Advisory Opinions - The Walk of Shame (Is Protected Speech)

Episode Date: March 16, 2023

Stanford Law School students want to have it both ways on speech rights, which means you get to enjoy a firey sequel to Tuesday's epic, infinity-long episode! Plus...  -Your comments on the Stanford Squeeze, answered -Stanford dean getting the Game of Thrones walk of shame treatment -Sarah is on a journey -A brief aside on Amy Wax Show Notes: -Article: Law Schools Must Stop Intolerance From Disruptive Students -Wax's Grievance Letter Learn more about your ad choices. Visit megaphone.fm/adchoices

You ready? I was born ready. Welcome back to Advisory Opinions. I'm your host, Sarah Isger, joined by special guest, David French. Opinions. I'm your host, Sarah Isger, joined by special guest, David French. David, are you recovering from our marathon special Stanford Law School in Crisis episode? Yeah, it took me two full days, but I've now fully recovered. I'm ready, rested. How long today? Are we three hours today?

Yeah, we'll see how it goes. Because we actually, we have a really nice lineup, I think. So we're going to start with something called the Biden Report, which the vast majority of you have never heard of. But for all of our district judges out there, y'all know what we're talking about. We'll do a little recap on Stanford, some latest updates, some questions that we got in the comments section that I think were worth answering. And then finally, Rahimi revisited a new opinion out from the Fifth Circuit and especially Judge Ho's concurrence that I said, I don't know, I'm starting to be a little persuaded. So we'll talk about that. And finally, speaking of academic freedom and free speech and the whole ball of wax, we're going to finish with some Amy Wax over at the University of Pennsylvania.

All right, David. So every March 31st and September 30th, but we're going to talk mostly about the impending March 31st deadline, federal district court judges are subject to a soft deadline known as the six month list, also called the Biden report. And basically this is every judge's backlog. So cases older than three years and maybe most importantly, motions pending more than six months. And that list is made public twice a year, March 31st being the deadline that's coming first. Now, obviously judges have life tenure. You can't touch them. So it's not like this list has any actual putative value, but it's sort of like a public name and shame, if you will,

that Congress instituted to try to like get these judges moving along. Totally understand the reason for doing it. But as I heard from one such district judge out there, the incentives can actually create kind of a perversion, if you will, because look, a few things. One, the motions that would be on that six-month list then get sort of a speeded up treatment. Errors are much more likely on those that would otherwise have made the list because they're just sort of put out there. Interesting. I'd love to see someone do the data analysis on the likelihood of a motion being overturned at the circuit level and whether that likelihood goes up if the motion was released close to either of these six-month deadlines. But also, it's

interesting because if it wasn't, if there's a motion pending that's four months old, so it's not going to be on the motions list here, then it actually gets delayed because instead they're going to go back and deal with the ones that would otherwise be on the list. And so something that would sort of come out much faster normally is now going to take a little bit longer if you, you know, maybe had the hearing on March 1st, for instance. I think judges would tell you by and large that that's probably not a good thing, that everyone should be treated the same regardless of whether you had your hearing on March 1st or if you had it on April 1st, but that that's actually not what happens.

David, what do you think? So, yeah, this is a fun little topic because it actually pings and a memory receptor of extreme frustration. Because I remember the world before the Biden report slash rule, the six-month rule, and it was bad out there, Sarah. It was bad out there. So if you're a district judge and you're really frustrated by the six-month rule, my advice would be to look to your left and look to your right

and see who amongst your colleagues is the cause of this rule. Because there were judges, Sarah, I am not exaggerating, that prior to the six-month rule, if you filed a motion for summary judgment in a case and it was not a case that the judge was particularly interested in, you could wait a year. You could wait 18 months.

You could sometimes wait two years. I had colleagues in civil litigation who filed motions for summary judgment in cases that well waited well over a year and it wasn't unusual which is just absurd i mean absolutely absurd so when you're talking about the six-month list you're talking about a response to an outcry from litigators it's like is there any form of accountability to make people do their jobs? Now, most district court judges were not like this, but all of this is foreseeable. Whenever you do a report, whenever you have a government requirement or in your private sector jobs, a requirement for periodic reporting, everyone knows what this means.

What it means is a flurry of last minute activity. That's absolutely inevitable whenever you do anything like this. But my view on it is it's the best of bad options when you don't have really any concrete way to make a district court judge do their job. And of course, for those district judges out there who do feel that March 31st pressure, you could also just not procrastinate and do your work ahead of time. We're not dripping with sympathy, are we? Look, I actually, I think it is a real problem. This is, you know, law review articles have been written about this, but I think if you talk to district judges, they'll tell you the same, that there are reasons why something might have

been pending for five and a half months. And then when you see the six-month list deadline coming, you do sort of hurry up and that that's where those errors are going to be more likely. And like I said, I'd be so interested in seeing whether that is borne out in appellate reversal orders. That's not great if that intuition is correct, that they are hurrying up, they are making more errors. In which case, David, as a litigator, that's an interesting choice you've got too. Would you rather flip the coin on an error-filled five and a half month order? Or would you rather wait a year, but it's unlikely to have errors? I can't imagine a situation where I would say, I'd rather wait a year.

I had one case, Sarah, where I had a summary judgment motion that we lost, went to the Fourth Circuit Court of Appeals, won on appeal, went back, new summary judgment motion filed. Both summary judgment motions took more than a year to resolve. The entire case, as a result of that, one of them took almost two years. As a result of that, the entire case took almost seven years to unfold. I mean, fair enough. That still happens. This list, again, doesn't actually have any force of anything. It's just a name and shame. So the judges who were shameless to begin with are going to remain shameless. The judges who didn't write their college papers the night before it was due are going to continue having their work

done at routine, timely manners. We're talking about those middle judges, if you will, the ones who like to think of themselves as punctual but just get a little behind the eight ball. That's where the list is going to come in. So anyway, I'll be interested to see what listeners think about this. And for all you district judges out there,

you've got one week left. Little more, little more than one week. It's the Ides of March today, David. So beware. It is the Ides of March? Yes. Oh, okay. I have no idea when that occurs. Wait, seriously? Other than in March. Yes. I know it's in March. The Ides of March are in March, but... David, it's really easy to remember. It's March 15th. It's the middle of the month. I know. I know. I know. And the day before is Pi Day.

It's like there's a whole flurry of wonderful holidays. Pi Day, Ides of March. I mean, it's great stuff. Okay. Yeah, Pi Day I knew. Yeah, Ides of March. Just didn't know. I'd heard of it.

All right. So let's do a little Stanford Revisited. Since we spoke, there's been a little bit of a new event. So Dean Jenny Martinez is not only the dean of the law school, she is also a constitutional law professor at the law school. And she is teaching con law this semester. When she showed up to class this week, her blackboard, which isn't black anymore. What do you call it when it's a whiteboard? Her whiteboard. I guess that's what it's called. Her whiteboard was fully papered over with signs that read counter speech is free speech and other similar slogany things. And on her walk from her office to her classroom, her classroom to her office, I forget which direction it went, students created a human

corridor. About one third of the Stanford Law School class was present. They were all wearing black and it was meant to be a walk of shame. Protesting her statement in which she said that the law students at the Duncan event had violated the school's policy and that the dean, the DEI dean, had acted counter to that policy as well. So both pieces of that they disagree with. Now, I think it is worth pointing out that if they had done that to Judge Duncan, we wouldn't be talking about it. What they did is just fine. Yeah. Posters in class and a silent corridor protest? No problem. That is counter speech. Right. Exactly. Counter speech also could be holding an event at the same time in a different room. Counter speech could be holding

an event right afterwards or out in the quad. I mean, counter speech is not speaking at the same time. And it is not subject to majority rule. And it is not subject to who can be the loudest. That's not counter speech, y'all. Right. I mean, and that's why, remember, at the very beginning, when we were talking to Judge Duncan, I specifically asked,

was this a situation where you had occasional bursts of heckling or groans of disapproval or shouts in response to something you said, which is annoying, but you can give your speech and audience reaction during a speech is not the heckler's veto? Or was this a situation where you faced a wall of sound where you couldn't be heard? And he clearly said it was the latter. There are people who have come forward and said, no, no, no, that's not the case. It was not the case that he couldn't deliver his speech. And so far as I know, there is no publicly available recording of the entire event. Now, allegedly, Stanford may have made a recording of the entire

event, but I don't think that there's any publicly available recording of the entire event. What I've seen certainly qualifies as much more in the heckler's veto world. And look, if the Stanford law students are operating under the assumption that there was not a shout down and they're being punished, okay, okay, I can see your point. But if you're operating under the presumption that you, or the assumption that you have an ability to shout down a speaker, you need to stay in law school a little bit more. I mean, come on. This is the problem. The arguments from the other side are being a bit muddled.

Yeah. And I don't know whether they're being muddled because the defenders don't quite have the facts. So they're muddled or that the law students don't quite know the law. So they're muddled. But the defense falls into a few different buckets. And I think we should discuss each one. Defense number one, which is what you just said, is he wasn't actually shouted down. There was random intermittent heckling, which is not actually heckler's veto. And that is First Amendment protected speech. And let's just for the purposes of this conversation say that Leonard's law, which applies parts of the First Amendment to private universities in California, let's just treat this like we're talking about the First Amendment for our purposes.

Okay, so bucket number one, they didn't actually heckle him. There was intermittent yelling in response to some of his more egregious statements, so there was no disruption to the event. Okay, like you just said, David, if that's your argument, then actually David and I are right here with you. Right. There seem to be a lot of facts. Like that's a factual question. Right. Exactly. Exactly. So present those facts, make that, you know, factual case. No problem. Because Judge Duncan and the reporters who have talked to students who were in the room say that it was pervasive. Okay, that's bucket number one. Bucket number two, counter speech is free speech, which is what we just talked about.

That's just like heckler's veto. There's nothing wrong with it. Majoritarian rule, the loudest voices in the room, that's how this works. It's literally not how this works. It is not how this works at all. Counterspeech is something different than heckler's veto. Third bucket, which I think is also interesting, is yes, the event was disrupted. Yes, we heckled him off the stage so that he wasn't able to speak. That's called civil disobedience. I am also very sympathetic to that argument. If you believe that there is a law or a policy that is unjust and you would like to highlight that, you can violate that policy or law to prove your point.

And in this case, the students saying that the free speech policy at Stanford allows odious speakers to come to their campus who are rude and dismissive and believe things that are outside the acceptable norm of conversation. And so, yeah, we violated the rules and Leonard's law potentially. That's what we felt justice demanded. I got no problem with that argument, but civil disobedience also means that you accept the consequences of violating the rule. And right now the students seem to be saying, the civil disobedient bucket of students seem to be saying,

we violated the rule under civil disobedience because it was unjust and that's why we can't be punished. What? I don't follow that. Yeah. No. You're right. And this is actually endemic. I have seen this argument in the context of interrupting speakers. I've seen this argument in the context of blocking interstates, for example. I've seen this argument all the time in the context of disruptive protest. It's just civil disobedience.

Fine. Understood. Peaceful civil disobedience is there's an honorable tradition of peaceful civil disobedience in this country, except the consequences. That's part of it is accepting the consequences. And so, yeah, absolutely make that argument. But if you're making that argument, again, you're with us because you would say,

yeah, there are penalties. There are consequences for this action. And the idea that you can violate the law and not accept the consequences is not civil disobedience. That's much more heckler's veto. As someone said, it wasn't called letter from a Birmingham coffee house. True. Well said. Okay. Next bucket is Judge Duncan started it. That when he took the podium initially,

and again, this is somewhat factual, but also not in my view, that when he took the podium initially, he started out by saying things like, I'm not blind. I can see this outpouring of contempt. At this school, the inmates have gotten control of the asylum. Y'all are juvenile idiots. Before he even got into the room, walking down the hallway while they were protesting him fully in compliance with Stanford's speech policies

and Leonard's law, that he started recording them with his iPhone and that he was getting up in their faces by doing so. And that that's when one student turned to another and said, this is about to get real.

It's on now. So Judge Duncan started it. Here's my take on that bucket. Once a speaker has been invited to campus and the school has put their imprimatur on it, that speaker can stand up at the podium and say outrageous things to you. Imagine if they were a shock jock or an insult comic or something. It doesn't change the First Amendment analysis whatsoever. Not at all. So look, I'm not sure that the facts totally back up that Judge Duncan, when he first stood at the lectern, said mean things to them. My impression from, again, the reporting and from Judge Duncan is that he started talking, they started heckling, and then he started saying mean things to them, which also just

kind of makes more sense. But let's say the alternative, right? They're holding up mean signs. And so he says something to them right off the bat. I'll accept those facts for the purposes of this bucket. Doesn't make one bit of difference to the legal analysis. Yeah, exactly. And on the videotaping point, and by the way, I love that we still use the term videotaping, although because nothing is being. It's neither video nor tape. It's not being taped at all. Anyway, so on the video point, this actually echoes back to something we talked about before, which was when we talked about the confidentiality of law school protest

or the confidentiality of law school dissent. And I do think that some of these protesters actually view any sort of publicity of their protest as an affront. And so when he starts taping them... Which is directly contradictory to the civil disobedience point. The point of civil disobedience

is to bring attention to unjust laws. So you need attention to do that. Exactly. And also, they just put up a bunch of posters of Federalist Society, the pictures of Federalist Society members of the board. So the idea that we've got these extremely delicate folks who can't have their picture taken

by somebody they're protesting, or the view that taping a protest is somehow inherently provocative is a little weird to me. Everyone knows the ethos of this time, which is when you start taping, taping is not necessarily aggressive. It's often self-protective. In other words, the instant you start taping is the instant that everything is being recorded. And if you feel like you're about to be treated unfairly, beginning to tape somebody or record somebody, to use more precise terms, is a rational thing.

I mean, this is something that happens when you're afraid that you might suffer some sort of abuse at the hands of police, for example. Begin recording the encounter on your telephone. you might suffer some sort of abuse at the hands of police, for example, begin recording the encounter on your telephone. A lot of people do this as a purely defensive response to a perceived aggressive or dangerous situation as a way of protection and accountability, not as provocation. To view that as inherently provocative, I think goes back to this entitlement we've talked about before in the context of Yale is,

what I get to do in law school is what I get to do in law school. It's not Las Vegas, y'all. Right, exactly, exactly. What happens at Stanford does not stay at Stanford. Now, that being said, I wanna acknowledge some of the fallout of that, which is simply true, which is it is

going to have a chilling effect. It's going to have a chilling effect both on the people willing to protest, and it's going to have a chilling effect on the people willing to sit in a room to hear a speaker that they know will be protested because people on the protest side were videotaping, people on the FedSoc side were videotaping, Judge Duncan at one point's videotaping. And so, yeah, if you don't want to be part of that whole mess, you're not even going to be able to show up to hear the speaker. I think that's part of how to understand Yale's response to what happened at Yale included a no surreptitious recording rule. Now, that would be different than I think think, sort of open, notorious recording with an iPhone, where it's very clear. But nevertheless, I think that is why Yale instituted that. There are some problems with that, as we've talked about. In the case

where there was actually a surreptitious recording, it was a member of the administration threatening a law student. So that's not really what we're talking about. But fair enough. Surreptitious recordings have an effect on a culture as well. That's not great. I acknowledge that. Okay, David, now I want to kind of flip the script here because there's also, well, on both the left and the right, talking about this Q&A, left and the right talking about this Q&A, that the students' questions were outrageous, and that that somehow maybe violated the rules or the policies or whatever, and that the judge's response was outrageous, and that that's why the questions were what they were,

and that he deserved everything he got, yada, yada, yada. Here's my response to that bucket. Yep, Q&A is what it is, man. I think that we were making a distinction between can versus should. The students are allowed to ask whatever questions they want and not violate Stanford's policy on free speech. There might be some other civility policy or something, but as far as I'm concerned, I only care about the free speech aspect of this. They can ask whatever they want. Should they ask questions about a judge's wife's genitalia? I would suggest that they should not, but that's a should question. And in the reverse, should the judge have called them idiots and belittled them and denigrated them? No, it wouldn't have been my choice. But it has nothing to do with the legal analysis whatsoever.

So the Q&A in that sense is irrelevant. Right. No, you nailed it. I mean, you nailed it. Should they ask those questions? Of course not. Of course not. Should the judge have snapped in response?

I mean, we asked him very specifically about that. Like, how does he feel about that in hindsight? And so, you know, we asked him about that question. And look, if I was mapping that out and my preferred response in that circumstance, I wouldn't do it. And as we talked about, when I've had a chance to prepare for an attack. It's very different. My response has been very different than when it's sort of a surprise. Just, and that's kind of part of being a human being.

But I think that the should and the must distinction there in the Q&A is an important one to draw. Absolutely. If there had just been a miserable, aggressive Q&A with Judge Duncan at Stanford Law School last week, we wouldn't talk about it and nobody would care. Maybe it would get some attention on Twitter about the specific question that we've been talking about, but then we'd all roll our eyes and be like, well, kids are going to kid. I heard from one source that that person might have been an LLM. And for anyone who's been to law school,

we can all roll our eyes at the LLMs, okay? I get it. Little LLM shade on this podcast today. And we'll take a quick break to hear from our sponsor today, Aura. Ready to win Mother's Day and cement your reputation as the best gift giver in the family?

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Mother's Day. Listeners can save on the perfect gift by visiting auraframes.com to get $30 off, plus free shipping on their best-selling frame. That's A-U-R-A-Frames.com. Use code ADVISORY at checkout to save. Terms and conditions apply. Okay. I want to talk about some other aspects of this. Oh, just on that note, one response was, you know, we don't have titles of nobility. You shouldn't be deferential towards judges. Again, under the law, no, of course not. In practice, these aren't random Americans on the sidewalk. These are people who are training to show up to work every day with him as a colleague. That's the should part that I don't agree with. But again, it's not a must.

Do what you want. It just goes to like, is this really the profession you want to go into? Because he's going to be a judge regardless. You get to pick whether you want to be a lawyer. Yeah. So here's a question. I have a question for you, Sarah.

This is a decorum question. How close does a judge have to be to you before you use their first name in casual conversation with them versus calling them judge? It depends whether, so there's a few factors. One, did I know them before they were a judge for a long and sustained period of friendship? Necessary, but not sufficient. So if I only met you after you became a judge, I'm never calling you by your first name. But assuming that there was a long period of friendship before you became a judge, the next question is, are we alone or with other people who are similarly situated to me? I am never going to call you by your first name in front of

lawyers practicing in front of you, law students, or even if we have mutual friends, but those friends didn't know you before you were a judge, so that now they're going to be in a weird spot of what to call you. I'm just going to call you judge. But I'll give an example of Judge Rudofsky, who's out in Arkansas, who was, as I've mentioned before, like my big brother in law school, an incredibly close friend of mine. If I'm with him, his wife, my husband, and Katie Biber, like, yeah, I probably am going to call him Lee. Because unless I'm being sarcastic, hey, judge, pass the mac and cheese. Your honor, I'd really like those collard greens. I'm thinking

of the last meal we had together, by the way. What about you? I, I, that's exactly the same. I mean, if I've known you for a long time before, I'll call you by your first name, but only when we're either together or with other close friends. If it's with anyone else, it's judge. And it's the same with congressman, senator, governor, other titles. And the reason, and I think there's one thing, distinction I want to draw between nobility and democratic institutions. So it's not that I am believing that this person is nobility in any sort of way when I'm using the honorific. What I'm doing is I'm paying tribute to the institution that they belong to. It's a respect towards the institution. In much the same way in the military,

it's always the phrase is, even if you don't respect the person, you respect the rank. even if you don't respect the person, you respect the rank. And so in the military, when you call somebody captain or sir or ma'am, you're not necessarily doing that because you find Captain French all that respectable. You're doing it because you're respecting the rank, the position, and ultimately the institution itself. And I think it is somewhat important and valuable to respect these institutions, especially at a time of real institutional distrust and mistrust. These institutions do matter. And these forms and manners that we erect as scaffolding around these institutions that sustains them and keeps them up, I think they are important. No, they're not nobility, but the institutions do matter and your role within the institution matters. That's what I think of when I'm saying judge or senator or congressman or using an honorific outside of the formal work environment. All right. I've got four more quickies to go through.

These were questions from our commenters. And remember, you could be a commenter, too, if you become a member of the dispatch. discomfort ranging to outrage, where Judge Duncan said he would only consider hiring the FedSoc members in the room and not the protesters in the room as law clerks. And this raises the issue of opposition clerks. And I don't want to hold myself out as an expert on the history of opposition clerks, but let me tell you my understanding through some knowledge. the history of opposition clerks, but let me tell you my understanding through some knowledge. Most judges across the ideological spectrum hire law clerks that agree with and subscribe to their judicial philosophy. That being said, Justice Scalia was famous for hiring one of his four law clerks as an opposition clerk. Not every single year, but most years you could find someone

who fit that. And then towards the end of his career, he kind of stopped doing it. And he was asked questions about that. And I've been there to hear some of his answers. And his answer was, look, at the beginning of my career, it was so helpful to have my ideas prodded and pushed and sort of, you know, forge that writing through the process of that sandpaper. He's like, but frankly, as I've gotten through my career, I know all of the great arguments. I've worked with my colleagues for so long. I understand their arguments as well as they do. And so the purpose of an opposition clerk has faded away. And there's downsides to having an opposition clerk and that they're not necessarily as good at writing what you do want them to write

because they don't agree with it. They don't speak that language maybe as their fluent first language, if you will. I will also say that I have never understood there to be any opposition clerks hired by the Democratic appointed justices, nor am I aware of any opposition clerks hired by Democratic appointed justices at the circuit level. I now am not aware of any opposition clerks hired on any across the ideological spectrum for what that's worth. There used to be some at the circuit level on the right. And mind you, I'm going to know more about the right than the left anyway. So when I say I'm not aware of, I really do mean I'm not aware of.

Right. Not that it doesn't exist. Yeah. So look, you can, you know, hate the player, but I'm not sure or hate the game, but I'm not sure you should hate the player here. Judge Duncan is stating what is sort of a known thing. A liberal judge is not going to hire someone who has Federalist Society on their resume. And a lot of the conservative judges aren't going to have someone who doesn't have FedSoc on their resume. And by the way, there are plenty of judges who don't fall on either of those two sides of the ideological spectrum who aren't going to care much one way or the other. So there is that middle ground,

but don't think that it's one side acting differently than the other side is. Yeah. And there is a little bit of an interesting sense of entitlement that's like, I can shout you down and I should be able to work for you. Which they also wouldn't do. None of these people are applying to Judge Duncan. Yeah. I mean, are those people? Yeah.

So, no, I, you know, the idea of the opposition clerk is a very interesting idea. And there's, you know, there's a reason for a opposition clerk also in the sense of, hey, wait a minute, what if you find an extremely talented, extremely smart person who's going places as a law student and you want to introduce them to conservative judicial jurisprudence? See, I think that's why neither side of the more extreme ideological beliefs hires opposition

research clerk opposition law clerks anymore because they don't want to credential someone who they know is going to work against their judicial philosophy for the rest of their careers yeah that's a that's a good point that's a good point okay next question why should um crazy I'm going to quote the question here because I thought it was pretty well done actually why should crazy, I'm going to quote the question here because I thought it was pretty well done, actually. Why should crazy progressive students have to learn to bend the knee to quote originalist judges because they control the judiciary, but also poor FedSox students are being blackballed by big law? No, no, no. Both should have to speak the other's language. The judiciary, as David said, is about 50-50 actually right now. It's just that the conservative students spend three years learning to become fluent speakers of

liberal judicial philosophy in academia because that's what law school is. The liberal students don't get that through their legal education, and that's why they may want to attend speaking events from people who aren't their law professors, who profess a different judicial philosophy to start learning that language or read opinions or law review articles by people they don't agree with. It's not that they have to learn originalism and the conservative students can just not learn anything because there's all these originalist judges on the bench. Quite the opposite.

Yeah. I mean, let's just put this in perspective. In three years of law school, for me, the furthest right professor I had was a moderate Democrat. That was the furthest right professor easily. Like Marianne Glendon, who is conservative on the faculty, I think she spent two of the three years on some form of sabbatical when I was there. And I didn't get a chance to take a class from her when she wasn't on sabbatical. Charles Freed, former Reagan Solicitor General, was there, but I didn't get a chance to take a class by him. And that was it. And that's the list.

And Marianne Glendon was the only one who was socially conservative. Charles Freed was very much in the mold, really didn't like social conservatism. It really irritated him, it seemed, back in the day. And so it was very much of a, I, the only time I heard conservative legal thought was either when it was assigned as a reading or with a guest speaker. And that was it. And, and I'm sorry to say at the elite law school level, that's just the flat out reality. So nobody's being, you know, the, these, these progressive students aren't being subjected to anything. They're there. They've got, they're swimming with the current man. They're coming in with the tide

in these elite law schools. It's just a fact. It's just a fact. Now, there are some people who are so far left that they're swimming against the tide. There is such a thing. And when I was at FIRE, we looked at it with the concept of the Overton window. And there was always someone to the left of the Overton window in the academy, but the Overton window was on the left of center relative to the rest of the United States in the academy. And that's just beyond dispute at this point. And fun little anecdote on that. So I did take Charles Freed's First Amendment class. It was awesome and amazing. And then in November, he randomly said, hey, is anyone driving to New York for Thanksgiving? I need a ride. And I was like, me? I am actually. And so very early on

Thursday morning, Wednesday morning of Thanksgiving, Thursday morning, I forget. I picked Charles Freed up at his home and his wife had packed us little brown bags of roast beef sandwiches. And then it struck me that I now had to make conversation with Charles Freed for three and a half or four hours. And I had not prepared anything. And I really, really should have, because like, what was the point of driving him if not to have a wonderful intellectual conversation? And I will tell you, David, also, I had a friend coming with me. She promptly fell asleep in the back and slept the whole trip. Oh, you're kidding.

So she was useless. And the best part to come out of that road trip was asking Charles Freed what his favorite book was and the answer was Uncle Tom's Cabin so I immediately went home and read it and actually it's an amazing book and if you haven't read it and you know the book that is credited with starting the Civil War with only some exaggeration. There's that line where Lincoln meets Harriet Beecher Stowe for the first time and says, so you're the little lady who started this great big war. It's a wonderful book. And I feel like we all know about the book, but very few people have read it. So that's my random recommendation today. You can buy it at any used bookstore for 50 cents. Just go read it. So that's my random recommendation today. You can buy it at any used bookstore for like 50 cents. Just go read it. It's pretty short.

So I have a very short Charles Freed story. After the case CLS v. Martinez, which just the phrase, the words CLS v. Martinez in that sequence really causes an involuntary negative physical reaction for me. It's the

last real loss for religious liberty at the Supreme Court. And this is a case going back to 2010. It was involving a student group that wanted only Christians to lead a Christian student group. And it was going against a policy put in place at Hastings College of Law, UC Hastings College of Law, that said that no student group could have any criteria for membership or leadership. In other words, it's an all-comers policy. I think only one of its kind in the country. Very weird case to get to the Supreme Court. Probably never should have gotten to the Supreme Court. Anyway, the Christian student group

lost. And they lost in part because they entered into a stipulation at the trial court that UC Hastings policy was not viewpoint discriminatory. And so they kind of stipulated away one of their key legal arguments. If I remember the stip, I believe that was the stipulation. Someone will write in and correct me because I'm going by memory here, but there was a key stipulation that stipulated away a key legal argument. So after the case came down, I was invited to debate Noah Feldman at the law school by the HLS Fed Soc about the outcome of the case. And I was going to say the case was wrongly decided. He was saying the case was rightly decided. Charles Freed was the moderator of the debate. And this is how he began it. He says, all right, in reading this case, and he talks about the stipulation,

and he looks at me and he goes, who? Mr. French, let's start. Who was the idiot who agreed to that stipulation? And that was the beginning of it. And I happened to know who it was. Wasn't me to be clear. I know it was. Wasn't me, to be clear. I know it was. And he's far from an idiot.

Like, he's far from an idiot. It was a tactical mistake made in the case that ended up having major consequences. But far from an idiot. But that's not the way you want to start a debate about an outcome of a case by defending, quote unquote, the idiot who allegedly lost the case. So that's my Charles Freed story. I have deep concerns. Charles Freed is still at Harvard Law School, still teaching. And I graduated 15 years plus ago now. And at the time, he was famous for being in the gym, for running slash kind of fast walking on the treadmill while listening to his

iPod. So everyone always wanted to know what was on his iPod. And the answer, by the way, was Verdi. Like it's all opera. He's a big, he would run to opera. And I'm deeply concerned looking back. He seemed like ancient back then. So, you know, 20 years ago, like when I'm starting law school, basically an ancient human. And I'm deeply concerned looking back that he might have been, you know, 65. Yeah. I thought of him as older in when I was in law school in 91. Okay. But he is born in 1935 and he is 87 years old. Okay. So he was, he was 70. That's still yikes. We were like, how does he walk? Oh, man. Professor, I know you're listening. Highest respect for you. We're sorry. We're sorry. We thought you were old. Okay. Last couple of questions here. David, this one is to you. Why should they have the right to express

their conservative views at work, referring to conservative lawyers in big law? Why should these conservative lawyers in big law have a right to express their conservative views at work without repercussions if that is not the direction the firm wants to go? David said it's fine for a pro-life center to not hire someone who had an abortion. Is it only religion that gets that grace? I think this is another can versus should. Well, and also let's be clear what we're talking about here. The argument about political discrimination in big law is not that big law, let's say if it has taken pro bono cases to assist detainees at Guantanamo Bay, which is a real life situation, that then a conservative can come in and sort of take a

pro bono case that's positionally opposite of a position that the firm has taken, right? That's not the argument here. Firms do have an ability to shape their pro bono practice and to also exclude what you might call positional conflicts. So one part of the firm arguing one thing, another part of the firm arguing another thing. That's not just an issue that comes up in the pro bono context. It comes up in the commercial context. That's why there's a whole notion of a term like positional conflict. You don't want to argue against your own position. That's not what we're talking about.

What we're talking about is somebody who comes to a law firm with conservative political credentials on their resume, and the job is not ideological. Okay, so you come from FedSoc, and you're wanting to be a bankruptcy lawyer. And the argument is, well, we don't want to work with a conservative, not because that conservative is going to be opposed to the position that the firm has taken in litigation or that the conservative is going to undermine the expressive association of the law school. It's really much more, we just don't want to work with conservatives. And that's a different thing, a very different thing from saying the expressive associational

purpose of this organization is one thing. And the person that they've hired is contradicting that expressive organization, or the person who wants to be hired is contradicting that, that's a different situation than what we're talking about at Big Law, which is the concern that in cases and job opportunities where ideology should not be a factor and should not be a factor in how you conduct your professional life, it has become a factor. And that's a different thing. Now, again, it's a should distinction because the law does not, outside of California, restrict employers from hiring people on the basis of their political or ideological affiliation. And so they have the ability to do it. The question is, should they do it? Not can they do it?

Yeah. Right. Like it's that it would be in the law firm's interest to have viewpoint diversity. It would benefit their clients. It would benefit the other lawyers at the law firm. Not that they must or that somehow it's even to the benefit of the conservative lawyers, actually. And also the fact that discrimination isn't unlawful doesn't make it moral. And so I'll give you another example. Thanks to the Hosanna Tabor case, federal non-discrimination law just flat out does not apply at all period end of discussion to ministry hiring decisions, right? That means the Americans with Disability Act. That means sex discrimination laws, race discrimination laws. That does not therefore mean that it is moral

for a religious institution to just go ahead and say, nobody in a wheelchair can be a minister, ahead and say, nobody in a wheelchair can be a minister, right? That would be terrible. That would be terrible. Unless you're hiring for basketball ministry. I mean, I don't know, but that would be terrible. And just because something is lawful does not mean that it's moral or that it's right. And so what we're talking about is discrimination that in some ways I think is really destructive and pernicious that in some ways, I think, is really destructive and pernicious in the body politic, even if it is legal. All right. Last thing.

Judge Duncan on our podcast suggested that boycott would not be enough, or at least not interesting enough, that they should be thinking bigger. Law firms or the chief judges of the circuits or even the chief justice of the Supreme Court should send a letter to Stanford saying that they find this behavior unacceptable for future lawyers who they would be hiring as clerks or into their law firms. And so one question was amazing how the ostensibly pro free speech crowd suddenly fined with collective punishment and institutional censorship when it comes to chilling speech they don't like. What is your response to that, David? So I think that's a better point when you're talking about we will not hire law clerks from this school. That's a collective punishment issue. And that's one of the reasons why you and I both said we had real

discomfort with that idea, because regardless of your participation or your complicity with the actual protest that, you know, violated the rights of speakers, that you are not going to be considered for a job. I got a problem with that. I do not like that. But the chief judges of every circuit or the chief justice of the Supreme Court or all nine justices of the Supreme Court, however many combos, whatever you want to do, expressing to Stanford Law School that that was unacceptable content is,

you know what, there's a term for that. It's speech. Oh, that's counter speech. That is counter speech. And even though it's coming from the government, there is a government speech doctrine. Government officials are, as we have talked about it at length, government officials are permitted to express views. In fact, in the elected branches of government, one of the reasons why we elect people is

to express views. That, one of the reasons why we elect people is to express views. That's one of the reasons. It's sometimes considered almost to be like our ambassadors for our point of view in the public square in many ways. Now, when they get too carried away with that, that's when we get the Jonah formulation of the parliament of pundits instead of an actual Congress that passes laws. But government

officials have point of views and are allowed to speak their point of view. And so that's all, when I heard Judge Duncan say that, I did not hear him say that all the chief judges of the circuit will issue a statement that no judges will hire law clerks. They were saying this was unacceptable conduct, and that's their view, which they are entitled to speak, and it should be considered carefully if they chose to speak in that way. All right, David, it's Rahimi time. Oh, gosh. No doubt there will be more updates. By the way, Judge Ho and Judge Branch, who initiated that Yale boycott, have published an op-ed in National Review discussing the Stanford event. And while

they don't say it explicitly, it ends by saying, and this is why we are not hiring law clerks from these institutions. So it does seem like they are continuing their policy, though the word boycott wasn't used and there wasn't any explicit rule laid down about how this would go moving forward. I think the ball is still very much in Stanford's court. And I think that the protest of the dean is actually good, A, in the sense that it all followed Stanford's policies, as far as I can tell, but also that it actually is going to make Stanford pick sides here. And I think the students probably made a strategic mistake because if Stanford didn't have to pick sides, I think they were going to lean into not doing anything further, which is a win for the

students who disrupted the event and for the administrators who fill in the blank of what you think the administrators did. But if the students are going to force Stanford to decide whether they still have a no hecklers veto disrupting events policy or not. I think that's a mistake because I don't see how Stanford can side with a yes. From now on, whoever has the majority in the room and the loudest voices get to decide who speaks at this school. That isn't a policy you can have moving forward, that it's up to the majority what we allow to be said on this campus. Yeah, you can't. I mean, you just can't do that. Stanford's in an interesting position because it is quite obvious that the great weight

of the understanding of the legal profession, of judges, of the law is not with their students. And that at the same time, their students are utter, a significant percentage of their students are utterly, still utterly convinced that they're in the right and creates a really difficult dynamic on campus. And I'm gonna go back to this. I'm gonna beat a dead horse for a minute, Sarah.

These law students at many of these schools are not random sample representatives of people who get 99th percentile on the LSAT. Okay. This is not what a even distribution of 98 to 99 percentile LSAT students looks like in the United States of America. I'm sorry.

And admissions offices, I have seen how the sausage is made. Admissions offices are constructing classes that are comprised disproportionately of far left activist type students. It's just, I'm sorry, that's what's happening here. And so nobody should be surprised at the ideological disposition and composition of these classes. And then what this group think does to them, a disservice, you are doing a disservice to your institution when you are constructing far left classes.

And look, again, I've seen how the sausage is made. I mean, I have been in rooms where people were like, we're reluctant to hire, this is an actual exchange that occurred. A person, there was a black applicant who wanted to work for an investment banking firm, Goldman Sachs. Another black applicant wanted to work for the NAACP Legal Defense Fund. The admissions committee actually preferred the black applicant who wanted to work for the NAACP Legal Defense Fund because they were, quote, more committed to diversity than the black applicant who wanted to work at Goldman Sachs. And by the way, this was an all-white committee

making this determination. I strongly objected to that formulation, strongly objected. And as if, you know, it's up to a committee to say, well, like, here's what the interests of black students should be, or here's what the career goals of black students should be. I found that really objectionable, to be honest. career aspirations all get into this mix because the reality is that every top law school in America has more 99 percentile LSAT applicants than they have slots. And so they're picking and choosing. And the ideological composition of these law school classes is not the product of random distribution. I'm sorry to say. All right. So last week, the Fifth Circuit did something not unheard of, but nevertheless unusual. It released an updated version of its opinion in U.S. versus Rahimi. That is the decision that held that people cannot be disarmed based on a civil restraining order specifically related to domestic violence

under 922G, which is a federal statute that also allows you to disarm felons, for instance, and other things. But this one specific part of 922G is about civil restraining orders relating to domestic violence, and they struck it down. You and I had a nice long chat about this, and the parts of that perhaps the decision was correct in the sense that the Fifth Circuit is bound by the U.S. Supreme Court's decision in Bruin and the history and tradition test, but that the history and tradition test had so many problems and that it was sort of impossible to apply in any sort of rigorous, fair sense. Or that a history and tradition test might work, but that this history and tradition test highlighted some of its flaws. Is that a fair

summary? Yes. That's a fair summary. Yes. So the majority opinion didn't really change. And that's what really did the Bruin history and tradition test. So in that sense, I think our criticisms of Bruin and the history and tradition test do not need to be revisited. However, Judge Ho, friend of the pod, His concurrence was substantially updated and elongated. And as I've been hinting to you, David, there's two parts, well, the majority of it, but there's two new parts that I found pretty persuasive and I want to run them by you. Okay. Number one, there was this gut instinct I had that it's one thing to say, hey, Congress, do your job.

And it's another thing to say, nope, there is no way you can disarm someone who has committed domestic violence without a constitutional amendment. And there was something just like offensive about that outcome to my brain. And he has a really good answer to it. You think? I do. Okay. I do.

All right. The right to keep and bear arms has controversial public safety implications, but it's hardly the only constitutional right that does. To the contrary, all of the constitutional provisions that impose restrictions on law enforcement on the prosecution of crimes fall into the same category. Take, for example, the exclusionary rule. Since its inception, the rule has been sharply criticized for overprotecting the accused and releasing dangerous criminals into our neighborhoods. This is the idea that if a police officer violates your rights, for instance, to have a warrant to

search your home or your person, that instead of simply you getting damages from that police officer, we exclude the evidence entirely. So you're a murderer and we found the bloody knife in your house, but the police officer just strolled in and took it instead of getting a warrant. We let that murderer go free if there's no additional evidence that could be used to convict him. Similar with, as now I'm back to reading, the same can be said about Miranda v. Arizona. The Supreme Court has repeatedly referred to the Miranda warnings as prophylactic and not themselves rights protected by the Constitution. What's more, in some unknown number of cases, the court's rule will return a killer or a rapist or other criminal on the streets and to the environment which produced him to repeat his crime whenever

it pleases him. Okay, that was a bit graphic. So I take that point pretty seriously, David, which is you may not like it, but if that's the rule, the Second Amendment is not a second class amendment, if you will. And that, for instance, set aside the history and tradition test and everything else for a moment, that if the Second Amendment says that people who have committed domestic violence get to keep their guns, that that's it, man. And I don't think I was really, obviously like saying that out loud, like, duh, but I don't think I was taking that quite seriously enough. And I thought that the new opinion was written in a way that reached me with that message better. Okay. I agree that the new opinion from Judge Ho, and again, front of the pod,

I agree that the new opinion from Judge Ho, and again, front of the pod, is better. Okay. And I think he's exactly right when he's talking about that when you are talking about individual rights, the protection of the individual right can sometimes come at the expense of public safety. And by singling out these rights in the Bill of Rights, by elevating them to the extent that we do, what we're saying is that at the constitutional structural level, we are putting our thumb on the scales in favor of free speech. We're putting our thumb on the scales in favor of due process. We're putting our thumb on the scales in favor or against unreasonable searches and seizures. And we can't

ignore where the thumb is on the scales. Same with the Second Amendment, which is exactly why I have the view that the Second Amendment, the legal test applied to the Second Amendment should be strict scrutiny, not intermediate scrutiny. So again, if you're going back to these levels of scrutiny, rational basis review tends to mean the state wins. scrutiny, rational basis review tends to mean the state wins. Strict scrutiny tends to mean the citizen wins. Intermediate review means the judge wins. It's whatever the judge really likes to do.

And so that's why I'm in favor of strict scrutiny when it comes to Second Amendment cases. But this gets to the second point that I found persuasive. And I want to get to that because I want you to get back to the strict scrutiny and apply it to this idea. So the second point that he enlarged here and that is becoming more persuasive to me is that distinction between a civil order and a criminal finding. And that these are civil orders that they're saying you can't disarm someone based on. And that these civil orders are ripe for abuse, that they're often used in divorce proceedings, weaponized in divorce proceedings. That's under the abuse bucket. Two, that the standards

are so low in part the way that they're written, right? They're civil, but also in part because there's all downside for the judge not to issue one and no upside for them to decline it. Like, so I'm not sure you actually did the thing you're accused of, but like, why would I not give this person a civil restraining order at this point? Um, so they get issued like candy and third bucket. Um, for instance, there's like many divorce proceedings, there's mutual restraining orders. So now we're just disarming everyone left and right if you're getting divorced. And the reason I mentioned this, David, in that civil context being really, I think, under-emphasized by us in our initial conversation, and it doesn't have a lot to do

with the history and tradition test, by the way. This is now on just the merits of the underlying point, is because I think it goes to that strict scrutiny analysis. So get rid of the history and tradition test and now apply strict scrutiny to a civil order where the bar is both intentionally set much lower than a criminal bar, but then it's even lower in practice because of the way in which it often comes up. Not always, which I think is the bummer of it. Many people seek civil restraining orders in pretty dire situations, but they are used a lot in divorce proceedings. Yes. Okay. So I think the civil criminal distinction is a little bit bogus and I'll explain why. I think the real issue is what processes do. Okay. That's the real issue.

What's the process? So I could definitely see saying about civil restraining orders, not enough due process. Now, interestingly, that shouldn't be an issue in this case because it was an agreed order. He entered into an agreed restraining order like he agreed to it. But setting that aside, the issue to me is what processes do, because the weakness to me in Judge Ho's argument was he was saying, well, I'm not going to really. I'm not going to to contest the idea that you can seize a gun in connection with an arrest. Or you pre-trial detention. It's not just pre-trial detention. You don't have access to your guns.

You don't have liberty. You're not even out on the streets. But what's the standard for arrest? Probable cause. The actual legal standard for these, the, the actual due process before you can deprive someone of their weapons, at least for a period of time is very low in the criminal context. And he says, that's fine. That's fine.

Probable cause that is fine. Um, pretrial detention is the standard, again, for pretrial detention, especially when it comes to the actual underlying merits of the charge against you. Not very high at all. Not very high at all. And so that's why I think the civil criminal line here is a little bit bogus. The real line is what is the process? That's the real consideration because the probable cause determination sufficient for an arrest that then can separate

you from your weapons is low. Sometimes lower. It's certainly lower than a preponderance of the evidence standard in many civil proceedings that you encounter. And so my issue is not, is a civil or criminal. My issue is what processes do. And the way I'm reading Judge Ho is you could have a civil proceeding with more due process than an arrest with a lesser intrusion on your liberty than an arrest. And yet that is not going to be acceptable under a text history and tradition context because it's civil and not criminal. Because one of the things he kept going back to with some of these common law statutes back,

or common law, that's a oxymoron, common law principles and also statutes back in the day involving arresting people for being sort of going armed offensively into the public. Again, that's all arrest. We're not even talking about an arrest here. So the question for me is what processes do, not whether it's civil or criminal.

I find that incredibly persuasive. And I think there's a nice little middle ground here, which is, okay, so you can suspend someone's Second Amendment rights if there's probable cause to believe that they have engaged in domestic violence. So like a slight change to 922G is all you need. And so then it is thrown back to Congress and you don't need an amendment. Right. And probable cause would probably be a lower standard actually actually, than many states. Yeah, I guess, so I do disagree with you slightly that there's no distinction between criminal and civil

except for the process due. I don't agree with that, but I take your point, and I take your point. But regardless of whether the standard looks different, the criminal process comes with a lot of other stuff that the civil process doesn't come with. And so, yes, I suppose if we included all of the process due

in the criminal context over into that civil restraining order process, fine. But like, that's not the case either. Right. Well, yeah. But my point is some of these civil processes are actually more rigorous than the process for arresting a person. Yeah. But like you don't have all of your, you know, the right to counsel, the right to remain silent. Like that's not all due in a civil context. Okay. Let's, but let's put a pin in that. I'm excited to see what our commenters say. As I said, I'm not maybe all the way on team ho, but I'm moving that direction. I'm, I'm traveling. I'm on a journey. Uh, David's pretty persuasive, but, uh, all right, David, will you give us the short 30,000 foot version of what is happening at

the University of Pennsylvania with Amy Wax? Because my impression is, well, she's saying some stuff, man. Oh, man. Okay. So Amy Wax is a tenured professor at University of Pennsylvania Law School, a private law school. A lot of people think when they hear University of Pennsylvania, they think it's public. Nope. It's a private law school. About every 10 years, I have to be reminded of that, by the way. It takes about 10 years for me to remember and forget. Yeah, you think there's UPenn and Penn State and they're like rival public, no, they're not. And so UPenn, private law school, and the university is, or the law school is making a move towards formally and seriously sanctioning her, um, including potentially firing her. And the question is,

is, has she engaged in inflammatory, derogatory, racially charged comments that are covered by academic freedom principles, or have her racially charged inflammatory comments actually constituted something outside of academic freedom? For example, racial harassment, on-the-job racial harassment. racial harassment, on-the-job racial harassment. And notice that I did not say that it is really in dispute as to whether or not her comments were inflammatory and racially charged. So nothing I'm going to say here is going to be a defense of Amy Wax's comments. We are going to put the complaint against her in the show notes. She has said, I have actually written on more than one occasion

against the comments that Amy Wax made. I think that Amy Wax is extraordinarily discriminatory in many of her comments about black students, about people from non-white, non-European backgrounds. It's, it's a lot of, it's really, really beyond the pale, but here's what I want to say. And we don't have to talk about this for very long, Sarah, but there's a big controversy in academic circles now as to whether or not Amy Wax's inflammatory speech was covered by academic freedom and principles of academic freedom and not.

And here's how I would parse it. And I already kind of teased it out a bit. If she says racially charged inflammatory statements that would otherwise be covered by First Amendment principles, then that would otherwise be protected by the First Amendment, then in my view, that's where academic freedom should attach. If you are engaging in constitutionally protected speech, even if you're a private organization,

unless the private organization has given you clear guidelines that are more restrictive than the First Amendment, I'm much more sympathetic to Wax's case, with this important exception, Sarah. Neither the First Amendment nor academic freedom grant you license to ignore federal civil rights laws. Okay, so if your conduct would constitute racial harassment within the meaning of Title VI or Title VII, you don't have an academic freedom privilege to do that. And that's how I would analyze the complaint. How much of this is actually about on-the-job harassment of Black students, Hispanic students, et cetera, versus how much is I said something about immigration

or race that would be unquestionably constitutionally protected but is really offensive. That's how I break it up. So, one of the things that she is accused of saying is that something to the effect of black people are obviously less smart

than white people. So, to put that in your context, if she said academic research shows black people are less smart than white people, that's protected. If she says to a specific student, you are clearly less smart than my white students because of your race, that would be a clear example of not protected speech.

Right. And then the question is what she exactly said in the context in which she said it and where it fits into that spectrum. This is going to be weird because this is not going to be a clear cut case then. No, it is not. And that it's not a clear cut case, you know, so think of it like this. There's a difference between... I think of harassment principles as very much related to time, place, and manner type considerations. Okay. So let's take an example where you have, again, we'll go with a super, super hot button issue and we'll talk about like trans rights issues. If somebody is off the workplace saying, you know, look, I don't think a man can be pregnant. That is not harassment on the basis of gender identity.

they're teaching a Sunday school class or they're tweeting about, you know, a tweeting about a city ordinance that's being passed or something like that. But then if somebody walks into a, an office where a trans, you know, a trans worker is working and starts berating them about issues about trans rights, when it's not welcome. They didn't invite this kind of conversation, but they're berating them about their gender identity. That's a different thing. Why is that a different thing? Well, their time, place, and manner restrictions are involved. Do you have a First Amendment protected ability to walk into a person's office and berate them about their gender identity at work? Well, the answer to that is pretty clearly no. Um,

and so, you know, that's the kind of distinction. If we want to take it out of the identity group politics mold, think of it like this. Imagine in the run-up to the Iraq war, someone is yelling no blood for oil on the university quad at 3 p.m. versus walking into a room of a dorm room of a kid who's trying to sleep, whose dad's about to be deployed, shouting no blood for oil and keeping them awake, preventing them from studying. Same exact words, same exact words, completely different context mean there's a different, that means there's a different outcome. I do think the complaint against her that's publicly out there now is a bit, they've muddled it a little bit, right? So the beginning starts with, let me just read two of the comments that it starts with. These are both public comments made by Wax.

America would be better off with fewer Asians and less Asian immigrants. Going on Tucker Carlson, Blacks and other non-Western groups harbor resentment, shame, and envy against Western people for their outsized achievements and contributions, even though on some level their country is an asshole. Those seem to fall pretty squarely within your protected speech category. Terrible, horrible, dreadful, but yes. However, later on in the complaint, it walks through things she said to specific students. One student asked her about whether she agreed with a panelist that Black people are inherently

inferior to white people. And she told this specific black student, you can have two plants that grow under the same conditions and one will just grow higher than the other. Telling another black student that she had only become a double Ivy because of affirmative action. Telling another black student that black students don't perform as well as white students because they are less well-prepared and they are less well-prepared because of affirmative action. Telling another, if black students really and sincerely wanted to be equal, they would make a lot of changes in their own conduct and communities. So that one, that's evidence of Title VI hostile environment harassment. And look, if I, gosh, law schools need better lawyers. If I was-

You shouldn't have included the public comments. They were relevant to this analysis and the only point to include them was to make you dislike Amy Wax, which like, you didn't need to. These comments are plenty. If I was advising the law school, I would say what you do is you make a hostile environment.

If you believe in good faith that these comments constitute hostile environment racial harassment, you say you have violated our policy against hostile environment racial harassment on campus. And then we've got a real conversation about whether or not this kind of on-the-job denigration of students of color is protected by academic freedom. And that, to me, no, academic freedom does not exempt you from the operation of civil rights laws properly applied. So that's, to me, that's the key question. The whole next section goes back to her public comments. And it says, in addition to the statements Wax made directly to students or in class, her public commentary espousing derogatory and hateful stereotypes has led students to reasonably conclude that she is unable to evaluate them fairly based on their individualized

merits. Well, that's a real slippery slope. To your point about, like, I don't think that men can have children or whatever, stating that publicly, if a student says, I don't believe that I can be judged on my individual merit because this person discriminates against trans individuals, like that seems to fit this analogy pretty well. And that's obviously protected. And these examples, like, so let me just read the first one that she said publicly, stating, comma, based on misleading citation of other sources, comma,

that women on average are less knowledgeable than men and less intellectual than men. And there is some evidence for the proposition that men and women differ in cognitive ability. I got to tell you, especially that last part, there's some evidence for the proposition that men and women differ in cognitive ability. Yep. What? How?

A public statement, and you're saying that created a hostile environment. No. You should probably grapple with some of that because there is evidence of that. And there's like lots of it. Differing in cognitive ability also does not imply negative, by the way.

I get that maybe the rest of her comments did. Men and women do differ in cognitive ability. And let, well, let's also hit this concept in a way that a lot of progressive critics, in a way that a lot of progressive critics of in a in a place where a lot of progressive critics of amy wax live and again i'm a critic of amy wax just like i know i'm waiting for that last thing i just said to be clipped and taken away out of contact oh yeah yeah right yeah you're about to go viral but i'm the most hardcore feminist ever hardcore feminists ever. And that's going to be my legacy. Great. But how many law professors have we read that say things like the American right is full of fascists, that the Federalist Society is a fascist organization? Are you kidding me?

There's all kinds of law professors on the left who have said sweeping, negative, derogatory things about people, evangelicals, people on the right, you name it. And the idea then that therefore you cannot trust them to grade people of different races or, I mean, of different ideologies fairly or grade Christians fairly. Is that a slippery slope you really want to go down? Especially when I would, and someone please correct me if I'm wrong, Penn has blind grading. You know, when I was at law school, I still remember my number in law school that I filled in. I was not a name.

I was a number. It was blind grading. 303-8559-40. It was me. That's really weird. You remember that? I know. I know. I wrote it so many times. And that idea that in a blind grading environment, somebody that you can presume racial targeting in your evaluations, again, not convinced by that. And not convinced, and that's not the road you want to go down. Yeah.

So look, they start with her very public statements. I think those are just obviously protected. They move on to her statements to students. I think any single one of those, and certainly those taken together, meet individualized discrimination and meet the hostile standard. But then they go on to more public statements

that they argue created a hostile environment when she was in the classroom. That I think is just a super gray area because I get it why it might, but I also think that that is a Trojan horse to basically get rid of academic freedom entirely. If anything, a professor says about any topic of controversy that could make a student feel bad now is is a platform for evoking their tenure or their job. Yeah, I think that that then just ends academic freedom. Well, cool.

Good luck, Amy Wax. I think that's going to be an uphill battle for you. Yes. All right. That concludes a long episode, but not our longest now, episode of Advisory Opinions. We will continue updating you

on all things fun, legal, and look forward to hearing from all of you federal district judges out there hitting your March 31st deadline on what you think the pluses and minuses are. Any Stanford students who want to reach out, we've heard from a few of you, and they've been really interesting emails, so thank you for taking the time to do that. Uh, thoughts on civil versus criminal orders. Rahimi, is anyone coming with me? And I mean, we don't really need to hear from you on Amy Wax. I think that one's, I think that one's going to be what it's going to be, David. I agree with you. And with that, we'll talk to you next week.