Advisory Opinions - The Jan. 6 Committee Subpoenas Trump

Episode Date: October 18, 2022

What options does the former president (and his legal team) have in response to the subpoena? Did Judge Ho’s response to critics mollify Sarah’s concerns? And what does Clarence Thomas think about Prince? Plus: how early should you get in line for a chance at attending a Supreme Court hearing? -Andy Warhol Foundation v. Lynn Goldsmith -Judge Ho’s speech on Cancel Culture Learn more about your ad choices. Visit megaphone.fm/adchoices

Introducing the first ever Mazda CX-70, our largest two-row SUV. Available as a mild hybrid in line 6 turbo or as a plug-in hybrid. Crafted to move every part of you. Ready? I was born ready. Welcome to the Advisory Opinions Podcast. I'm David French with Sarah Isger. And we've got a lot to talk about today. We're going to talk about the January 6th committee's Trump subpoena. We're going to talk about a Supreme Court oral argument involving Andy Warhol and Prince. We've got some stuff to say about Supreme Court line sitting. It's a niche topic, but one of great interest to that niche. niche. We've got a speech by Judge Ho from the Fifth Circuit about cancel culture and explaining his Yale decision. A bit of a tiny update from Yale. And then we're going to end with a much

sadder topic about pets. So... Sad but hopeful, David. Sad but hopeful. We'll go with that. So let's start. The January 6th committee has voted to subpoena President Trump. And when that happened, we very briefly considered an emergency pod. Super, super briefly considered it. But then I saw a tweet of yours, and I thought, I think the emergency tweet would suffice because this isn't actually super complicated. And here, let me, Sarah, read your own tweet to you

and ask you to comment upon your own tweet. Trump's subpoena options. One, ignore and make DOJ's job easy a la Bannon. Two, contest it, but see SCOTUS and Trump v. Mazar's, a mess of a case, by the way, that we had talked about previously. Three, plead the fifth. Then you can't answer any related questions or give substantive opening statements. Or four, we'll call this, to use Jonah's words, the let's be legends option, testify before the biggest audience he's had in years. Those were the options I thought, well, that pretty much suffices for an emergency podcast.

You want to amplify on any of those thoughts? And I've got a follow-up question. Sure. I mean, I think the culinary dish a la Bannon would be a really fun one to pursue, but yeah, let's just walk through them all. So ignore it. Now let's be very clear by ignore it. I mean, literally ignore it. Just do nothing, say nothing, ignore it why that is um separate and meaningful is because if he truly ignores it congress comes back into session in december they could vote before the election before the like as in a month from now or six weeks from now whatever um i mean before the transfer after the election before the new congress is sworn in sorry yeah. Yeah. Yes. And so they, in order to hold someone in contempt of Congress for ignoring a subpoena, you have to take a vote of the body.

You're not held in contempt because you ignore the subpoena or because the committee says you ignored the subpoena. You're held in contempt by the body of the house of representatives. So they would take that vote in December. At that point, they send it to DOJ for prosecution. Now, I'll be honest, like there's actually some very interesting legal questions involved in that and separation of powers and all sorts of things. I mean, in theory, right? Actually, it should be Congress who then tries you and puts you in Congress jail, basically. And we've run into this problem because if, you know, Congress votes to hold someone in contempt and they are, you know, the house is controlled by a different political party than the executive.

Sometimes that person never faces prosecution, for instance, by the department of justice. And that causes all sorts of attorney general holder in Department of Justice. And that causes all sorts of- Attorney General Holder in the Obama administration. And that can cause all sorts of hand-wringing. But setting that aside, because that's not the issue right now, the House is run by Democrats and the administration is Democratic. I don't think anyone would question

that if the House holds Donald Trump in contempt of Congress, that again, it just makes DOJ jobs so easy because they just did this with Steve Bannon. Like, you had fair notice. If you ignore subpoenas and just think that you can stick your head in the sand, we're going to prosecute you. Now, some harder questions for DOJ is, like, are they going to show up at 6 a.m. with those nice little windbreakers? Are they, you know, is he going to self-surrender? Like, it gets complicated down the road. But also it's worth noting that once Congress has taken that vote and sent it to DOJ,

Congress's role is over. It does not matter who takes power in January. It's with DOJ. And DOJ, of course, will be within the Biden administration for two more years. So this idea of like, oh, when the new Congress comes in, yes, but under scenario number one, the ignore it scenario, that doesn't matter as long as they've gotten it to DOJ before January 5th or whatever it is this year. Number two, contestant. This is the grayest one, David, because on the one hand, I haven't seen anyone say that he would win on the law if he contested the subpoena. And I mentioned Trump v. Mazars because, first of all, we can't agree on the definition. I don't think anyone seems to know. Mazars, it ends up being sort of this like factor test of like, I don't know, think about these things. But the important part is, A, it's about separation of powers, not executive privilege.

And B, what you're looking at is, you know, does Congress actually need this? Is it for a legislative purpose? I think that's the hardest factor, actually, which isn't that hard. There clearly is a legislative purpose to knowing what happened on January 6th. They're not pursuing, you know, criminal stuff against the president, the former president. if they can't get to that contempt vote before January and Republicans take the House, then the vote that you're going to have is to withdraw the subpoena. And so if he can sort of last that long, I agree this thing, you know, probably gets mooted out. That being said, you also end up with some interesting moot law about capable of repetition yet evading review.

You could have a court, I don't think the Supreme Court would do this, but you could have a lower court say, no, no, the question of whether Congress can subpoena a former president is very capable of repetition and evades review in this case, simply because of an election. And this gets to a larger point, David, which is that the January 6th committee has been meeting for a long time. They knew the midterm elections were coming up. They know the history of the first midterm elections in a new administration. hearing. And instead, they recessed at the end of July, came back, delayed for another two weeks because of the hurricane, we're told, because they didn't think that it would get media attention because of the hurricane. And then in mid-October, vote on the subpoena, knowing that there is very little chance, I think, of being able to win the loss, the, you know, court battle that you

would win if you had enough time. Very weird decision on their part as if they didn't want to have Trump testify. That was odd. Number three, show up, a plead the fifth. I mean, this gets into some like Fifth Amendment privilege, interesting stuff of like when you waive your Fifth Amendment privilege. But Donald Trump's actually done this before. The problem is if you're doing it on camera, it just gets a little awkward of like after you basically say your like name, rank and serial number, you can't answer any more questions or else you could argue that you waived your privilege. Now, of course, this is Congress. It's not a court. There's some weird stuff about that. But, you know, is your daughter Ivanka Trump? I plead the fifth. Did your daughter

say this and this? I plead the, you know, I'm invoking my Fifth Amendment right per advice of counsel. That feels like the least likely of all the options. uh per advice of council that feels like the least likely of all the options okay so then the last one is yolo and look i say that the largest audience in years it could be the largest audience ever what would i could easily see this being larger than the 2016 debates the inaugural address all sort of of things where Donald Trump got large audiences. I think this would have international appeal, let's say. Yeah, I don't think we'd be talking Super Bowl numbers, but we'd be talking. I don't know. It would be huge. It would be huge. And, you know, you would have Liz Cheney grilling Donald Trump on prime time. And I think that's

low likelihood. I think that's low likelihood, but if I'm Donald Trump's legal team now, I don't mean the legal team, David, that you would have, which I hope I would be on. You'd be leading it, Sarah. You'd be leading it. Okay. I also hope that's not the case. Let's find you a better lawyer. But for anyone else, you'd say leading it, Sarah. You'd be leading it. Okay. I also hope that's not the case. Let's find you a better lawyer. But for anyone else, you'd say absolutely not. Like for 50,000 reasons, no, sir. But this is a specific group of people, Trump's legal team, and a specific client. And I got to tell you, I don't think we shy away from criticizing the former president on this podcast. I actually think that Trump v. Cheney could very easily go in Trump's direction. And I think anyone sort of assuming that somehow Trump versus the January 6th committee helps the January 6th

committee, I don't think that at all. I think that Donald Trump would not answer their questions. at all. I think that Donald Trump would not answer their questions. He would take opportunities to undermine and take shots at them. I think there's shots to be taken, by the way. And I think that might go some of the way to explaining why they waited to mid-October to issue the subpoena. Yeah. You know, that's a really interesting question about Trump v. Cheney. There is, interesting question about Trump v. Cheney. There is, because it would not be, and we have to remember this, this would not be scored as you would score some sort of college debate, right? That's not how this would go. And the other thing is, Trump wouldn't be trying to win over waiverers. Like, that's not the way this would go either. This would be about Trump

trying to demonstrate that he's large and in charge, that he can bluster, that he can bully. And you know, and one of the things- And I've done a lot of congressional hearings,

by the way, David, at this point. And the incentives of the group are not the incentives of the individual. And so while it's the incentives of the group to have a Liz Cheney versus Donald Trump, like whatever that would be, an hour, just go and go and go. If you're talking about an audience that big, I assure you that the individual members of the committee would like their moment.

And so it's going to be five minutes for Liz Cheney, five minutes for Jamie Raskin, five minutes for Kinzinger, five minutes for, I don't know, go down the entire line. And what you'll find is that nobody can be very effective in five minutes. You can't do follow-ups. You can't push a line of inquiry anywhere. And so frankly, I'm, you know, I will tell you that preparing principles for congressional hearings is easier than you think. You just have to wait out the clock for five minutes, which is nothing. Now, the only difference here is normally when you're in front of a committee, you have five minutes of hostility followed by five minutes of kindness, five minutes of hostility.

So you have no, you know, the five minutes of hostility has no ability to fight. You try a cross-examination in five minutes. Like, I don't care if you're the Michael Jordan of litigators, a five-minute cross-examination is doomed to fail. So, you know, a smart committee would say, we're retaining as counsel for the committee, just a phenomenal litigator. And the whole hearing is the cross-examination of Donald Trump, the whole hearing.

And that circumstance, I think he doesn't do as well, but that's an extremely unusual circumstance. I don't know the last time I've even seen that. The Kavanaugh hearings. And it fell apart. But even in the Kavanaugh hearings, five minutes of, she had five minutes of cross-examination, five minutes of friendly, I mean, it was broken up. Never had a chance. There were still two lawyers that each side had hired. And on the Republican side, it was very interesting because it fell apart because it turned out the committee members decided this was a huge audience.

It was televised and they wanted their own time. I just don't see a world. And this isn't a hit against Jamie Raskin or Liz Cheney. But of course, they're going to take their time, their opportunity to do this themselves. Yeah. And a lot of them because they think they can do a better job. I mean, I feel like- Because this isn't a courtroom.

It's not to a jury or a judge. It's to the public. And members of Congress, I think, do have an expertise that litigators don't have. And that, as we saw in the Kavanaugh hearings. So yeah, that's why I think you're entirely correct to say as far as what Donald Trump would want to accomplish, he might have a real chance at accomplishing it, which is bullying everybody. And look, we have to be completely honest about something.

Nobody has solved Donald Trump in a debate yet. You know, the Biden-Trump debate, number one, was just a catastrophic sort of political event. And nobody walked out of there going, Joe Biden owned Donald Trump, other than hard, hardcore partisans. They walked out of there saying, I just witnessed a car crash. And, you know, something that Lincoln and Douglas look back upon and weep hot, bitter tears over its very existence. But this idea that the Trump bullying persona being shown yet again would somehow hurt Trump ignores the last seven years of political history in the United States of America. So I'm with you from his perspective.

Something like that might not necessarily be dangerous for him because he's already in so much legal jeopardy. And his basic legal defense so far has been, I'm a former president. That's the defense. That's the main defense. And he's still a former president if he walks into that hearing room. And he's still got all of these prudential things that are helping sort of keep him from indictment. When you and I would have already been indicted 19 times already. If I'm in the Trump legal room, like war room, there's a big whiteboard.

And there's the pro side and the con side. And on the pro side, it says something to the effect of, you want to run for president. This will be tens of millions of eyeballs. You will control the conversation forever. Like the pro side is just so enormous. And then on the con side, you know, the cons are you increase your legal jeopardy in these cases. You open up new avenues of legal jeopardy along perjury lines,

or you cause yourself some political damage. A, new lines of jeopardy in the current criminal probes. Maybe. That's the only real one to me. Perjury. Nope, because I don't think he's going to answer a single question they ask.

And the perjury, like you're going to have to get kind of into the weeds on perjury here. But actually, if you go look at sort of what Donald Trump's MO at town halls and stuff is, I don't think any of that's going to be perjurable. And three, on the political downside, no way of all the people, right? Trust your candidate. I think Donald Trump would acquit himself well. And if he doesn't, then it was all over anyway, right? Like it was going to happen at a town hall. It was going to happen somewhere else. So I don't know if I were in that room and Donald Trump were my client,

I would say not to do it because criminal jeopardy is worse than any upside. Like the downside is just greater than the upside, but not to him. Right. Right. Yeah. I mean, how much worse is this? And again, we're not talking about a normal politician, a normal candidate under normal circumstances. With all of that applied and your goal is to keep your client, to do the thing that keeps your client out of jail. But what if that's not the primary goal? You know, your client's like, nope.

That's not it. When David walks into our war room, he says, primary goal, keep me out of jail. Yeah. Trump walks in primary goal. Let's be legends. Yeah. And use the cloak of armor that is very formidable armor.

As it turns out, if I'm the former president and the Republican front runner, nobody's going to indict me. I can do what I want. And that's his suit of armor. And so, and so far that suit of armor has proven impenetrable so far. So yeah. Okay. Sarah, you want to talk line sitting before we talk about Andy Warhol? I do. So many of you have emailed about what time you would need to get in line for an oral argument at the Supreme Court now that it's open to the public again. And we've walked through this before, right?

Like there's the if you're a admitted to the Supreme Court bar, you get to go through a different line as an attorney. But if you are a lawyer who's not admitted to the Supreme Court bar or a member of the public you can just wait outside and there's roughly though not exactly 50 spots for the public each day for argument um it's worth noting by the way that you can't bring anything in with you there's lockers where you can put you know stuff that would fit into a locker and at least they used to only take quarters so you also needed to bring quarters and only stuff that could fit into a locker. And at least they used to only take quarters. So you also need to bring quarters and only stuff that could fit into a locker. Everything is going to have to go in there, including your cell phone, for instance. So I was giving advice to people on what time they should show up, for instance, for the Warhol oral argument or for the pork case. And David, nobody who I have advised has gotten in,

which is all to say that interest in the court, this term clearly appears to have gone up a little bit. And so whatever the normal amount of time that you would have thought in previous pre COVID times to show up, it's now going to have to be earlier. So for instance, in the Warhol case, I think they showed up at 7 30 AM and and it wasn't close. So you would have needed to show up certainly by six, maybe

earlier, it turns out. And look, the Warhol case is fun, but it's not one of the top cases of the term. So we've been getting questions on what time do I need to show up for the Harvard admissions case? I don't know, man. I don't know. So I showed up at 3 p.m. the day before for the Heller argument. That was the gun case in 2008. And I was number six or seven in line. I think I was six. I think that because of what we're already seeing just in the first week and just the sort of what the Harvard case is and that it's going to appeal to college students who have the ability to sit in line more than others, you're definitely looking at before 3 p.m. to need to show up probably to be in the first 50. I think there's an interesting chance that this might be a two-nighter.

And so, David, along those lines, I want to bring in an amazing piece of history that was emailed to us. Oh, please do. His name is Aaron. I've asked to share this email. And David, he was the first in line for Bush v. Gore. Oh, really? Isn't that amazing? Now that, ooh, that's an accomplishment.

Right? So he arrived at 5 p.m. on Saturday for the Monday morning argument. Oh, that's later than I thought. Number two arrived at 5.30 and number three arrived shortly after that. And they also made their own legal rules, David. So the officer, I guess, came by and told him they would admit the first

50 people. And after that, they would give out passes to allow others to cycle in. But if the line fell apart, they would just give out tickets to the first 50 people in the chaos. Good luck, the officer said as he walked away. So with the first three people, they decided to make their own laws, same as we did in Heller. We made numbers on a yellow legal pad. Then the first three of us signed all 50 so that they couldn't be faked. Then we started a mnemonic of who and where people were from as we progressed down the line and logged it on a master list. My favorite was a group of five law students from Chicago who had driven overnight to come

and get in line. We instituted a two-hour check-in and a line sitter was allowed to miss one check-in if they were off to the bathroom, et cetera. This part of it made all the news stories and radio interviews about our line. People say you have to give them approval to go to the bathroom, which wasn't the case, but everyone kept coming up to seek my approval. Just go and come back for the check-in, sigh. There was a couple holed up in a little dome tent that we made both stick their hands out

to prove they were both still in there. We policed all of our garbage to one spot on the curb after conferring with the police. And come Monday morning, when a rival faction in the line around numbers 80 or so threatened to become a new second line to claim the tickets, the head of Capitol Police came and told me that he would use our line and that they hadn't hoped it would go this smoothly. They brought over a representative from the Smithsonian who asked to take our hand- hand signed tickets for numbers one, two, and three for inclusion in their collection and possible future display. And lastly,

the clerk of the Supreme court, William Sutter came by and thanked us three for keeping things as in control as we could. A couple of years later, he came to my law school and made a reference to all of this and how well the garbage was policed. And he was rather surprised when I said hi during the meet and greet. I mean, that's amazing, David.

This is like oral history here. He had the same experience I did though. I mean, this was December, which is not freezing cold in DC, but like cold, cold. And mine was March. So right on the other side, very similar to December weather in DC.

Very cold, but not usually snowy cold. And he said, the experience was amazing. The courtroom was all caps warm after two nights outside. Yeah. I mean, it was like all of a sudden, I don't know, being, being swaddled when I got inside after how rainy and miserable that had been. And he did two nights.

The corners of Scalia's chair were in perpetual motion, up, down, twisting left and right as he shifted and jockeyed the entire time. When one of the attorneys accidentally referred to Justice Breyer as Brennan, there wasn't much reaction in the room until the next question from a justice opened with, I'm Scalia, by the way. Then the laughter erupted while the bailiff scowled john ashcroft had traded seats with my roommate who got moved up into a seat with the invited observers sitting close to oran hatch and jesse jackson if i remember correctly i'm sure the bailiff was smiling when he seated those two together anyway david aaron thank you so much for sending this incredible and if you're looking to

make sure that you get tickets to harvard um 5.m. Saturday for a Monday morning hearing, and Harvard will also be on a Monday morning. This was Bush v. Gore. So on the one hand, 5 p.m. does sound pretty early. But David, I'm just not sure, you know, unless you get there really first thing Sunday morning, I don't know that you're going to be on the first 50. I mean, you know, this is all interesting, but I tell you, Supreme Court sitters should go talk to Duke students. I just finished a tenure as a visiting professor at Duke, which is a very grandiose way of saying I came to campus three times during the year. I can't even begin to describe the setup that they have to wait for tickets at Cameron Indoor. It's impressive. Yeah. It is impressive. And the elaborate rules. Like they're repeat players. This is the problem.

You don't really have repeat players for the Supreme Court line. I don't know if I really wanted to see it. If it was a priority, if I thought this was something that like I needed for my bucket list, I would show up on Saturday. And especially because it's like a college-y thing and law school thing. I think you're going to have a lot more students and they don't got nothing to do, but show up on a Saturday. Yeah. Yeah. No, that's absolutely true. We have the best listeners. That's a fantastic, fantastic email. We have the best listeners. That's a fantastic, fantastic email. All right, shall we move on to Andy Warhol?

Yes. And Clarence Thomas's, Clarence, a window into Clarence Thomas's personal life. Which didn't surprise me at all. There was so much in this argument that was fun though, David. The most fun argument of the term. I mean, I know we're only like seven arguments in, but still definitely the most fun, but let me give you the background. We talked about the case briefly when they granted cert and well, I'll circle back to what I thought at the time. So in 1981, award-winning photographer, Lynn Goldsmith, who was herself, is herself famous. She took pictures of like Roger Daltrey and Bruce Springsteen.

She's like an iconic music photographer. She takes a picture of Prince in 1981. So then Vanity Fair sent the image to Warhol and asked him to use it as a reference for an illustration of Prince. They paid Goldsmith a $400 licensing fee at that point. Fast forward. Prince is dead. Warhol is dead. Everyone's dead.

Whatever. So shortly after Prince's death in 2016, Condé Nast, now the parent company of Vanity Fair, wants to use it again, but they used a different one. So that was Purple Prince, I think, in 81. This is going to be Orange Prince. And if you've seen, there's, I don't, like 20? There's 20 princes that Warhol did, and they kind of make this beautiful,

like each one's a tile, kind of. But they, the Andy Warhol Foundation charges Condé Nast a $10,000, $250 licensing fee to publish the image. They did not pay Goldsmith this time. Right. And so Goldsmith sues, there's parts of this that get a little complicated.

And frankly, we're going to skip them on this podcast for our purposes. The question is whether any 2016 vanity Vanity Fair orange prints was the use of the Warhol use of the goldsmith fair use under copyright law. And so we go into this oral argument, David. I thought that it was, right? One of the first questions that you ask is, is it transformative? And I just want to read you the four factors. Right.

Factor number one, the purpose and character of your use. That's sort of the transformative test. Number two, the nature of the copyrighted work. Number three, the amount and substantiality of the portion taken. And number four, the effect of the use upon the potential market. And we can sort of get into what each one of those means. But yeah, is it transformative? What was the underlying copyrighted work?

Like, was it a book and you're making a movie type thing? The amount that you took, that one's kind of obvious. Like, did you take the whole plot or just like the name of one character? The effect upon the potential market. So this is like, did you just make like valueless the original work because you simply improved upon something that was copyrighted versus transforming it, for instance. And there's two cases that are worth mentioning here, David. The two live crew versus Roy Orbison case. This is where Roy Orbison's famous song, Pretty Woman, including the riff at the beginning.

Dun-dun-dun-dun-dun-dun-dun-dun-dun. Yeah. So two live crew uses that. And the whole first part is like pretty kind of the same walking down the street girl you look so sweet you bring me down to the knees you make me want to beg please oh pretty woman but then the next verse is and since this is too live crude do we want to say it's all clean this is the clean one all right second one is big hairy woman you need to shave that stuff big hairy woman you know i bet it's tough big hairy woman all that hair it ain't

legit because you look like cousin it then there's a bald-headed sorry ball ball headed and then the last one um she basically like says she's pregnant and mr mix is like i know that baby ain't mine two-timing woman so roy orbison sues they had asked for the license from orbison and orbison said no right and the court in that case basically says parity is protected as fair use because of course the person being parodied isn't going to agree

to the license. And you have to reference the original in order to make it a parity. That becomes interesting in this case. Number two is that Google versus Oracle case

which was decided last term. And David, we tried our best in talking about this. This is where Google also tries to get into a licensing agreement with Oracle for their JavaScript. The talks break down. So Google's like, okay, then we'll just take it. So they took 11,000 lines of code and the Supreme court said, yep, also fair use. And the question we have with the Warhol is interesting because Goldsmith, the photographer, says pretty easily like, yeah, of course these can be shown in museums, but at the point that you're putting it in Vanity Fair, at the point that you're putting it in Vanity Fair, because Prince died, my photograph could also have been used for that. So it was not different in that sense. While your picture

may have been transformative for museum purposes, it was not if you were using it for when Prince died. Fascinating argument, David. I went into it thinking that the warhol folks would win because warhol's stuff is transformative and in fact in some of these other cases they even use warhol as the paradigmatic example of what is transformative right but david i leave this argument thinking it could be nine zero for Goldsmith. That's bold. The Chiefs seemed a little less there. Worth noting in that Google v. Oracle case, it was 6-2, Gorsuch and,

sorry, Thomas and Alito dissenting. Thomas wrote the dissent. I think that the court wants to find a limit like where copyrights are protected, first of all. But you also end up with this great argument about the parade of horribles and it was like yeah that is hard to say if it it's sort of

like if california didn't have california's economy in the port case if this were warhol at the beginning of warhol's career. And basically someone put colors on a photograph and then sold it to a magazine that could have used the original photograph. The only reason that we're here in some ways is because it's Warhol. And so we all know it's Warhol and it's iconic. The Warhol guy goes first.

You know, he's got a tough job as it turns out. This is where Justice Thomas does his famous, we should read it, I guess, right? Yes. Oh, yes, please, please. Okay, so the Chief Justice calls on Justice Thomas first, of course, in the lineup at the end of the first part of the argument. I assume that the Orange Prince is copyrighted. Mr. Martinez, yes.

And I think that copyright's directly at issue in this case. Again, that's something we're not going to get at here. Justice Thomas, let's say that I'm both a Prince fan, which I was in the 80s. Justice Kagan, no longer. Justice Thomas, well, more laughter. Only on Thursday nights. Like what's happening on Thursday nights in the Thomas household? Such a great answer. By the way, Kagan and Thomas are

like giggling the whole time in this argument. I don't know like what, you know, Pop-Tarts they had for breakfast. Pixie Sticks. Remember the Pixie Sticks sticks david that's what you get from listening to the oral arguments which you do versus reading which i do yeah oh it was delightful so but this is actually an important question that justice thomas asked but let's say that i'm also a syracuse fan and i decide to make one of those big blow-up posters of orange prints and change the colors a little bit around the edges and put go orange underneath. Would you sue me? Roman Martinez, would, would, would, would. That's the transcript. Martinez, would the Warhol Foundation sue you if you were to do that? Well, you're their lawyer. Martinez, I can't comment on whether we would sue you,

but I think to get to your question, Your Honor, I think the question of whether that would be fair use, I mean, it sounded like you're, by hypothesis, asking me to consider that there's like a different meaning or message associated with the work. I don't think that that's the only part of the inquiry. I think that everyone recognizes that at factor one, that's the transformative factor,

the ultimate goal here is to figure out whether the follow-on user is doing something sort of creative that matters. Justice Thomas, oh, I'm just waving it. I'm just waving it at the game with a big Prince face on it. Go orange. Martinez, I think that in circumstances like that, it's very unlikely

that if it was just you, oh no, no, no, I'm going to market it to all my Syracuse buddies, says Justice Thomas. Martinez, so I think in that case, the court would quite reasonably look at that and say that this is not the kind of productive creativity promoting use that is, Justice Thomas interrupts, so in other words, you would sue me. Laughter. Martinez, I would not sue. I think that you would probably have a very weak case against me, Your Honor. So David, this was a brilliant question by Justice Thomas because as the attorney for the Andy Warhol Foundation, he had a weird choice about diluting his own copyright. He could not say that a Syracuse fan

could now sell orange prints as long as it says go orange underneath it, even though it would be for a different use, waving it at the game, that the Warhol Foundation isn't like in the market of selling to Syracuse fans, and that it would be transformative. They changed the orange color to make it Syracuse orange,

and they add the words Go Orange. Boy, man, I don't know. I, yeah, okay. So can I tell you where Lisa Blatt won me over? Oh, I have so many feelings on the Lisa Blatt argument. Yes, definitely. Okay. So Lisa Blatt is arguing, uh, against the Warhol estate. Um, she's arguing for the photographer and she says this, if petitioner's test prevails, copyrights will be at the mercy of copycats. Anyone could turn Darth Vader into a hero, which would be transformative, right?

That's my parenthetical. Or spin off all in the family into the Jeffersons without paying the creators a dime, which is a really great point and six words immediately came to mind. Sarah, are you ready for these six words? I'm pumped. Winnie the Pooh, Blood and Honey.

Okay. Winnie the Pooh, Blood and Honey is the actual name of a Winnie the Pooh movie. You can look it up. It's out there. And why were they able to make a Winnie the Pooh,. You can look it up. It's out there. And why were they able to make a Winnie the Pooh blood and honey movie? Because that's two live crew. That's a parody. Well, no, they only did it after it lapsed into the public domain. After Winnie the Pooh lapsed into the public domain. I think they would have been able to do it anyway. Interesting.

Oh, it's an interesting question. It's an interesting question. So you need the original, you need the underlying. Well, it's a straight up horror slasher movie. Now, so it's interesting also because at one point in the argument, they talk about The Shining and that the original book was a tragedy versus what the Kubrick movie was, which was a horror movie. And so in some ways, that's similar to what you're talking about, but they needed the license to do that. It wasn't a parody. So let's just talk about the Lisa Blatt argument, because if you remember, Lisa Blatt argued in the angry cheerleader case. And I spent some time talking about her argument with like, it's an unusual style. I don't know if it's effective in this case. It's an unusual style.

I don't know if it's effective in this case. David, I don't see how anyone is going to beat this for best advocacy of the term. The bar is so high after this Blatt argument and nobody should ever try to copy Lisa Blatt's style. It breaks every single rule, but she just does it so effectively and just threads every needle. It's like watching one of those downhill skiers

around every flag where they're like one centimeter and they would crash. It was like watching a downhill skier. It was so amazing. I was reading it and then had to keep listening, going back, listening to it again, then reading it again. Just artwork, David.

This is transformative. So I want to read you a part that, for instance, nobody should ever try this at home, kids. This is Lisa Blatt in response to Justice Kagan. Justice Kagan, by the way, still like giggling is the wrong term at this point, but like laughing, talking under her breath. She's having a good time. So in response, Lisa Blatt says, I mean, I can just keep reading you quotes, but you know how to read a decision as best as I do. But on the very same page they're yakking about, it says that it has to be reasonably perceived

as having a distinctive artistic purpose, one that conveys a new meaning. It's just saying that what you can't have and what we're all unified on, the government, us, all of our amici, is you cannot have a bare purpose to add new meaning to someone else's art for profit. I mean what they're yakking about David, no one should ever say that the other side is yakking. She also at one point, and this is the most dangerous maneuver that she tries. This is the quadruple Lutz at the argument because she's in a colloquy with justice roberts

and uh she says your test justice uh chief justice lies madness in the way of almost every photograph to a silk screen or lithograph or any editing. I guarantee the airbrushed picture of me look better than the real pictures of me. And they have a very different meaning and message to me. The courtroom laughs. Chief Justice Roberts, well, I think that's not right. I mean, I think you would look at, there's more laughter. I think you would look at both of them.

And one would say, those are pictures of the same woman. This one may look a little better than that one, but it's the same woman. It's for the same purpose. It's to show what she looks like. But if you had a picture, a photograph of you and then Warhol, you know, it's just not the same thing. You look at the Warhol, the black eye, all of that. Trying humor with the chief justice is, I mean, that is a dangerous maneuver. Well, you know, this is the second time we've had the Onion brief, which is tried humor and worked.

We have Lisa Blatt trying humor and working. Dangerous precedents being set here, even though they worked. If somebody's going to fall on their face. Steve Irwin sticking his head in a crocodile's mouth when you try to be the funny one with the chief justice. But Steve Irwin could do it. And you know what?

Lisa Blatt, incredible. We are absolutely going to invite her on the podcast to talk about how she developed this incredibly unique argument style, why it's so effective. We need to ask you all these questions, Lisa. You got to come. And there's this part.

I want to read this part because I think this hits on something that you got to come. And there's this part. I want to read this part because I think this hits on something that is, you mentioned it already. It's lurking in the background of this case. And so this is Blatt. She says, and so that is all the second circuit had was they had a district court opinion that went completely, this is a war hall. And oh my God, it's a war hall. So it's transformative by definition. She delivers it with such a deadpan. And oh my God, it's a Warhol. And I think that really gets to this

because there's lurking here in this case is if that wasn't Warhol, if that wasn't Warhol, do we have, is this in the Supreme Court? No. I mean, no. No. No.

Yeah, I need to go back and re-listen to our podcast when we talked about it because I literally can't remember how it came down after reading the cert petition. So I need to remember this. But this was, you know, this was, this, you know, Blatt's argument I thought was fantastic. And as I was saying that sort of this Darth Vader thing, well, then you could say if Darth Vader is now a not a villain anymore. I mean, is parody just anything that's not that like, you know, that's. Basically, parody is I think the Blatt test would define it, is where you must have the original. Not you want the original, or it's helpful to have this original photograph in order to make your Warhol.

But as she points out, he could have taken a picture of Prince. Nobody knew the goldsmith's photo by itself. It's not like it was referential in any way. And when it came to Marilyn Monroe and some of his other famous pieces he's the one who took the photograph so this was just time saving for him really now in reality of course remember Vanity Fair sends him that photo they license it in 1981 that's what causes this whole mess but they license it it appears just for the purple one not the orange one that's where you get into like is orange one even copyrighted at this point? Blat also at one point talking about the vibe of the photo.

And here was something I thought was well, a point well taken, which was when she talks about Mork and Mindy. So she says, if I could just talk factor four, this is the commercial use, right? The marketplace. And because his answer was just astonishing. Worth noting by the way here that Roman Martinez is like a brilliant oral advocate too. And like, this was two like great oral advocates going at each other. The first half of his argument was solve everything under factor four. The last half of his argument is we win in this case under factor four because of a trial in a different market. And imagine my Jefferson hypothetical. This is referring to the Jeffersons. Everything he said about Warhol versus a Goldsmith is the same article you could have

said about the audiences that watch Mork and Mindy versus Happy Days. That is one character from Happy Days involving some Martian who came in and Robin Williams- Time out. Time out. Come on. What? Mork from Ork. Right? Okay. Anyway, time in. And Robin Williams was so funny that a whole new show was created called Mork and Mindy. They had nothing to do with one another, different audiences. Under his view, everything he said about Factor 4, you would have in trial in every single case. Basically saying like, yep, you could just make a whole show with Mork and not have to pay the Happy Days people anything. That's a problem. On the other hand, I thought she was also very effective when she talks about

the soup can. So Justice Jackson, right? But what about commentary? That's what I'm worried about. The parody, I understand. You would say it's necessary. And so that would fall into your fair use test. But something like the Campbell's soup can, where we've already established he could have used some other item to make that kind of comment. Would that not be necessary? Here's where she wins the case, maybe 9-0, David. This is the answer. Okay. Nope. I think that Campbell's soup fits in two places, and Justice Kennedy's concurrence in Campbell is really good on this point. Different case that's just called Campbell. What Justice Kennedy is saying is that the writer can always pick his target. You can always pick what book review you want to critique or what song you want to parody. So it's never that you have to say,

well, you didn't necessarily have to pick on my song. So Warhol was entitled to comment on Campbell's Soup as a form of talking about consumerism and making whatever broader point he wanted to make about society. But the Campbell's soup label, not only is it a completely different purpose because one's an advertising logo that goes on a supermarket shelf to a work of art, but, and I think the government's brief says this, he can't have used a generic soup can. He had to use the Campbell's soup label. Same if he had picked Cheerios. It would have been really weird to do, I guess, back then. They didn't have the giant Cheerios. But you've got to use Cheerios to make your point about consumerism and brand loyalty.

That's it, David. If you can distinguish why he was allowed to use Campbell's Soup, but why he needed to either take his own picture of Prince or pay her for her picture, that's the ballgame. Yeah, I agree with you. I agree with you. And I'm just just gonna i know you call it parody but there's a reason why winnie the pooh blood and honey waited until it lapsed always safer to wait always safer to wait and and i you know the the other thing about this is there was a licensing with the original painting so in other words you had the photo

a licensing with the original painting. Why is it suddenly not needing of the license anymore? That's where I think you get into the Google, the Oracle. I, you know, we're like, well, it fell apart. So we'll just try to use it and test it at court. And Google won that bet. I mean, they played chicken and won. And I think the Warhol foundation to some extent was like, yeah, but let's see if we donhol Foundation to some extent was like, yeah, but let's see if we don't have to. Yeah, yeah, exactly. We're Warhol by God. Yeah, this is the second part of this podcast that has a YOLO analysis to it. So except this one got to the Supreme Court and the Trump one is only hypothetical. We'll see. And we'll take a quick break to hear from our sponsor today, Aura.

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on the perfect gift by visiting auraframes.com to get $30 off plus free shipping on their best selling frame. That's auraframes.com. Use code advisory at checkout to save. Terms and conditions apply. All right. Let's move on. And briefly, because we're already, we've already plowed through a lot of time today. Judge Ho gave a speech on cancel culture. And I really, we'll put it in the show notes. And I really strongly recommend it. Just to be clear, David,

this is the same speech where he announces his Yale boycott. The difference is that we have the entire printed speech that he's now published, and it includes a reply to his critics. Correct. So it's the same thing. Like, this isn't a new speech. It's actually an old speech that has new stuff in it. Correct.

So we hadn't seen the whole speech, And I don't want to dive into the remedy section because I feel like we've kind of exhausted that topic because he's talking. The whole speech is essentially a clarion call for free speech and not just sort of the law of free speech, but the culture of free speech, which is a drum that I've been beating for years. of free speech, but the culture of free speech, which is a drum that I've been beating for years. And it's really well done. It's really compelling. It's a compelling argument for free speech, for toleration. I disagree, as I have said many times on this podcast, with his remedy. In other words, I'm not going to hire any clerks from Yale. But the actual conversation about free speech, I think, is really important. And I also like how he went into the founding of the country, the conflict between the federalists

and the anti-federalists. I just wanted to put a pin on this. My only two critiques and the remedy we've already talked about. The other one is, I think because of the position that he's in, which is sort of elite in the elite circle, elite legal circles, the cancel culture that he sees is left aimed at right. It's the Yale law student shouting down and disrupting a Federalist Society event. It is. He had a number of incidents that were quite disturbing. event. It is, he had a number of incidents that were quite disturbing. It's a law firm saying, or it's students who go to the ADF Blackstone Fellowship saying you should knock that off your resume or you can't be hired. And to be clear, the ADF Blackstone Fellowship is one of the

best programs that exists for young law students in America. It's a summer program put on by the Alliance Defending Freedom and a lot of conservative Christian law students go America. It's a summer program put on by the Alliance Defending Freedom and a lot of conservative Christian law students go through it. It's a spectacular program and the idea that you'd have to knock that off your CV or your resume to get a job is absurd. So he's pointing to very real events that are occurring in some of these elite legal circles where left is trying to cancel right. And all of this is a real problem. I think the problem is actually much more universal. It's much more of a problem that is right trying to cancel. People are not deemed far enough right. This is a universal malady right now amongst extremists on either side of the political spectrum.

And I think that's worth pointing out. But the fundamental underlying principles of free speech and the culture of free speech, I thought, were very well stated. So even if I don't agree with the remedy, the diagnosis of the problem, I thought, was very eloquently argued. David, you'll appreciate that. He says, in the days since I delivered these remarks, two alternative proposals have been suggested and two major criticisms have been leveled. So to be clear, he's getting it from the right and the left, something you'll know plenty about. Yes. One, don't boycott Yale.

The entire federal government should simply deny federal funding to Yale. He's like, okay, great, do it. But I don't have power over that. Pretty good response. Two, alums should simply stop donating to Yale. Again, once again, he says, I don't see why we can't pursue

all of these options at the same time, especially considering how alumni donors are less likely to have any real impact. So now he turns to the criticisms and David, I wish he had spent a few more pages on this because not to be self-aggrandizing, like I think my criticism is good and it gets short shrift. So criticism number one, boycotting Yale will hurt future Yale students. So better that nothing be done. I mean, first of all, that's a bit of a straw man. So better that nothing be done.

I think their point is that things were being done behind the scenes. There were conversations happening that maybe he wasn't aware of and that those have now broken down because of this. So it's not better nothing be done. It was better that this not be done. And then he says, moreover, it bears emphasizing how modest this effort is. It's not difficult for Yale to restore order. And this is what addresses my criticism that he needed to lay

out specifics as to what the boycott is against and how Yale would remedy this to end the boycott. Because without that, I don't really know what we're doing. It's not a boycott if it's not specific. So here's what he says about the specifics. All I'm asking is that students be able to invite speakers, including conservative Christian speakers, without having to worry about police protection, public opprobrium, and professional intimidation? Is that really too much to ask that Yale teach its students to respect religious liberty and celebrate the rigorous exchange of ideas? I don't think it's a big ask. Here's the

problem. Without having to worry about police protection, police opprobrium, and professional intimidation. That's really murky to me. Public opprobrium? Super murky. Surely you're not saying that it's Yale's fault if its students tweet that they don't like that a speaker came to campus and it's the FedSoc who invited them or something. I don't have a problem with that. That is protest. That's not disruption. To me, the test is a speaker comes to campus who is controversial in any way, and that that speaker can speak to people who want to hear the speaker. That's it. If you need to hire police protection, okay, Salman Rushdie has to have police protection.

Lots of people have to have police protection. I don't like it, but that's not Yale's. Yale can't prevent that part. Public opprobrium. That's what protest is. That's what free speech is. And then professional intimidation. I think in there, he's actually saying professional intimidation from the school itself, which is what happened around some of the trap house stuff and some of dinner party gate with Amy Chua. Yep. That part, I think you can hold Yale to the feet to the fire for, but spell it out. Say professional intimidation from the school because that's why you're protesting Yale. So I think that needed a lot more space. Everything, that's page 22 of 24, everything that comes before it about the problem is fantastic, but I, A, it was a valid criticism that there were other conversations going on and that you've disrupted those. And instead, you kind of straw

man's those. B, to say that you're supposed to lay out what Yale's supposed to do and then treat that in one sentence, like, no, actually lay out how Yale is supposed to meet your markers, whatever that is. In the next year, I expect the Fed Soc to invite three different speakers. After the third speaker can speak, then my boycott will be done. I don't know, but you have to say something. And then four, of course, he says, there's the criticism that boycotting Yale amounts to viewpoint discrimination and retaliation. I don't know if this criticism is the result of extreme naivete or gross deceit, but either way, it misses something fundamental about the state of our world. Viewpoint discrimination and

retaliation are already occurring right now. I provided numerous examples here, and I've explained why they are illustrative rather than isolated. So the only question for us today is whether we should just continue to suffer viewpoint discrimination and retaliation or put a stop to it. It's the Bill Buckley line all over again. We're trying to push the little old lady away from the bus, not toward it. This was the example, of course, of pushing little old ladies around. It's the same whether you're pushing her into the bus or away from the bus. Sure. Except again, it's not the only question before us today. I wanted more on that. Yeah. Yeah.

Well, here's what I did like. It says, as a strictly legal matter, the First Amendment applies only to the government. It doesn't force private citizens to respect the free speech rights of others. But if you think that's the whole story, you have an impoverished understanding of what it means to live in a nation based on freedom. I think that's a really important point. And this is something that I've been arguing for a very long time, is that you can have all of the legal protections for free speech, but if the culture scorns free speech, you will live in an atmosphere of intimidation and fear. You will not feel free to speak.

And also if the culture scorns free speech over time, you will actually lose the legal protection for free speech. I don't think those two regimes can live in tension with each other indefinitely. You can't indefinitely have a world like we have right now, where free speech is a formal legal matter, extremely well protected. But the culture of free speech

is being degraded week to week, month to month, year to year. Now, I do think there is an argument that we have perhaps passed sort of the peak of intolerance, but we'll only know that, you know, maybe in a year or two or three years. But I do think there's a strong argument that we have already seen the peak of this. I hope so. I hope that's the case. But you're right, Sarah. The fact that you have police

protection in some ways is a symbol of an organization's commitment to free speech. I remember giving a speech pre-pandemic and right before I came to the dispatch and I had police protection and I had a bug out plan and the goal of the police protection was first to try to ensure that the speech could take place. In other words, if somebody was disruptive, individual disruption they could handle. The bug-out plan was for large-scale disruption where they couldn't really get a handle on the crowd. Unfortunately, none of that happened. It actually turned out to be an event that took place without a hitch.

A lot of the sort of threatened protests that you hear about on college campuses, a lot of those don't actually materialize. But when you have, you know, when you have police protection, sometimes that's a way you guarantee free speech and prevent a heckler's veto. And I think that's an important point to make. All right, David, let's wrap with, as I said, sad but hopeful. So since we moved this podcast to home at the beginning of the pandemic, our editors have tried their best, but I'm sure many of you have heard the meowing that occurs frequently where my cat, Zooey, had learned to hop up on the standing desk through a series of Rube Goldberg-like maneuvers to meow into the microphone.

It's like he knew. And on Friday, he passed away, David. And it was incredibly hard. And I just wanted to give a shout out because I feel like as a society, we're coming a long way in any number of things, paternal leave, and not just to have the leave on paper, but that men should take the leave, for instance.

And that has caused a cultural shift. And you know what? We don't keep our dogs out in dog houses in the backyard anymore. And we don't have our cats mousing in the barn. These are members of our family. Um, so when I was a 2L, the hiring partner at my firm at Wiley Rhyme found four kittens. She took two and I took two and I named them Franny and Zooey after the Salinger book. And I know I'm going to get emails about the pronunciation that it should actually be Zoe. Look, it's debatable, but we called him Zoo.

And for, uh, I had Zoo for 15 and a half years. He lived with me in 14 different places. That's amazing. And he was just my constant companion and a member of our family. And you forget, you take for granted, every time I'd come in the door, he would be waiting at the door. Every time I came out of the shower, he'd be waiting at the shower door. Now, mind you, at the shower door, he just wanted to get in and get some of that fresh, fresh drinking water. He didn't really care about me at that point. I could walk off. He woke up every morning with Nate and ran into his room to check on him like he was there

to change the diaper. And so I think that we should be more open as a society to people who are grieving members of their family who had four legs or fur or feathers or shells. You know, I see people having a lot more public compassion than they used to on this. And look, you know, I'm not somebody who says, I'm not somebody who's ever going to equate pets and children like as, you know, in the moral universe. Not the same. But we said goodbye to our oldest dog several months ago. And one of the reasons why it was so hard was because we love our kids. Because this dog was, especially my son's, every time he'd come home from school, he would say, where's my best friend? and here comes our dog charging in to see him. And our oldest dog was a little ornery at times. And the only person he was relentlessly kind to was my son. And so,

you know, one of the just tremendous sadnesses of saying goodbye was the impact it had because he was such a wonderful companion in particular to my son and that you mourn your dog, not just because he's your dog and you love your dog, but also because of the impact that he has had on your kids. And I'll never forget when he was first brought home, the very first moment my oldest daughter said, we'll never be bored again. That was not actually true, but, you know, it's, and the other thing is, as you said so well, you know, these pets are with us and Mark,

different part, they journey with us along the way. They're with us through so many different things. And how many times, you know, can somebody say that just that unconditional love actually made a difference for you? You know, that unconditional love was actually kind of soothing to the soul in an important way. Zoo knew I was pregnant before the test said so. And Zoo knew about the miscarriage. I mean, they're very empathetic creatures. I think the hardest thing is, you know, you mentioned having like an older child dealing with that sense of loss that they deal with incredibly hard. Can't imagine. At the same time, I will tell you having a two-year-old ask you all weekend, where's Zoo? Where's Zoo? Is Zoo under the bed? Is Zoo outside?

You know, and he came with me when we went to the vet. It all happened very quickly, which is a blessing, but also, I don't know, hard to just, everything's hard in its own way. And he was like, what are we doing? And I was like, oh, we're taking Zoo to the doctor. He has a tummy ache. He keeps, you know, saying Zoo has a tummy ache. Nate has a tummy ache, you know, because he's like feeling that empathy

or like when we get in the car, when we took Zoo, he was meowing because Zoo did not like car rides. So he's like, Zoo meows in the car. And it's hard for him because he can't understand where his buddy went. He and Zoo, like Zoo would get in his bed with him. But also it's hard for me because I can't explain it to him. And I'm grieving too.

And, you know, he's crawling under the bed saying, Zoo, where are you? And like, it's all very hard, David. And so for those out there struggling with that, first of all, please don't email me right now because I'm not sure I could handle it. But, but I think we are turning into a more compassionate society, David, and pet death should be something that we maybe honor a little bit more. You know, who's really good about that? Our colleague Jonah. He is. He really is. Yeah. Well, Jonah sent treats to Zoo. And to be clear, Zoo is survived by his sister Franny. Zoo always had more health problems. If you've ever been to my house though,

Zoo was like the first one to greet you. He would sit next to you and be part of the conversation, fold his paws. He was like, yes, interesting point. Fran is wonderful, but she is really only my cat and actually does live under the bed and only comes out after Nate is sound asleep, not making noise. And she pretty much only lives in my bedroom. So she might be a figment of my imagination. Well, I'm very sorry, Sarah. Thank you. Well, listeners, I think the hope part of that is hopefully we're getting more compassionate towards people. No, the hope part is the part of the reason it's so sad is because of the love that we experience.

Yeah. And how is that not hopeful? You bring in these new members of your family in a way that in really, the long view of human society wasn't true. And how wonderful that we get to love these creatures and that they love us too. And that's really hopeful. And even if that means that it comes to an end,

because it was my first pet 15 and a half years, not bad, little guy. Not bad at all. Not bad at all. Not bad at all. Well, thank you everyone for listening as usual. And please wait how many hours before sending you an email, Sarah? No emails about how much,

how sad you are about your pet. I just can't right now. No emails. No emails. I don't know when the time will be right, but it's not now. I can't answer that topic. No emails. But if you're, I mean, comments like just like, yeah, yeah. Be cathartic in your own home right now. Yes. And, but if you have super cool stuff, like I was first in line at Bush v. Gore, you know, that email is welcome and keep them coming. So thank you for that. Thank you for listening. Please subscribe.

Please rate us. We really appreciate that. And check out thedispatch.com.