certain time windows of an election day. At oral argument, the Solicitor General's office under Barack Obama was asked. Does this mean that the government can ban books? You know, it's like a 400-page book and on page 401. It says, and that's why you shouldn't vote for Bob. Can you ban that book? And the government said, yes. Now, the case was re-argued.

Then Elena Kagan argued it for the Solicitor General's office as Solicitor General. They ask her the same question. And she says, no. And the follow-up is, what about pamphlets? And she's like, yeah, we can definitely ban pamphlets. And it's like, okay, what are we doing here? So Citizens United at the end of the day says a corporation can spend its own money as long as it is not coordinating with candidates, even if it's mentioning candidates, movies, books, all these things that we sort of take for granted is what Citizens United is about. I have no idea how this turned into the boogeyman case that everyone says it is or wants to amend the Constitution to overturn Citizens United. Really? You didn't. like the documentary bringing down the house about AOC, because she's up for election every two

years. It would be really hard to release a documentary or a movie at all or a book about any member of Congress without running into these limits of timing because of the primary elections and then the general elections. So how do you get super PACs? Well, this case called speech now comes after it. And speech now basically says the same thing for independent expenditure political action committees. They're like, yeah, you can sit around with your friends, form a pack, and as long as you don't coordinate with the candidate, you're also welcome to spend all the money that you want. We get super PACs. David, I am one of the weirdos. It's like just me on an island, thinks Citizens United was correctly decided, and hate super PACs and thinks they're bad for politics. Oh, why do you think you're the only one there? Like, are you on my island? I'm on there. I'm so on that island. Oh, I'm with you. Sarah, I'll be your Wilson, the volleyball. I was going to say, we're going to start talking to coconuts pretty soon, but great.

I know. So, yeah, I think that that's just kind of plainly correct. Because when you think about it, what is the SuperPack? A SuperPack is the mutant child of the weird campaign finance system that we have, that you wouldn't necessarily really have Super PACs. they would be an extraordinarily inefficient way to allocate money if you didn't have a labyrinth of regulations around supporting an actual candidate and an actual political party. And so the super PACs are sort of the brainchild of those who look at the labyrinth and say, aha, there's ways around this and there's ways around that.

And so the super PAC is sort of the perfect representation and symbol, in my view, of how complexity is a subsidy for the wealthy and the connected. So what you've done is you've created a situation in which it is more difficult for the average person to participate in politics, but not at all difficult for, say, Elon Musk, because he can hire all the lawyers he needs, he can create the super PACs, he can do all of it. But if you're just somebody, let's say you're a dentist and you want to write a check to your local candidate, well, you're going to have big limits there. Well, you want to invest more into it. Well, then we're in complicated land.

Then we're in super complexville. And this is where this gets to my point about how the entire campaign finance system, in many ways, is set up in a way that really does violence to sort of the very core purpose of the First Amendment, which is the protection of political speech. So we're making political speech much more complicated, much more expensive in many ways. So I think your island is rational—your island is the Isle of Rationality. That is what it is called. Okay.

So, David, I think we all know, I mean, this is my, like, Jurassic Park Life Fines Away. Like, Super PACs are, you know, the velociraptors hatching eggs. Money finds away. Yeah. My preferred solution, as I think you all know, is to get rid of the thing that's causing the distortion, which is the low federal limits. So I haven't given a lot of thought to all the solutions that aren't my preferred solution. And that's very un-a-o of me, don't you think.

So this First Circuit case is about a solution that I don't like. It wasn't on my list, but I've been grappling with it all weekend. And David, it's worth a conversation. So as we started out, right, Maine passes this law that, like the limits that I don't like, direct to candidates, creates those limits now for the super PACs as well. any political action committee including independent expenditure packs, super PACs. $5,000. Now, under Buckley and all of the Supreme Court cases since then, there are only two reasons

that you can limit all of this stuff under the First Amendment. Quid pro quo corruption and the appearance of quid pro quo corruption. That's second one's a doozy because like, is it everything? Is it nothing? it's really hard. It's jello on the wall. So what Buckley said was, this means that there is no interest

in preventing quid pro quo corruption from someone spending their own money, but there might be in contributing money. So that's how you get the campaigns can spend as much as they want, but they can't take in donations in as much as they want. That's Buckley.

So here we have Maine saying like, Yeah, we're just applying that same logic, but now to these independent expenditure units. Because whatever you might have thought in the sort of speech now era in terms of what these independent expenditure units would be, they're now pretty much identical to giving directly to candidates. The candidate can solicit money for the super PAC. It can say, hey, this is a great super PAC that you could give to. They're being really helpful to me. And I would love if you gave them money. There's no problem with that. And the people who don't donate to the super PAC are publicly available. So the candidate can then see who gave them money.

Now, I don't have the data on, for instance, is someone who gives $10 million to a super PAC actually more likely to get, you know, a meeting on the books, et cetera, than someone who gives $3,000 directly to the candidate? But it wouldn't shock me, would it? No. I would not fall out of my chair in shock. Let's just put it that way. Wouldn't be stunned. So Maine has a pretty good argument that if you think that it's constitutional under the First Amendment to limit direct contributions to candidates, then this should be okay too. David, I don't think that's a crazy argument. I listen to the oral argument at the First Circuit. I think there's a great chance that there's at least two votes to uphold Maine's law and distinguish it from citizens united and speech now. It will then have to go to the Supreme Court,

which I'm super interested in. But I just wanted to spend a second. telling you what Maine will have then done, right? Like money finds away, right? Right. And all of these distortions add up to just further distort the playing field, which is why I like my version better than this version. So what will happen if Maine does this? Do you think you will have solved money in politics?

No, you will not have. Because remember Buckley said, you can spend whatever money you want of your own. So you will be putting a thumb on the scale for very, very rich people to run themselves, for sure, or to just spend the money themselves, as in like you will further take normal people out of the process. Now we're dealing with like the very rich normal people

who are giving to super PACs, but you're getting them out of the game. And now it's just like the ultra rich who can have just their own super PAC and their own independent expenditures, you know, on their front yard, so to speak, except they're billionaires. Like, this is going to have the opposite effect, I think, of what Maine wants. But I'm not sure that it's unconstitutional.

Well, here's the other alternative that is often floated. Just public financing of campaigns. We tried that. Yeah, it is a line item in the budget. And everyone's on the same playing fields from the major parties only. It gets also complicated as well, right? Does the Green Party get the same amount? What about the libertarians out there?

Guys, we definitely tried this. Now, again, under Buckley, you can always spend your own money, right? So public financing was an opt-in. As long as you reached X number of donors, major party candidate, blah, blah, blah. Then you qualified for this public financing. You might remember on your taxes you could check, like, I'll give a dollar to the FICA fund or whatever. Barack Obama was the one who ended public financing for campaigns because if you agreed to take the public financing money,

you were capped in how much you spent. It was a spending clause type relationship. It was a contractual relationship. And he was like, oh, no, I'm going to take in way more money and be able to spend way more money. If I don't take the public financing, that was in 2008 against McCain, and we've never had a publicly financed election since then.

So public financing- Through the fundraising limit. Yeah. We're done with that now. For the same things, right? Every time you try to plug a little hole, the water will come out a different crack in the rocks. So I think this is all kind of dumb.

But David, it is like gearing up to be probably the biggest, like, culture war level case that the Supreme Court will have had, even maybe given last term. Like, even, I mean, this is tariffs birthright citizenship level at least. I, well, I mean, that's a bold declaration. Revisiting Citizens United? It's definitely big. But the thing is, revisiting Citizens United sounds huge if you adopt the way in which Citizens United is the shorthand version of everything that's wrong in campaign finance.

But if it's revisiting Citizens United in the sense of does it apply to Super PACs, it's much more limited. But I hear you, anything with campaign finance, especially in this era now where, you know, billionaires are extremely focused on politics. and in a very, very, very public way. It's weird to me how Citizens United has become a sort of a shorthand version for Elon Musk in politics

or George Soros in politics or Mark Andreessen or you name it. You know, like these big, big political, Peter Thiel, these big billionaire political hitters. And Citizens United is just the words that is, it's the phrase that is used to describe what people don't like about money politics. And yeah, it's going to be very interesting to see how this plays out.

All right, David. When we get back, I want to talk about government speech. We've got three cases. A school administrator in his office where he meets with students. Are those books behind him his speech or government speech? To that vanity license plate that you asked your state for, is that government speech or is that your speech? And three, those library books. I mean, my God, the once in future library books. But, um, oh my gosh. Yeah.

Is that government speech? We'll be right back. Okay, David, before I tell you the facts of this case out of the Ninth Circuit, I actually just want to do all the hypotheticals, right? Okay. So, um, a teacher in their class, has a wedding photo on their desk. Is that government speech or private speech?

Private speech. Does it matter whether it's a wedding photo between two men? Does it not matter. It's private speech. If a student says, what is that picture? Why are two men in tuxedos on your desk? What is the teacher allowed to say? To describe the picture. Okay. What if the teacher instead of said wedding photo, now that teacher has a book on their desk. Is that book government speech or private speech?

Tell me more about the book. Does it why does it matter? Why does it matter? There are pieces of paper that are bound by leather on the teacher's desk. Is that government speech or private speech? If it's the textbook, it's government speech. It's not the textbook. They brought it from home.

That's why I had to ask. Private speech. It's mind conf. You're an idiot, private speech. The student says, what's that about? You explain. You're an idiot, private speech. The student is Jewish and horribly offended and starts crying in class and every day they come into class, they cry.

Is it still private speech? Well, then we're going to get into a Title VI analysis. Does the exposure, because that's not so much a speech analysis, private or public speech, as it is a conduct harassment analysis. And is the, is Mind Comp directed at that person? In other words, is this a directed action? would be one of the key questions. And so depends on the facts. Okay.

It's recess and all the students are heading out of the classroom. And one student is like, hey, what's that book? And the teacher's like, oh, it's mine comp. And like kind of explains, you know, factual analysis. And the student's like, hey, could you read a few pages to me? Private speech. All right. Let's do the facts of this case.

This is a school administrator who is not a teacher, but does occasionally meet with students in their office room that is on campus. In fact, they have some offices at different elementary schools around the district. Behind the desk, there is a bookshelf and a windowsill. On the window sill, the teacher puts two books. One, I'm going to get the title wrong, David. It's like Wally the Walrus or something. So all the student is going to see is the title, Wally, the Walrus,

and the other book is called He is He, She Is She. Now, Wally the Walrus is a book about a little boy who wakes up one day and says he's a walrus. And the point is, like, no, you're not a walrus. You can imagine being a walrus. You can do all of that. But like, no, you don't become a walrus just because you say you're a walrus. You can see where this is going. He is he, she is she.

I don't even think we need to explain that book very much. Nobody notices or complains about these books because who is sitting there reading the titles of the books behind the person. you're meeting with, until a fellow administrator walks in one day, sees those books, goes home and Googles those books, figures out what those books about, files a complaint, gets an injunction. Gets very offended on the behalf of a lot of people who've not expressed defense at all. That's right. Gotcha. The school tells him to remove the books. He gets an injunction barring the school from making him remove the books. Okay? So far, so good. Then, funny enough, David, I know this will shock you, students start coming into his classroom and asking him about the books for the first time.

Streisand effect, Sarah, stricand effect, yes. Or the students were told to do it. Ah, true, yeah. Anyway, he explains what the books are and is promptly fired. Let me read you some from the Ninth Circuit decision. So, David, this was a two-to-one decision. First, this employee's speech occurred within the scope of his professional role. Huh?

It was confined to the environments, his offices, in which he was assigned to perform his duties and to times when he was with students. And the employee does not dispute that his speech was aimed at students. This case is therefore distinguishable from those in which a school employee engages in the challenged speech off school grounds

or while performing tasks unrelated to the school's ordinary operations and from cases in which the employee does not direct his speech to students. Second and most importantly, the employee's speech owes its existence to his position in the schools. He displayed the books in his offices where he interacted with students as part of his assigned duties, and the displays were visible to those students during evaluations and meetings. We've held that a teacher's classroom expression constituted government speech because it occurred in a setting where the public employer hires that speech, thereby retaining authority over the message conveyed to students.

Like the teacher in that case, the employee here was in a position to speak to students as an authority figure only because the school hired his speech. Indeed, an ordinary citizen could not have walked into his office and decorated the walls as he saw fit. But David, under that logic, you can't put the wedding photo up. So like a gay teacher would be fired, could be fired, rather, for putting a wedding photo on the desk because it's in the classroom.

That's even more, I think, in this environment analysis that they're doing, directed at students. Like, why is it on your desk if it's not directed at students? Like, this now means that everything in that teacher's classroom, including the crucifix. You brought your Bible from home and you've got it on your desk because you read it during a lunch break. A pride flag, like magnet. All of that is now government speech and you can be fired for it. This is...

Garcetti Delinda Est. I mean, this is what I've, we've talked about this a ton. And for the new listeners to advisory opinions, Garcetti versus Sabalas is a Supreme Court case that essentially said that any on-the-job speech, anything that is on the job speech, anything that is on the job is unprotected with a carve-out, not really carve-out, they just said, we're not deciding this for teaching and scholarship. So we're not deciding it. But if you're on the job and you're speaking, it is on the job speech.

And now they've been kind of, there's some questions, okay, for example, in the case of Kennedy v. Bramerton School District. Well, there are times when you're going to be maybe on school grounds, but not on the job. And when you're in that circumstance, that's going to be your own private speech. But it's just hopelessly complicated and lends itself to exactly these kinds of situations. When can you bring a book? from home and have it visibly displayed if you're going to be, let's say, reading in your spare time. And what circumstances can you interact with another human being as a freaking human being

and it's not government speech? And so, and this is going to be, as long as this culture war continues to rage out of control where people are essentially recruiting snowflakes. Like, oh my gosh, there's a book I don't like. I'm melting. I am melting. and then inflicting snowflakeery on the rest of us, this is just going to continue to happen. And I just keep going back, since we're going to talk about libraries, to the Pico v. Island Tree School District case,

where Justice Brennan says, and I know that that case is mostly useless because it has a plurality opinion that doesn't give you really any major guidance except in the most extreme circumstances. But he said something that was brilliant in the context of providing that unhelpful plurality opinion. And that was that American education,

one of the purposes of it is to prepare students for life and our pluralistic, often contentious democracy. And so if instead you're teaching people to flip out at the side of a book that you disagree with, you are absolutely contradicting the very purpose of American public education. It's not just reading, writing, arithmetic. It is training citizens.

Guys, this is absurd. Let me read you a couple paragraphs from Judge Van Dyke's dissenting opinion in this two to one. Let's go. Let's go. Could an American public school permit its employees to string up their own globalize the intifada banners in their offices while simultaneously banning any employees from personally decorating with the Israeli flag? Could public school administrators

establish a policy allowing office with partisan political messages deemed sufficiently compassionate, but prohibit, as inherently hostile, any political speech that did not align with the Democratic Socialists of America platform. Could teachers be encouraged to wear large red pins reading Make America Great Again during all student interactions, but only those pins? If your instinctual answer to each of these questions is no, exclamation point, you might be an everyday American. But according to the majority today, you vastly overestimate the First Amendment's guarantee of free speech in our nation's schools. In a decision that is irreconcilable with Supreme Court precedent, the majority announces an

expansive new rule that all expression by public school employees that might be observed by students is necessarily government speech and not the personal speech of an American citizen, even when any reasonable observer would perceive the speech as the employee's own personal expression. David, it's worth noting, of course, that if this is government speech, and this is what Judge Van Dyke is talking about, the government does get to discriminate on the basis of its message, right? Absolutely. So like, yes, if this is government speech,

they can make you wear the magapen, they can make you put up the Israeli flag, all of the above. The only reason you would be able to say no to that is if that is private speech, I think this is one of the more insane opinions that I've ever read. and all the more so shocking because David the whole thing was only 18 pages from the majority and like if you're going to do this man I need more than 18 pages to like understand why the parade of horribles isn't just like exactly what you held footnote by the way David I don't love that

the administrator brought those books in just like I wouldn't love if the administrator wore a maga pin or a globalize the intifada pin or anything else I don't think that's great judgment Agreed. But I don't think it's government speech. Agreed on all counts. That's why I said when you floated the mind confit, I said, idiot and a speech. The fact that you're foolish or you do something foolish doesn't mean it becomes government speech because it's foolish. It just makes it foolish.

It makes it unwise. And so this is why Pickering. This is why Pickering, period. That's the end of the pod. This is why Pickering. Yeah. because if you remember Pickering had the balancing test. So Pickering says if it's, if it is speech on a matter of public concern, then it's going

to bring in that First Amendment analysis. But then you're going to also have a second question. Have you engaged in conduct that's so disruptive? Is there a consequence in the workplace that is so extreme that it inhibits the ability, you know, in essence for the government office to conduct its work and its business, etc. Pickering did not create a free fire zone. What Pickering did was it put its thumb on the scales for free speech, especially on matters of public concern,

which is, again, core, core, core to the very notion of the First Amendment. So what was wrong with Pickering, guys? What was wrong with Pickering? All right, David, we're going to move to the next case, and I'm curious after we just gave like an ode to private speech versus government speech, what you think about this one? Guy puts in for his vanity plate in Virginia, F-T-P-A-Sand-A-T-F, by which he meant,

and this is a family program, F the police and alcohol, tobacco, and firearms is what that stands for. Virginia issued the plate but then revoked it on the grounds that it was vulgar and could be understood to promote violence. This dude sued alleging that Virginia had violated the First Amendment by recalling his personalized plate because of its message. The district court dismissed his suit, holding that his license plate message was government speech and not subject to ordinary First Amendment protections.

And guess what, David? Fourth Circuit flipped it and reversed it. Yep. What do you think? Easiest case in the history of the universe, Sarah. What? Yeah, absolutely. You think that's private speech?

Yes. But let me ask you this, because this is my perception. This is a little bit of a tangent. my perception is that Virginia is overrun with personalized license plates. It is, yes. It's amazing. When I drive through Virginia, everybody's got to, I would feel weird going to school in high school with something that was just like A7p-39X.

Scott, by the way, everybody's got a message. Scott's for his Virginia plates. He did not get a personalized plates. He just happened to get UUZ 1984. So we would just like ooze 1984. And like his favorite book is 1984. Like what were the chances of this? So I'm actually keeping the plates and bringing them to Texas with us.

This very much reminds me of the, I mean, I know there are distinctions, but it reminds me of our Boston flag case that you have opened up of, you know, in essence, you've opened up a forum. You have granted people, if you're driving through Virginia, when the last things you're going to think of is look at all these governments. approved license plates. What you're going to think of is, wow, Britney is really expressive with their license plates. I mean, it's very obvious. This is the driver's speech here. Very obvious.

Everything you said, David, is correct, except for, you're going to think Britney has, you know, special views. No, because they're going to get rid of personalized license plates, just like they got rid of the flag program in Boston. True. This is a quintessential. This is why we can't have nice things. Yeah.

or no posters on the dorm room doors or the faculty doors. Same thing. The second we say that it's your personal speech, it goes away. So in this case, David, the only reason that this is a little hard is because of a Supreme Court precedent called Walker v. Texas Division, sons of Confederate veterans from 2015. And let me just tell you, the guy who argued that is so sexy. He's just like the best-looking, smartest, most attractive.

You know, I have heard that, Sarah. Like, very few rumors like that reached my ears, but this one did. I also have this license-plated issue in that case. If you didn't follow that, my husband argued Walker. Okay. So in the Walker case, Texas had a specialty license plate design where you apply, anyone could apply to have a license plate design. You got, know what I'm talking about, right?

It's like in New Hampshire, they have live free or die. Or it's like, I stop for animals. and it's like part of the design of the plate, not the letters and numbers that are the actual license plate identification itself. So the sons of Confederate veterans applied to have such a plate. Texas rejected it and said it was government speech. This went all the way to the Supreme Court,

and Sexy McSexerston won the case, and the Supreme Court helped that it was, in fact, government speech. I'm sorry. I'm just imagining. May it please the court? Sexy successorson for Texas. To put it in, you know, if we were doing law school speak or whatever.

Okay, they held that Texas's specialty license plate designs, approved by the state and then made available to the public at large, convey government and not private speech. I think that is also clearly true because once the state of Texas gave a, you know, thumbs up to like, you know, the wildflower license plate, anyone could get the wildflower license plate. That to me quite clearly is government speech. It's being sold by the government versus the actual identifying letters. I think this is distinguishable.

I think it's fascinating, though, given how many more states have an issue with the individual letter problem than they do with the like license plate scheme that we only have a Supreme Court case on the scheme and not the letters. That is true. That is true. That's interesting. But yeah, you know, time and time again, Sarah, what we're getting to is life would be simpler if we could suck it up and tolerate seeing things that upset us. Or if we were just a little bit less prone to getting upset by the things that we see. You know, it's interesting. We were walking down Michigan Avenue yesterday on our way back from church, and Lollapalooza is going on, or it was, it finished last night. And when Lala Paloosa happens,

not only is there a lot of expression, you know, from the festival goers, but the whole moss-aisley canteena of public influence descends upon the land. You know, you've got your sandwich board juice. You've got your street evangelists. you've got your pro-Palestine people, you've got your pro-Israel people, you've got your black Hebrew Israelites, you've got a contingent to Jehovah's Witnesses. And a lot of the stuff that's going on, there's a lot of rough rhetoric going back and forth. And as I was walking down the street, I had two thoughts at once. I thought, America and if I was still practicing law, this is all my clients.

These are my people. These are my people. I would get to know all of you in my previous professional life, but we need to learn to interact with people who have views that we despise. We need to learn that. And so as far as I'm concerned, Virginia needs to suck it up. And if it's going to allow the personalized license plates, allow the personalized license plates.

And weird, we can handle it. We should be able to handle it. All right, David, last case on our is it government speech game show. The Arkansas General Assembly adopted Act 372 in 2023. As summarized by Arkansas's Attorney General, the law aims, quote, to protect children from obscenity and to increase accountability for public library curation decisions. To this end, the law's first section makes it illegal to furnish a harmful item to a minor.

In its fifth section requires public libraries to adopt written policies addressing the selection, relocation, and retention of physical materials in their collections, as well as the procedures they will follow when people challenge items in their collections as inappropriate. A group of plaintiffs filed overbreath and void for vagueness challenges against these two sections before they took effect. The Eighth Circuit gnaw dogs that pretty hard. Reasons. Section 5 requires public libraries to adopt two written policies.

Simply requiring libraries to adopt these policies does not injure plaintiffs. Plaintiffs contend that they will be injured when libraries segregate books into adults-only spaces. But nothing in the text requires libraries to do this. Rather, plaintiffs are speculating libraries might decide to segregate certain books as part of their curation policies, which they have not yet adopted, or in response to challenges which have not yet been filed. The Supreme Court has warned us not to endorse standing theories that require, require guesswork as to how independent decision makers will exercise their judgment.

This is plainly the case here. We cannot know at this stage what curation decisions libraries will make, what challenges will be filed, or how libraries will resolve them. Plaintiffs allegations of possible future injury are consequently not sufficient to satisfy the injury, in fact, requirement. David, this seems plainly right to me and that in it has some larger moral lesson on these culture war cases, I would like to raise the standing requirement. Like, I think this is totally correct, even at the lowest standing requirement. But in general, we have a whole bunch of people who instead of wanting to hash things out at the legislature or the school board or, you know, the city council, they want the courts to

hash it out every single time. They feel like this is a legal injury they have sustained when In fact, what they've sustained is maybe a political injury, but people think that the courts are now where you resolve disagreements. Right. And I think you're correct about the outcome of this case as well at this preliminary stage because we have a conceptual problem here with libraries, guys, and that is that there's only one library of Congress. There is only one library that we know of that tries to get all of the books. Every other library can only get a tiny fraction of the books. Even huge libraries have only a small fraction of the books.

And so you have to curate. You have to have, and if it's a library that is run by the government, it's going to be a government curation decision. Sort of to look at it this way, go back to our academic freedom arguments and discussions where we talked about the different layers of academic freedom. There's institutional academic freedom. and then there's individual academic freedom. And library curation is a classic example of institutional choice, institutional freedom. Now, what happens? And this goes to our incomprehensible PICO mess.

Pico involved a case involving public libraries, school library, see if this fact pattern sounds familiar. Parents go away to a conference where they're taught that certain books are un-American. They go to their libraries, their school libraries. They find these, quote, unquote, un-American books, and they want them removed. School district removes the books. Other parents, other people sue. And it goes to the Supreme Court. And the Supreme Court basically says this in a plurality opinion.

So it's not really binding. It's just instructive. Basically says, well, you can't decide to say, we're going to get rid of all books by black authors. Or we're going to get rid of all books by Democratic authors. But at the same time, they got a lot of leeway short of that. Remand, figure it out. And, you know, in an interesting way, I feel like the Supreme Court was directionally correct because there is to some degree, there is to some degree a right to receive information.

And if there is a systematic blocking of a particular viewpoint, do we get into a constitutional issue? Do we get into a constitutional question there? I'm open to that. I'm very open to that. But the default is that because you cannot have all the books, there is by necessity, a curation decision that has made the by. It just has to happen.

And so then the question is going to be by which standard, by which governing standard. And the answer can't be, well, then you have to have proportionate representation of all the viewpoints. That's an impossibility. What does that even mean? And so you just have to have a curation decision. And then to go ahead and sue on the front end before the curation decision has really been defined, it strikes me as correct to say that's all too soon.

It's just too soon. All right, David, when we get back, I've got one more First Amendment case for you. This one on protest speech, it's dividing the Fifth Circuit, but then again, what doesn't? David, we've got an en banc poll out of the Fifth Circuit. Six judges voted in favor of rehearing. Ten voted against rehearing. And it's an not obvious lineup for what that's worth. Let me read you, well, some of the facts, according to Judge Willett.

Baton Rouge police officer John Ford was grievously injured when someone hurled a rock or a piece of concrete into his face during a political protest. the assailant has never been identified, neither has the assailant's affiliation, motive, or connection, if any, to the organizer of that protest, D-ray McKesson. Yet today, the court sends McKesson to trial, not because evidence connects him to the assault, but because he was a prominent activist, allegedly helped lead demonstrators into a roadway, and could have foreseen that disorder might follow. So, David, you have 10 judges giving a thumbs up that this can go to.

trial under that theory of liability, something sort of like incitement under the First Amendment. And you have six judges saying, to what to what? To read again from Judge Willett, the Supreme Court has already called the constitutional issue presented here undeniably important, whether the First Amendment tolerates a negligent protest theory that substitutes the mere foreseeability of a stranger's violence for intent. After a decade of litigation, full-discipline, and another appeal, every threshold obstacle is gone. At last, the question is clearly presented. The First Amendment does not permit prominence to substitute for proof. And you've got, you know, quite an impressive dissent from Judge Willett arguing, no, you organized a protest, you led people

onto the roadway even. That is not a theory of liability when a stranger commits violence. But David, I guess, I kind of want to put this in a different context, which is something more like Charlottesville. Or rather, I want people, whatever your political priors are. If you're a pro-D. Ray McKesson fan, I want you to understand this has to apply to a Charlottesville-type protest. And vice versa. Because I think it's going to matter a lot what your feelings on the protest are of whether you think that it was negligent and, foreseeable and intent and all of these things. Yeah.

I mean, I think it's not going to shock anybody that I'm with Judge Willett on this one. And yeah, the difficulty here is you actually have somebody, an actual human being who threw the rock, who through the brick, who can be held accountable here. And then what they're doing is they're trying to move and radiate out and extend that. And, you know, one of the things about this, Sarah, is think about civil disobedience for a minute. Now, civil disobedience is it's supposed to be peaceful and then I'm supposed to accept the consequences of my action. So if I trespass, let's say you trespass into a school administration building. And, you know, one of the problems with the post-October 7th protesters wasn't that they were trespassing is that they were trespassing and believe that they should have no consequence.

As you put it, they believe much, they don't believe in letter from a Birmingham jail. As you put it, they believe in letter from a Birmingham Starbucks. They want to be able to break the law without consequence. Now, that I'm totally opposed to. But let's suppose you organize something that is supposed to be a peaceful protest, maybe not even civil disobedience, or maybe you're trying to organize something that is supposed to be civil disobedience. And somebody, a known entity, a known person, decides, on their own that they're going to launch an act of violence. It strikes me that this could cause

essentially cripple civil disobedience as sort of a valid way of expressing yourself. And even cripple in many ways, the ability people to organize peaceful, lawful rallies if they worry that somebody in that mix is going to do something and a jury would find it foreseeable, hot button issue, lots of yelling, whatever, that it would be foreseeable that somebody would become violent. I don't like this case. I do not like this case at all. I'm going to be very interested to see what happens going forward. But I think this is just a, this read the Judge Willett opinion. One half of AO at least is joining in it.

And yeah, I don't like this case. I'm going to read you from Judge Ho, who is on the don't rehear on Bonk, let it go to trial side. Where I ultimately part company with my distinguished dissenting colleague is that, unlike him, I see no violation of viewpoint neutrality in this case, only the dutiful application of a simple principle. The First Amendment protects protest, not trespass. This principle applies with equal force to pro-police protesters, or to say, pro-life and pro-choice protesters alike, who unlawfully obstruct a public highway. And plaintiff has presented ample evidence for a jury to put this case in the category of trespass, not protest, as our court has already detailed on more than one occasion.

I do think this gets to the heart of it, David. If you think it's civil disobedience and then someone gets injured by, you know, a stranger in the crowd, that's where this is doctrinally new. If you trespass and invite someone else to come along with your trespass, then negligence law applies. And so that's the split between the majority and the dissenters here of like, trespass has negligence and foreseeability stuff. we've got, I mean, that's like common law going back 100 bagillion years. The protest aspect, the First Amendment aspect is like, does that change the analysis? The majority's like, no, because once you trespassed, then you were responsible. That's what I think makes this hard.

I don't think it's just like you're having a protest. So now the First Amendment doesn't apply. It's like, to your point, David, it's civil disobedience, meaning you broke the law, in this case, trespass. trespass comes with a bundle of sticks, including this foreseeability and negligence law. So is it actually more neutrally applicable to say, if you trespass because you're thinking about stealing some copper wire, we would hold that negligence bundle of sticks to you. But if you trespass for the purpose of First Amendment activity, then we don't hold the negligence

and foreseeability standard to you? Like, that's the sort of weirdness of this. Yeah, it is a unique case. It is a, it's very interesting case. I think Justice Willett has the better of the argument, but I could imagine different facts. Well, let's suppose you're storming, you've stormed a factory, say to, you know,

or you're storming a drill site or whatever because you're protesting climate change. the aggression of the underlying action, I think, would be relevant. But walking through a road, which is a very classic protest activity, very classic protest activity, but with the twist of maybe you don't have the permit at this, you know, at this time, but it's also a road that would absolutely be used for protest. That is a... I mean, David, you're saying that should apply, like,

when they were blocking freeways and bridges, like, no, you would never get a permit to block a freeway. You definitely get permits to use a freeway. Like you, I mean, a road, you would definitely get a permit to use a road, like the Edmund Pettus Bridge, for example. Sure, but not like Los Angeles freeway that people were going out and blocking

with Black Lives Matter signs. Yeah. I think blocking roads without a permit is one of the most selfish, nonsense, things you can do. You are hurting people who are trying to get to work to their kids. And they're not, most time can't even see your message because they're stuck back in traffic that you've caused. There can be emergencies back there that you don't know about, women in labor, people having heart problems. I mean, I have no sympathy for people who don't go get the permit because the whole

point is the, like, someone needs to decide whether it is safe to shut down that road and how we're going to move traffic around it. You don't get to decide that. And if you do, I guess maybe I'm not that sympathetic to why you should get out of negligence law then. Now, there is a difference between I block the road. I should absolutely not get out of negligence law, right? If I block the road, I should experience all of the consequences of blocking the road. If I throw the brick, I should experience all the consequences of throwing the brick. the question is, who else experiences the consequences of the brick that I throw?

And that is, that's the issue at the heart of this case, which is not, if Derey McKesson threw the brick, he should. Nobody, like, that's not here. I get it. That's not here. Yeah. Yeah. So I'm 100% with you.

If you're blocking the road, the fact that you're blocking the road for climate change, that is not relevant to the liability that is imposed upon you. I'm with you 100% on that. Okay. So he blocks the road and not just him, right? He leads a hundred people to block the road. That causes an injury to someone who is stuck in traffic. Negligence theory applies because it was foreseeable that you would cause an injury to someone stuck in traffic. We're all on board with that and it doesn't matter that it was First Amendment tea. But you're saying you lead the 100 people to block the road. One of those people throws a brick. that has nothing to do with blocking the road.

Right. And so the negligence and foreseeability shouldn't apply to that because it wasn't downstream from the trespass, from the blocking the road. And again, I'm not saying no consequences for anybody. You have the brick thrower.

Yeah, yeah. Arrest him, sue him. I mean, you know, get all of the consequences that flow from throwing the brick to the brick thrower. All right, David. We'll see what happens at trial on that one.

I've got two AO listener emails to read to you. One. On a recent episode, David made the point that the federal constitution sets a floor for state constitutional protections so that Hawaii's due process clause cannot afford less protection than the 14th amendments. In Who Decides, Chief Judge Sutton makes a persuasive argument that this is a common misconception or at least as an unhelpful description. Though the federal constitution sets a floor for what protections a litigant will actually receive, it does not necessarily set a floor for what protections the state constitution affords. The distinction seems academic, but I do think it's analytically important. Before Dobbs, state courts and conservative states had to protect abortion rights under the 14th Amendment's due process clause. But they did not have to interpret their own due process clause to do the same. Preserving state Supreme Court's ability to interpret their constitutions to afford less protection than the federal constitution has important effects. For one, it allows state Supreme courts to set precedent for lower courts to follow if SCOTUS subsequently reduces federal

constitutional protections, as happened in Dobbs. It also preserves the state's sovereign expression of its values and norms through its constitution. If the Hawaiian constitution does not require warrants for geo-fences, the Hawaii Supreme Court is very much entitled to, and I believe ought to, say so. Then it should apply Chattree anyway. David, we just got schooled by a law student who read the same book that you and I have both read, I'm horribly embarrassed with how right he is. That is a very correct statement. Yes. It is that a state Supreme Court can construe, say a state due process clause to provide less protection. It just has to provide the level of protection the federal constitution requires, which is why there's a what I would call

imprecise and technically inaccurate but substantively correct when you're just describing that whole thing which was by the way also very well written and very clear i thought that was really well done well done great great email this was a one l by the way so that makes me angry actually deeply concerned about where he's headed in life i'm ticked off like i couldn't have done that as a one l i couldn't do it But that's why the shorthand version of it, imprecise shorthand, is the federal constitution is the floor, because in a court of law, the state court is going to be required to uphold the federal constitution, even if they construe the state constitution as providing lesser protection. But that's a great email. That's phenomenal. And I appreciate that the correction to greater accuracy, we always appreciate.

We always appreciate that. Also, just if you want to know how to get my attention, cite Judge Sutton to me for anything. I will assume I am wrong. In this case, we were, and he will always be right. You like Judge Sutton so much that you might even begin an email like this. Dear Sarah, I'm not sure if Judge Sutton has spoken on this or not, but just the Sutton reference. Okay, so, David, I got an email from Judge Sutton. I haven't even told him this.

and it invited me to a party. And I was like, oh my God, I got invited to a party by Judge Sutton. This is amazing. Only to realize it's that spam thing going around. And no, I did not get invited to a party. I went from joy to the depths of despair. All right, David. One last question from the inbox.

Why do courts fill a vital role with one-year hires in the clerk program? Having owned my business since the 80s, I cannot even imagine. having my office manager, my sales and design folks and site leads, the people who do the bulk of the intellectual work under me, only be there for 12 months and move on. Wouldn't the judges and justices be much better served by long-term professionals who would develop a better sense for what is needed and desired in each chambers? Wouldn't that be much more efficient? Sarah, wouldn't you be much, much more useful to Judge Jones with your current level of knowledge and skill compared to when you clerk for her?

Of course, there are advantages of the current system, costs, experience for the clerks, fresh perspectives each term, limiting potential for too much staff influence, etc. But with long-term, hand-picked assistance, I bet SCOTUS could handle a number more than 60 cases per year and the whole judiciary function more effectively. The current system seems to me, as David likes to say, no way to run a railroad. Well, David, this is sort of interesting because there is one judge, and close friend of the pod, if I may call him that, who does have a permanent clerk.

That would be one, Judge Kevin Newsom on the 11th Circuit. They actually just wrote a law review article together. And I don't know, David, maybe we should have them come on and answer that question of why you do term clerks for 12 months, why he is so unusual in having a permanent clerk. Like, I mean, I could answer this, but I don't think my answer would be as good. I think that's a great idea.

There are career clerks that are out there. You know, they do exist. They're not all that common. Also, they mostly happen in district courts where I think that level of expertise you're calling is much closer than your office manager than in appellate chambers where, honestly, the judge is doing all of most,

the vast majority of the intellectual lift because there's not a whole lot of, it's like you hear cases, you write opinions in a panel that sort of rinse and repeat. At the district court, you've got trials and exhibits and like all these moving parts. And so often having a permanent clerk at a trial court level is seen as more desirable, more common, and there's more expertise to have built up. Well, and also, you know, as as you were reading the email, which is a, it's a tremendous question. I'm so glad you pulled that out. I was thinking also, also,

I think a lot of people don't realize the extent to which a lot of our legal institutions depend on a small army of rookies doing a lot of furious research. Googling monkeys. Yes, yes. So you go to a big firm and you've got a layer of young associates that is larger than the number of partners who are laboring intensely producing a lot of sort of the raw research and everything. Now, this is going to be all of a sudden I bet a bunch of listeners are going,

What about AI? What's AI going to do to this? Great question. But for now, a lot of the legal system depends on a lot of labor from relatively inexperienced lawyers who are doing a lot of the early research and drafting closely supervised, hopefully, hopefully closely supervised. Also, our legislative process, Sarah, how many young staffers, you know, are writing a lot of legislation doing a lot of legislative work. People would be shocked if they knew the average age of people who are doing a lot of very consequential work on Capitol Hill. Okay. But here I think is sort of the punchline of the answer, which may or may not be satisfying. I think he listed out really helpfully like the pros and cons, you've thought of most of them. At the end of the day,

I think if you asked most circuit judges, they would say, I could do this work by myself, it's helpful to have the clerks. Here's why I do it. One, I really like mentoring young people and I think this is actually an important part of my job. And two, what they give for me and the judiciary as a whole is they become ambassadors to the judiciary when they leave. And so you want to get people early in their careers so that they are those ambassadors for a long time as they build out their own careers. It's why you will often see even circuit judges look for some regional affinity to where they are. You know, if you're up in North Dakota, you might look for, you know, at least one or two out of your four per term that are interested in staying in North Dakota.

I know that my judge, like, why I was able to get that clerkship, nobody can really say, maybe she sneezed and hit like the wrong thing. But some of it was I had singing on my resume, that helped. And I had ties to Houston where her chambers were. And so like maybe I was going to stay. Well, Judge, I didn't stay, but I'm coming home and I've got my Astros cap on today and I'm moving about a mile from you. So I hope you enjoyed creating this ambassador. It's sort of like when your college student just moves back into the basement. We need to get, we need just for one time only, one time only, Sarah, we need to get approval. Like pay the, bite the bullet, pay the fee for the short snippet to open the podcast, your first podcast from your permanent Houston.

home. That song, I'm coming home. Yeah. Got to do that one. Wait, what about from Hades Town? Have you been seeing? My reels are filled with Hades Town right now, the musical. No, I don't even know what that is. I'm not going to sing it because it's actually like an incredible piece of music. And normally I just do my little joky songs on here. But also, I'm coming, wait for me. Yeah, it's really good. So, but I have an extra thought on the clerkships. Oh, yeah. I think, because we've said this a million times. We've talked about this a million times.

Why is it that the legal system has survived the present moment in a way much more, and it's much more healthy than politics than NGOs? For example, we've read the stories about how radical, woke, young staff absolutely have hammered a lot of liberal NGOs, have hammered a lot of. It's one of the reasons why the Democrats in Congress have been key. keep getting pulled to the left, to the left. And then we just read a Politico piece about how many radical right-wingers and reactionary right-wingers are now in congressional offices. And it sometimes feels like the hierarchies pulled up, turned upside down, that you've got

all these older people, Gen X, boomers, et cetera, just terrified of their young staff. Doesn't really happen in the law as much. Doesn't really happen. And I would say one reason why is a lot of the systems are set up in a way that is explicitly mentoring and explicitly hierarchical. So that very few people are, if you're walking into a judge's chamber saying, I cannot wait to tell the judge a thing or two. That is not the culture. You know, it is not the culture. And so, and also the transientness of it actually keeps, you know, you've got a new crop of mentees always coming in. And by the time somebody's establishing themselves, they're kind of rotating out to the next thing to be mentored in.

And so there's a lot of mentoring that goes on in these legal environments. And I think it's been, I mean, obviously can't stop all of it. But I do think it's been a firewall to this world is turned upside down to where these like 24-year-olds think that they've got the world completely figured out to such an extent that they don't even want to hear anyone who disagrees with them. they've got it nailed with such perfection. By the way, Sarah, one of the fastest ways for me to not listen to someone politically anymore is when they say, you know what? I think our hope is that Gen Z and Gen Alpha are going to lead us. I'm like, okay, I don't think any American generation right now is covering itself in wisdom

and maturity and glory. But don't tell me that 18 to 22-year-olds are going to pull us out of the fire right now. I mean, come on. David, we have a firm disagreement about this, but we're going to save that for the next podcast. Ellie Honig is joining us, and we're going to talk about taking the Fifth Amendment, as well as play a little game, David.

Here are the rules of the game. You're going to come up with three amendments to the Constitution. One, we have already all stipulated that we're going to make amending the Constitution easier, so that cannot be one of your amendments. one of them can be one you've already mentioned before. One of them needs to be new and creative. And the third one is actually the power to veto

some popular amendment that you've heard bandied about that you think will actually do great violence to the Constitution. Oh, that's, that's meaty. All right. So Ellie Honig, CNN, former federal and local prosecutor will be joining us. We'll do some war stories. We'll do some constitutional.

constitutional amendments. Who even knows? But it's going to be fun.