Advisory Opinions - Time, Place and Manner

Episode Date: September 3, 2020

There’s a bit of post-2016 election PTSD among American political strategists, where any slight uptick in Trump’s polling numbers is perceived as an emergency situation for the Biden campaign. But despite the almost constant news cycle turbulence in American politics that would have caused big swings in a normal presidential election, the polls have remained relatively stable over the past few months. Biden remains in a clear and comfortable lead over Trump on practically every policy issue except for the economy. Why? According to Sarah, “It’s because of the referendum effect, and it’s because of the wild partisanship moment we’re in right now.” How stable are these divisions that have emerged? Hyper-partisanship isn’t going anywhere as we approach the presidential election, and as David reminds us in today’s episode, “these identities are cementing at the state level as well.” After going deep into the weeds on the latest presidential polls, our podcast hosts delve into the temperamental differences between city life and suburbia, the president’s memorandum on combating lawlessness in America’s cities, and a primer on time, place, and manner restrictions on the First Amendment. Show Notes: -The Sweep: Midweek Mop-Up with Dave Kochel, Fox New polls in Arizona, North Carolina and Wisconsin, CNN poll, Suffolk University/USA Today poll. -David’s forthcoming book Divided We Fall: America's Secession Threat and How to Restore Our Nation and Trump’s memorandum on “Combating Lawlessness In America’s Cities,” a very important city council meeting speech about boneless chicken wings, and a documentary on the dreaded man cold. Learn more about your ad choices. Visit megaphone.fm/adchoices

Your teen requested a ride, but this time, not from you. It's through their Uber Teen account. It's an Uber account that allows your teen to request a ride under your supervision with live trip tracking and highly rated drivers. Add your teen to your Uber account today. Think about something you're good at. Now think about how you got there. Chances are you had someone to help you get started.

If you're thinking about starting to invest, Questrade's award-winning support team is here to help you learn how to become a better investor. From placing your first trade to setting up customized stock alerts, we're always by your side. Just a few of the reasons why we are Canada's number one rated online broker by MoneySense. Get started today at Questrade.com. You ready? I was born ready. Welcome to the Advisory Opinions Podcast.

This is a more human David French with Sarah Isger. human because faithful advisory opinions listeners may have noticed that on Tuesday when we recorded our most recent episode, I was slightly punch drunk, I think, after driving overnight 23 hours in a 40-foot RV, which I'd never driven before, Sarah. I'd never driven something that big. So I drove 10 hours in the thing. And I was literally still dizzy. Do you know what it's like? I just want to point out, David, that you were punch drunk on our podcast after too much hiking and driving with your buddies.

And I was on our podcast after giving birth. Well, okay. I think I was in better shape than you were. I think you were too. I think you were too. I mean, that's sad, Sarah. I was sitting there literally, because we have this Zoom. The way we do it is just to let you know how this very delicious podcast sausage is made. We have a Zencaster where we record online, but we are looking at each other on Zoom so that we, you know, you can have a more natural conversation than you have like that when it's like phone only or, you know, audio only.

And as I was watching Sarah and Kyle Mann, who was our guest last time on Zoom, I felt like the screen was moving. I thought something was wrong with me. And something was wrong with me. Something was wrong with you. Yes. Yeah. So- Glad to have you back. I'll go ahead and concede you're more of a trooper. Thank you.

On immediate podcasting after physical adversity. Thank you. I appreciate that. But I'm still begging for a tiny bit of sympathy. It's not coming, but you know what? This is a good lead-in to our last question of the pod. Yes, it is. So stay tuned for the last question, but we've got some really interesting stuff to talk about today so we're going to talk about um post-convention bounce if any uh polling response uh polling response to continued violence in cities if any we're going to turn to our political expert sarah isger author of the must read monday sweep email that you should subscribe to go to the dispatch.com to subscribe to the sweep and the must read usually Friday, right? Oh, it's whatever day, whatever day mop up newsletter. It's coming out on Thursday, like this week rather. And last week

came out on a Friday week before on a Wednesday, whatever, but subscribe because, uh, like this week, rather. And last week came out on a Friday, week before on a Wednesday, whatever. But subscribe because they're very, they're both, the sweep and the mop-up are extremely in-depth, well-informed analyses of what is happening in this presidential election. And we're not past Labor Day yet, but we are getting into crunch time. And it was really interesting to me. I mean, it was really interesting to me. I was only able to tune into Twitter a little bit

when I was on vacation. But there seemed to be, just when I was dipping my toes into it, a colossal freakout amongst people who are opposing Donald Trump, that something fundamentally was changing in the race as a result of the one-two punch of the RNC convention and the violence in Kenosha, Wisconsin. And we then yesterday had this pile of polls that just dumped on top of us. Yep. So Sarah, can you make sense of this for us? Yeah. So the answer is, I think that there's a lot of 2016 PTSD going on. And so any

shift in the polls is met with this freak out of that's it. We're losing it. We're losing it. The patient is going, you know, get the defibrillator out. Um, and that's, you know, things were always going to tighten come labor day. That is how things work. Now, you can ask why. So there's like the standard, well, people start paying attention and they start coming home as they really imagine voting

instead of just getting frustrated with their own team and saying they're going to vote for someone else. There's also some more cynical reasons, perhaps, which is the media has an incentive to say that the race is close always um because otherwise why would you tune in and uh you know pollsters also tend to have an incentive to show the race being closer because you don't want to be wrong and so at least if you said it was close it it's better than being wrong. And especially

after 2016, the national polls, of course, were correct in 2016. The state polls, there's plenty you can read about how they have not really fixed all the problems from 2016. That being said, let's start with some state polls. Yeah. So I'm going to talk mostly about three of the the big hitter polls fox cnn and the usa today suffolk poll because those are like our you know pretty gold standard polls and they all came out in the last 48 hours fox did some state polling they did north carolina wisconsin and arizona uh first of all biden wisconsin leading by eight points biden north carolina leading by four points and biden arizona leading by nine points that one's actually kind of crazy because arizona is a pretty traditionally republican state and but biden's leading there by the most of the battleground states.

But there's reason to think that's true and that actually it's being driven both by the Senate race and the presidential, which is a little, you know, tail wagging the dog there. Right. But Arizona has just slipped further and further away from Republicans. And every poll is bearing that out at this point. McSally's in big, big trouble. I don't see how she can get that back. That being said, the Republican Senate arm just invested a lot of

money in the race. So maybe they have some internal polling that shows that it's within reach. That being said, when you have an incumbent in trouble, you're supposed to go save your incumbent no matter how pointless it is. So read something into it, but maybe not a ton. What else is interesting about the Fox poll was we had not, we'd seen like who's better able to handle crime or who's better on racial issues, both of which to me are misleading in the opposite directions. That's not really how I think I think about what's going on in the country. And I don't think it's how a lot of people think about it. They don't think about it as crime. It's riots. That's not crime. And they don't think about it as just racial justice because that

almost has a connotation in and of itself as well. So they asked better handle policing and criminal justice. It's not, that's not perfect either, but at least it's interesting to me and it's a different way of trying to get to that same issue. Yeah, Biden is, you know, outside the margin of error on that against Trump. So in Arizona, five points and Wisconsin, five points, North Carolina within the margin, but even so. So that's interesting. So that means basically at this point, Biden leads Trump on every policy issue that there is minus one, David, you know what it is. That's right. It's the economy. But so let's move from the Fox poll over to CNN, which, you know, they're at least trying to say that their poll shows that the

convention made some difference. I'm not sure that I buy that it's the convention because so little change. But according to them, the amount by which trump is handling the convention has tightened so that was like roughly 10 points before the convention and it's now about even in cnn so that's a big deal if trump lost altitude on handling the economy i think it's hard to say that that's convention related either convention because that wasn't really a huge takeaway from either convention on handling the economy. I think it's hard to say that that's convention-related, either convention, because that wasn't really a huge takeaway from either convention.

So I think that's more about the economy and people's concerns about that. In general, the CNN poll finds the same thing that the polls right after we're finding that morning consult poll

that we've talked about a little, which is Biden's favorability went up, which I think I've said was, I think absolutely the goal of the DNC convention and that Trump's favorability did nothing, which I've said is just fine because I don't think that was the goal of the RNC convention. Yeah. And that the numbers by and large haven't really moved to the extent they're tightening. They're tightening the way that we would normally see them tighten at this point. So Sarah, can I be, um, let, let me, let me, uh, go and, and rely on some historical stuff from my, I don't, I tend not to do the real clear politics average. Um, I tend to follow the five 38 average. Same. Although, there's still moments where I go to Real Clear when I... I don't know how to describe it.

Like basically when I just want to see a really big picture, I'll go to Real Clear. And when I want to get more into the weeds about the individual polls and where they are stacking up and how they're weighting them, then I'm going to go to 538. Yeah. Yeah, I like 538 because it's got cooler graphics. No, there are other reasons than just... There are reasons other than just eye candy, but it does have cool graphics. They grade their polls and then they weight the average based on the grade of the polls, which is great if you trust their grade,

which for the most part I do. But sometimes you just want to see all the polls get average with no waiting. And that's where RealClear is going to be your main source. Exactly, exactly. But that's sort of beside the point. The main point is that

what's fascinating to me about the race, for all of the news cycle drama, for all of the really dramatic events that have occurred in the United States in 2020, this is a really stable polling race. It's remarkable. So Biden wraps up the nomination in, you know, by late March, it's all sunk in that Biden's the guy. late March, it's all sunk in that Biden's the guy. And so, you know, by the end of March and the beginning of April, it's a six-point race. Then coronavirus hits, and there's the very short rally around the flag effect that Trump had. Remember when his approval rating spiked just

a bit? The race actually narrowed to 3.4. So that's just a couple of, on the average, for one day. One day it was 3.4. Then what does it do? It expands out to six, six, six, five, six, five, late high fives, low sixes, high fives, low sixes. And then George Floyd, the George Floyd killing happens and the race pops open another couple of points where it peaks at about like a 9.6 advantage for Biden. And where is it right now? It's at 7.4. And it feels to me, you know, there's this really interesting thing that we've seen in

the last few races, and I'd really love to get your thoughts on this, Sarah. We've seen high drama, high stability races. So you've had Trump, once he got that polling lead in 2016, there was a lot of drama between him securing that polling lead and getting the nomination, but he just kept plowing through like a battleship. You had the high drama of the Hillary-Bernie Sanders race, but she just plowed through. You had all of the questions about Joe Biden and whether or not he could hold on to his lead, but by golly, not only did he hold on to his lead, he won his primary going away. I just wonder if what we have here is high drama, this paradox of high drama plus high stability.

Yeah, so this is where the USA Today poll becomes really interesting because they have really dug into why you're supporting who you're supporting. And this will come as zero surprise to you, David. But among the president's supporters, 83% say are voting for him. Just 11% are voting against his opponent. And among Biden supporters, 59% say they are voting for him compared to 33% who say they are voting against his opponent. So in a referendum election of a known quantity, you would not expect to see a ton of movement at all. You'd expect that to be really, really stable. And then these little blips that you're seeing are from huge international

national events. And all you're getting are these blips because it is this referendum election. You know, I was having a conversation with someone yesterday about whether we would ever see another 1984 election where there's an actual blowout and uh you know whether the country itself could ever do that and at least in the foreseeable future the answer is no yeah because we're also seeing enormous stability across these top tier senate races um in in the midweek mop-up that out now. I'm talking to Dave Kochel, who's doing the Joni Ernst race and does a lot of Senate and congressional races across the country. And he remarked on how stable the races have been despite all this turbulence that in a normal

cycle would have caused big swings. and it's just not happening. And it's because of the referendum effect and because of the wild partisanship moment that we're in right now. Right, right. Yeah, to me, that's a really fascinating question, and it's something that I looked at for my book a lot. Because, yeah. So, one of the things I looked at is how stable were these divisions that have emerged? Because we came out of, it wasn't just Reagan in 84. I mean, you had seven in 1972, Nixon, 49 states. 76 was really close. 80 was not a big gap. 84 was gigantic. 88 was still a pretty big gap. And then all of a sudden from 2000, for almost two decades now,

you can really say, hey, here's a red America and within a few states, nail it. Just nail it. And here's the blue America and within a few states, just nail it. And what I found really interesting, Sarah, is going beyond the national political picture and looking at the states. What was fascinating to are trifecta states. In other words, the House, the Senate, the State House, the State Senate, and the governor are all of the same party. I believe there's only one state, one state in the union that has a divided legislature. One, Minnesota. one minnesota um so this is happening at sort of like not just the national level these identities are cementing at the state level as well and i think it's one reason for the stability that you

see i mean tennessee in my since i moved here tennessee has gone from divided government to super majority gop and there has there is no prospect of that changing. There's no prospect of that changing. And so, yeah, I mean, I think the state-level data would indicate that there is an identity seeping into these states that's very different from even the reality 20 years ago. Now, Texas and Georgia are interesting counterexamples.

And Arizona. And Arizona, potentially. I think Arizona might be a one-off, but we'll see. But Texas and Georgia are not one-offs. That is a trend that has continued. And, you know, as a Texan, I will tell you that the, I don't know, what Texas Republicans will tell you is it's all these Californians moving into our state

and ruining it, which is of course overstated to the extreme. But there is something about Texas and Georgia as their economies have been doing really well. It has changed perhaps who lives in the state and who's coming into the state and how they're voting as it becomes more, for instance, like the urban cities have grown much, much bigger. Texas now has, I don't know, how many of the top 25 of the top 20 cities in the country or something. Well, um, well, and here, well, here's a question to ask you about Texas as a Texan, a Texan exiled to Northern Virginia. That's right. Um, the suburbs, the suburbs are huge, like actually huge. Like you can drive for far more than an hour in Houston and not have crossed the entire city.

It just seems to me, and this is, I love doing this. I love being the, hey, I'm the guy who watches a lot of news talking to the expert on this in dealing with some of these issues. But here's what it seems to me. I think there is a culture of suburban life, a sort of a demeanor, a temperament, a culture that is incompatible in some ways with some of the cultural developments in the GOP, the temperamental developments in the GOP, where you feel out of step. you feel out of step even if you know if you're going to go down and look at well you know maybe a republican party platform in the state and you'd agree with a lot of it there is a the the suburbs are just a less combative angry place than a lot of the the sort of the gop culture. And elite progressive culture has not the super wokes, not the super woke world, but elite progressive culture has a sort of temperament that is more in line with suburban

life. Does that sound to you to be completely off base? I think that's really interesting. And I think there's a certain aspirational aspect for those who are moving into the suburbs moving up the economic ladder to get into the suburbs um there's an aspirational aspect to what you're describing as let's call it progressive centerism yeah of college education and temperament, I think is, you know, an interesting way to describe it. But yeah, I think you might be onto something. A little hard to pinpoint. Let's do some law, David. Pardon?

Let's do some law. Do some law? I was just getting started on this whole suburban thing, Sarah. We have to read your book for that. I know. Well, no, I don't really deal with the suburbs that much, but I mean, let's just put it this way. Here's how I was going to say it. Your suburban parents are less interested in hating on Harvard than getting their kid into Harvard. That's a really good way to put it. That's a really good way to put it.

Yeah. Okay. So, all right. Now let's move on to law. So last night, we had a, was it last? Well, I think it was last night it blew up everywhere. The president issued a memorandum. Note, Sarah, I did not say executive order.

Remember how I almost mislabeled a couple of memoranda a week or so ago? I would argue that you did, but luckily your nifty sidekick here was there to correct you. Yes, and I appreciated it very much. But here's what it's called. I'm looking at it right now. Memorandum on Reviewing Funding to State and Local Government Recipients that are Permitting Anarchy, Violence, and Destruction in American Cities. This is a fascinating document. I'm really interested to hear your analysis of it because my position is it's hard to mount a comprehensive legal analysis of it because it doesn't cite law. It cites a policy, and the policy is this. This is, in essence, what it's saying. It's wanting the federal government

to review federal funding to state and local governments under very certain conditions. And so here's the operative part of this. To advance the policy set forth in Section 1 of this memorandum, which is essentially state and local governments have to maintain law and order, within 14 days of the date of this memorandum, the director of OMB shall issue guidance to the heads of executive departments and agencies to submit a report to the director of OMB detailing all federal funds provided to any target certain cities, Seattle, Portland, New York City, and Washington, D.C., or any components

or instrumentalities of the foregoing jurisdictions. And essentially what he's saying is he's wanting to analyze the policies of these jurisdictions to see if they are, in the federal government's view, sufficiently crafted to maintain law and order. And if they're not, then place in jeopardy the receipt of federal funds. Sarah, I'm eager to hear your thoughts. We have seen this before many, many times. It made for great headlines for the president and the wobbly Republicans and base Republicans he's trying to reach with that message. The actual effect of it? Potentially absolutely zero. And even in sort of the most charitable version, little. And even in sort of the most charitable version, little. Yeah. Yeah, that was my assessment too. I think the only part of this that has any real actual legal force would be the director directing the director of OMB to issue guidance and to begin an inquiry. But the actual withholding of the funds, no.

That is a no-go. That is a no-go. We've seen this administration try to withhold funds that fall under some... Congress appropriates the funds. There's a little bit of discretion in the executive. And they're like, ah, we're going to put on new, you know, you know, strings for these funds. And, uh, a, a lot of courts have just enjoyed the whole thing and found against the government. Right. But even short of that, it certainly is tied up in

litigation for years. Yeah. And there's a clause in here um sarah and which is a clause it's a common clause in memoranda a common clause in eos but it's a clause in here that basically says i'll i'll read the legal the actual language and then i'll read it in plain english so here's in section 4.2b, it says, This memorandum shall be implemented consistent with applicable law and subject to the availability of appropriations. That's what it says in legalese. Here's what it says in English. This memorandum shall have no force or effect.

Because it cannot be implemented consistent with applicable law. And I think you raise the point about an appropriation. I think it's really important to note that another word for appropriation is a law. So when Congress appropriates money, it is writing law. And the law is this money shall be spent for a specific purpose within a specific timeline. And that the conditions for the expense of this money or the use of this money are outlined in the appropriation itself or other applicable laws passed previously that encompass similar you know appropriations of this nature um and this is one area where i'm actually really on this podcast glad for my jag training sarah because you know what one thing we had to do as jag lawyers and all those who are listeners who are aspiring army lawyers one of the disciplines you have to become proficient in is called fiscal law. And fiscal law is a load of fun.

What is fiscal law, David? So fiscal law is you're advising a commander how to spend the money he's been allocated under congressional appropriation. I had no idea that fell to JAG. What in the world? Well, yeah. Who else is going to do it?

You know? I don't know. Infantry officers are busy, like, fighting wars. We're, you know, we're making sure Congress's appropriations are effectively spent. That's fascinating. Among many other things. I would urge you to watch, like, the TV show JAG. It's basically a documentary of my life in the Army.

Pass. Yeah, and it was not. So in other words, one of the things that commanders, whether you're commanding a battalion, whether you're commanding a brigade, whether you're commanding a division, whatever your formation that you're commanding, you have a certain amount of money that has to be spent according to the terms on which it's allocated. And so this is an obligation that accrues the military, it accrues to all of the departments

of the federal government. And there's even a criminal penalty if you don't, it's called the Anti-Deficiency Act that applies in certain circumstances. And Sarah's nodding- Do you know what else is fun about the Anti-Deficiency Act? applies in certain circumstances. Do you know what else is fun about the Anti-Deficiency Act? It also says that you can't accept

volunteer help in the government. It's why, yeah, it's why like if you haven't started your job yet, you can't show up to work in between. Yeah, you know what would be fun? Do you want to have a podcast that destroys our entire listenership

in one fell swoop? Is it on the Anti-Deficiency Act? Have an hour on the Anti-Deficiency Act. It's actually this like oddly, like it probably affects more people than it's, yeah, outsized influence of the Anti-Deficiency Act. And it's fun to say, but I mean, even for me, I think it's a bridge too far for this pod.

Oh, yeah, I think so. I think so. Although I will tell you, you know, fun experiences of a fiscal law discussion as a JAG officer include, I remember a four-hour meeting with a brigade deputy commander and three other lawyers over the extent to which the brigade commander's wife could assist in fundraising for various charities in Italy. Uh-huh. Yeah. But anyway, that's a long way of saying, Sarah, there are a lot of limits on the way in which a president can, on the ability of a president to withhold money that has been appropriated by Congress. is a much more, I interpreted this memoranda as much more, literally maybe a four-hour news cycle, raw meat to the base. Was it even four? Was it? Four seems generous. Yeah, maybe.

Yeah. I mean, it was three hours last night, and then this podcast is going to be about an hour. I'd like to take a moment and thank our sponsor, Bills.com. Being in debt is the worst. Credit cards, student loans, mortgages, doesn't matter what kind. Being in debt flat out sucks. Well, there's a way to defeat your debt, thanks to Bills.com. If you're losing sleep over maxed out credit cards or stressed out thinking about your mortgage payments or student loans, Bills.com can help you take back control of your life. The first step to lowering your monthly payments and becoming debt-free is to get a free debt assessment. It only takes a few minutes and could save you hundreds or even thousands of dollars each month.

From debt settlement to personal loan consolidation to student loan or mortgage refinancing, Bills.com has you covered. consolidation to student loan or mortgage refinancing, Bills.com has you covered. They're part of the Freedom Financial Network, which has been in business since 2002 and settled over $10 billion in debt. Take the first step to defeating your debt. Get your free debt assessment today. Go to Bills.com slash opinions. That's Bills.com slash opinions. Again, Bills.com slash opinions. Again, bills.com slash opinions. Well, you know what? Let's not give it any more oxygen then. Let's cut those four hours to three and a half

because I actually am very interested in our next topic, which is time, place, and manner restrictions on your First Amendment rights, David. Oh, good times. Good times. Do you know know how many speaking of hours do you know how many hours i have spent litigating time place and manner restrictions on first amendment rights i spent a great deal of time on it in my first amendment law class with charles freed and because i took that class with char Freed, he asked one day whether anyone, what everyone's Thanksgiving plans were basically one year.

And he needed a ride down to New York. And I happened to be driving to New Jersey for Thanksgiving that year. And so Charles Freed and I road tripped from Cambridge to New York together. road tripped from Cambridge to New York together. And his wife packed his little roast beef sandwiches in brown paper bags so that we didn't need to stop. And he told me that his favorite book was Uncle Tom's Cabin and that he listened to opera on the treadmill. Nice. You know how much... So can I tell you my Charles Freed story? Yeah. Okay. So it doesn't relate to law school because I never had him in law school. But about three or four months after the Supreme Court handed down, I think the last real loss for religious liberty that occurred in

the Supreme Court was a 2010 case called CLSV Martinez. And it's a really super niche case because it involved, I'm not even sure why the court took it, to be honest, but it involved a university or a law school that had said all of its student groups had to be open to all comers for membership and leadership. had to be open to all comers for membership and leadership. So that meant if you were a democratic group, you had to be open to have a Republican president. If you were a Christian student group,

you had to be open to having a Muslim president. And it was kind of designed, the intent of it was designed to prevent, for example, religious groups from saying we can't have LGBT leadership. But they also knew that if you're going to aim this at Christian student groups, you are going to lose. So what they did is they wanted to have a content and viewpoint neutral restriction that was applied on everybody. And there was a complicated procedural history here. But at one point in the case, the Christian Legal Society stipulated to the viewpoint neutrality of the actions of the law school. They entered into a stipulation.

That stipulation proved fatal, ultimately, was instrumental in being fatal to the case so aspiring lawyers be careful with your stipulations so fast forward three four months i'm debating the outcome of this case um yet at the law school at harvard law school and charles freed is the moderator and he begins the debate like this and he turns to me and he says who is the moderator. And he begins the debate like this. And he turns to me and he says, who is the idiot that agreed to that stipulation? Oh my. Yeah. So I'm sitting there and I know who did it.

And I also know they're not an idiot. I understood the legal strategy at the time, but that's quite a way to begin. That sort of puts you on your heels right at the beginning. But that's quite a way to begin. That sort of puts you on your heels right at the beginning. But from that point forward, Freed was an excellent moderator. But I had to defend the quote, idiot, who's not an idiot, who's an actual excellent litigator from that attack. So that's my Charles Freed. Less interesting than yours. And Charles Freed, for those

who are now very curious, was the Solicitor General under Reagan and is sort of, I don't know, of a different generation. He has that patrician accent that went away with Katharine Hepburn, you know? It's lovely. Yes, yes, exactly.

Exactly. Well, you know, that patrician accent that, when you watch old movies, it really is interesting how accents have changed. Yes. Well, it's why they say, by the way, that probably in, you know, before we had any audio recordings, but like looking back to Shakespeare and before and Canterbury Tales, that probably the English are the ones, the British are the ones who have changed their accent and that Americans are closer to the correct form of English. Well, that's fascinating. And so in all these old movies about the, you know, where everyone has a British accent because that makes it sound old, that that's actually not correct.

Oh, that's fascinating. They're using rhyming schemes to do it, which is kind of fun. That's why you use Canterbury Tales and stuff. Huh. Oh, that's fascinating they're using rhyming schemes to do it which is kind of fun that's why you use canterbury tales and stuff huh oh that's one that i feel with the shores of sota the droth of march hath perished to the rota and bothered every vein and swish liqueur of which vertu engendered is the floor keep going it's like how i can do pie out to a certain like an amount that no one wants you to continue, but also I could not continue. That was impressive. I was very impressed. So here's why we're going to talk about time, place, and manner restrictions. We got a really,

not one, but a couple of really good questions from listeners about restricting demonstrations in an atmosphere of urban unrest. We can, in fact, so for example, in Tennessee, the governor just signed a bill that has barred overnight protests in a certain part of the city of Nashville. There are, you know, curfews have been imposed in cities. When can a governor act to stifle all protest in the quest to restrict the ability of people to riot or the ability of protests to spiral into violence? It's a really interesting question, Sarah. How much flexibility do you have to limit uh demonstrations in an atmosphere of violence and the main way that you would do that are these what are called time place and

manner restrictions on speech um and so you know the and this is something that colleges do a lot that's how i litigated this they would say, we're not going to restrict speech on campus, but we're going to put it into a speech zone. And in that speech zone, like a little, a defined area of campus, you're going to be able to speak on whatever you want to speak of between a certain amount of time. And, you know, you're not going to be able to engage in, maybe you can't amplify it with a bullhorn or whatever, but all of these things are called time, place, and manner restrictions. And they're widespread throughout the country. Widespread. And so, you want to take it first? don't want five people standing in the street every day protesting

you know chicken nuggets and they just get to do that and then now nobody can use the street because five people want to protest saucy nugs right right are you referring to the great viral video

I am Kayla we got to put it in the show notes Are you referring to the great viral video? I am. Kayla, we got to put it in the show notes. The most fabulous video where the guy at the Lincoln City Council is there to protest the term boneless chicken wings, which he correctly points out are not from the meat of the wing. And in doing so says, we don't call them boneless tacos or boneless auto repair. We can call them something like saucy nugs. Or chicken or wet tenders. Wet tenders. It's fantastic. My favorite part is how he builds up. So this, is this Lincoln, Nebraska? Yeah.

Okay. How he builds up, like he starts talking about this problem with words and language. And he sort of builds up to this, when he gets up to speak to this real, this crescendo, and you're wondering, what is he going to be attacking? And then he talks about boneless wings and somebody just bursts out laughing off camera. And he turns to the guy laughing and goes, dude, come on. This is serious. It's fantastic. I feel that guy. So anyway, you don't want that guy to be able to block major intersections. And then there's nothing we can do because it's his, you know, quote unquote, right to assemble.

sections. And then there's nothing we can do because it's his, you know, quote unquote, right to assemble. On the flip side, what I find interesting right now, and a lot of the questions we were getting is basically why they, well, maybe it's, I shouldn't assume that they were taking one side or the other, but what's going on with the current protests and why they're legal or not legal to have, you know, tens of thousands of people blocking the street and whether they need a permit. And it's actually a really interesting question because permits generally take two weeks or more. And they will tell you that on the permit application. They can cost money.

You sometimes have to hire your own security. And there is often an exception but even if there isn't a written exception i think that you would have a constitutional problem of a spontaneous gathering of people petitioning the government about a government action that is ongoing and unjust that spilled out from the sidewalk, like a public forum where you're allowed to be, you can't fit 10,000 people on the sidewalk. You can't then just arrest all the people who don't fit on the sidewalk. Right. Right. And, you know, and then the question is, where's that line? Like we've talked a lot about the,

on the flip side, the government putting restrictions during a pandemic on various things, including your ability to go to church. And they were saying, that's a gray area in terms of the timing. This is 100% a gray area in terms of how exigent the circumstances perhaps need to be. But the idea that all of these protesters need a permit for what they're doing, I think, would not pass constitutionalitting process, especially, you know, that permitting process itself is going to be under scrutiny. I mean, there's a general framework for time, place, and manner restrictions. They have to be content neutral. In other words, you can't privilege one form of expression over another. They got to be narrowly tailored to serve a significant governmental interest, and they have to leave open ample alternative channels

for communicating the message. And this test is pretty rigorously applied. It's one of the reasons why speech zones are struck down again and again on campus is because court will look at them and say that they're not, even though they're content neutral, they're not narrowly tailored.

In fact, the speech zone might be narrow. Yeah, like one speech zone was the size of two dorm rooms when I was looking at one of those. And on the content neutral, I've actually, you know, the major Supreme Court case on this is interesting because I think when you hear it, it sounds pretty reasonable. So it was that you couldn't have a protest within 100 feet, 100 yards, whatever it was of a school. That makes perfect sense. You don't want to disrupt students from learning because you're out there shouting. And there was an exception if it was related to a labor dispute basically involving the school. So the teachers should get to be able to protest near the school because that's sort of the point. Makes perfect sense, right? When someone's writing that law, they're like, well, yeah, we don't want protest near the school because that's sort of the point. Makes perfect sense, right? When someone's writing that law, they're like, well, yeah, we don't want them near the school because that could be loud, disruptive to class.

But if it's a protest related to the school, then you should be able to protest near the school. And the Supreme Court said that was not content neutral because some speech was privileged over other speech in terms of where you could protest. So that's very strictly enforced. Yeah, yeah, exactly. So time, place, and manner restrictions, in theory, in theory, if you're advising cities, if you're advising universities, you can say, hey, look, we can keep order with these really creative and good time, place, and manner restrictions.

In practice, it's much more difficult than that, much more difficult. And so there's gonna have to be, and's much more difficult than that, much more difficult. And so there's going to have to be, and this last prong that says, even a time, place, and manner restriction has to leave open ample alternative means for communicating the speaker's message. And so I think that's the prong, for example, that if there is a spontaneous demonstration and you're going to walk in, you're going to swoop in and say, no, no, no, you can't do this spontaneous demonstration because you've got a two-week permitting process you have to go through. I'd be running in and saying, no, wait a minute,

you have to have the ample alternative channels for communicating the speaker's message. The bottom line here is that city governments and state governments are really limited in the way that they can just sort of, on a content-neutral basis, clamp down on demonstrations. There's also a very practical, so we're talking about the legal problems

with clamping down. There's a very practical problem as well. You've got 10,000 people who are spontaneously protesting government action. You do not have enough law enforcement to arrest 10,000 people. Yeah, that's one of the things about the George Floyd protests. There was a lot of debate and discussion about, well, wait a minute. You can't go to a funeral now. You can't go to a church. You can't go to a funeral now. You can't go to a church.

You can't go to a church meeting now. So why is it suddenly okay to go to one of these massive protests? Well, that was an online argument that was in some ways divorced from reality because holding back those protests would have been like holding back a tsunami, that these things were going to happen. And it wasn't a matter of whether the police was giving them permission or not permission. These were going to happen. And that circumstance, the police responsibility sort of shifts from prevention to control. In other words, making sure it's channeled into the right places in the city,

making sure violence doesn't break out, arresting the violent members of the protests. But the idea that you had anything like the manpower to go and arrest 50,000 people for violating social distancing guidelines, that was never, ever, ever going to happen. Yeah, so again, on this gray area, you have spontaneous protests related to the release of a video.

No one was invited to those protests per se. On the other end of that spectrum, let's use the March for Life. You need a permit for that because you're inviting people a year in advance. It's known what you're going to do. You're going to use a large space. So those do need a permit. And then there's all this stuff in between. And then there's all this stuff in between. Yes. Well, and the other thing is, though, there are circumstances in which, now, because remember, again, as we've talked in many other contexts, there is such a thing as a compelling governmental interest that can begin to trump even fundamental individual rights, as we've seen with the pandemic. There is a level of violence that can then begin to grant the state

an amount of power to trump the exercise of individual rights. And I'm thinking- For instance, a curfew. A curfew, bingo, bingo. If I'm gonna be, if I'm the mayor of Franklin, Tennessee, I'm not going to be able to say

in normal circumstances, everyone needs to be off the street for any reason by 6 p.m. on any given day. I just can't do that. I can't do that. But if we've had 10 straight days of violence and looting, I can say streets are cleared by 6 p.m. Now, on the flip side, I think you would have trouble if you said no one can be on the streets at all for any reason for two weeks because we've had looting.

Right. Like not a curfew, just you can't leave your house because we're going to just anyone who's outside their house, we're going to assume is looting at 2 p.m. Everyone gets arrested. You still have to, I think, would have to have some outlet for that speech. speech. But to your point on that third prong, if you have all of the daylight hours to say your speech, I think a court would say that you don't need the nighttime hours also. Right, right. No, yeah, there is a, it's not a bright line. Let's be honest, it's not a bright line. Just as it's not a bright line with the pandemic. I mean, at what level of daily infections and daily deaths will courts start to say these restrictions

on church services are excessive? We don't know because we're in kind of uncharted waters, but there is a line, it's kind of hazy and gray, where a curfew is going to be unlawful and where it's going to be lawful. But as a general matter, the default obligation of the state is going to be to protect the right to protest. The default position of the state is not going to be one where they're empowered to limit it. It's going to be where they're

obligated to protect it. And given our conversation from last week, I don't know, I've lost all track of time, but this is strict scrutiny it's the a great example of strict scrutiny where uh like i said um what was it difficult in theory fatal and oh strict in theory fatal in fact right um you know it's not always fatal in fact but like we said with those speech zones or college campus restrictions on speech, they've often been fatal in fact, but we're in one of these unusual 2020 situations where oddly enough, they might be not fatal in fact. Yeah, right, right. I mean, well, you know, the actual test itself is not the strict scrutiny test unless you violate one of the prongs of it. Like for example, not the strict scrutiny test unless you violate one of the prongs of it. Like, for example,

if the regulation isn't content neutral, bam, strict scrutiny. But the reality of the time, place, and manner restriction, as I've found time and time again, is it works and function an awful lot like strict scrutiny. And it sounds a lot like strict scrutiny. Even the prongs are strict scrutiny-ish. officials are obligated to protect the first amendment rights of their citizens and also at the same time obligated to protect sort of the peace and state safety and security of the community it makes it it is a complicator to quelling urban unrest that let's just say authoritarian regimes do not have the The authoritarian regime can say, we're just not permitting this mass gathering, period. The democratic, a constitutional republic like ours has to permit the mass gathering.

And then you have the obligation to try to protect life and property in the context of policing the mass gathering. Those are different circumstances. And one of the reasons why I get frustrated at the notion that people just think you can turn off and on urban unrest like flipping a light switch.

Well, David, before we move on to our last topic, I just want to flag that we will not have a podcast on Labor Day. We'll do that Tuesday. True, Yes. I'm phrasing it as a question because you and I haven't talked about it, but I think that's going to be the plan.

And I just want to say right now, I think Tuesday is going to be some election law. I think we're going to talk about voter fraud. What is and what is not voter fraud? Why it's so hard to prosecute? I have some feelings after the president's tweets. Everyone's like, well, it's illegal to vote twice. We will discuss on Tuesday.

Yes. Well, I can't wait to show up for my own podcast now. Also, some notes from a couple pods ago, but I was looking for a word referring to when you place a bet that has like many parts in order like all the parts have to come true it's called a parlay thank you to everyone who wrote in to give me that word that i couldn't think of two i also talked about an anaconda eating a gazelle that would be impossible unless you were in a zoo perhaps anacondas live live in South America and gazelles live in Africa,

something you would think I would know because actually most of my childhood was spent traveling on those two continents. I have seen an anaconda orgy, in fact, and yet got that one wrong. So apologies and thanks also for the listener who caught that because that's pretty in the weeds, David. That is.

So let's table for a future discussion. Why were you traveling in those continents for most of your childhood? Actually, it will come up in our next topic. Okay, so the next topic, because as Sarah knows all too well, I have been unrelentingly complaining about- Unrelenting!

Unrelentingly complaining about the- And by the way, women will, this is like man cold. You know, we call it man flu and like you have the sniffles and you just complain to high heaven about how sick you are and women like are missing limbs and are like, no, I'm fine, whatever, I'll cook dinner. This is David right now on the pod. Everybody knows men have worse colds. I can't wait for the winter. It is known. And Caleb, I'm going to send you for the show notes, a YouTube documenting the truth of this. I can't

wait. Yeah, it's fantastic. So anyway. So tell us about your band slew, David. I have been complaining relentlessly that I'm barely able to walk for several days now after ascending Mount Elbert. And that made me question, what is the most, for myself, what's the most physically demanding thing I've ever done? And so that's the question. Sarah, what is the most physically demanding thing you've ever done? So my parents are big into wildlife and birding. And so for usually two to three

weeks to a month out of the year, I would be taken out of school and we would go somewhere. I camped on the Serengeti and the Ngorongoro crater when we were actually some of the last people to get to do that. It is now closed to overnight campers or was for quite a while. But one of the things that we did was we went seven miles or seven hours, sorry, down the Tamapico river, uh, to a macaw sanctuary where they were raising injured and orphaned macaws along a salt lick that the macaws really liked. And, uh, I got to go up into a macaw nest to visit the newly hatched baby macaws. But in order to do that, I had to, it's called jumering.

I don't know if you're aware of jumering. That was the hard. It was so hard, David. So you basically are using your feet to push down and then you clamp up and then pull down. And so then you're in a scrunched position. Then you push down with your feet to extend yourself and then pull up. And then you're in the scrunched position again. Does that make sense? And you use that to get up the rope, up a tree. Um, and then if you're older than I was, you get to like repel down,

but I was not old enough to really be repelling sufficient. So I also had to Jumer the way down. And at that point I was, uh, in tears, but little known fact, you can't just live halfway down a tree. So, and no one can help you. So like, it was just one of those moments as a, you where you're just like, huh, this is like adulthood. You just have to do something you don't want to do. There's no choice. And you can cry. You can do anything you want about it. But you're just going to have to keep doing this thing.

That sounds hard. It was hard for me. I'm sure there's people listening to this pod that are like, yeah, Jimmering's not that bad. But it was for me. I'm sure there's people listening to this pod that are like, yeah, gym rings, not that bad. But it was for me. It is my moment where I think back of the most physically challenging thing I ever did. Yeah. So I'm just going to go ahead and say to our CrossFit listeners, I do not want to hear about how you did 100 gymmers on your workout of the day. I don't want to hear about your workout of the day at all. When you're covered in sweat and mosquitoes and dirt in a jungle that is wet and humid and the temperature's off the charts

and in a tall tree where you can't just take a break and have some water, then you can talk to me about how tough your CrossFit workout was. Yeah, yeah. You hear that, CrossFitters? Nobody wants to know about it. All right. So for me, I have to think, because I did this climb when I was 23. I did it when I was 51. And both of them have had more enduring pain and soreness, I think, than anything I've

done. Although in the contest is a Tough Mudder I did a few years ago in Charlotte, North Carolina. And I felt after that like I'd been in a minor car accident. But that wasn't so much because of the actual physical cost of it as it was because of electrocution. One of the things that they do in the Tough Mudder is you'll have one obstacle. Is it to electrocute you? Yeah. Well, not fully, Sarah. What?

Not fully. So you'll crawl on your hands and knees. I mean, not hands and knees. You'll do like a low crawl on your stomach through a pit of mud in one of the obstacles. And they have these electrodes. Right, that sounds okay. But they have electrodes hanging down.

What? Yeah. And so if you raise up at all, you get electrocuted back down to the ground. Oh my God. Yeah. And so if you raise up at all, you get electrocuted back down to the ground. Oh my God. Yeah. And there was a point at which, and this was about 11 miles into the 13 mile obstacle run ordeal,

which was a ton of fun, by the way. I can totally recommend it. Do it with your friends. It's a blast. Being electrocuted in the mud sounds awesome. I'll definitely be signing up for that. It's like reconnecting with your middle school boy stage of life. Running around in the mud and hanging out with your friends and doing stupidly dangerous things just because they're stupidly

dangerous. Dear Brisket, when you listen to this podcast in many, many years, do not come to me saying that you want to go be electrocuted in the mud. Well, my problem, what made it, this was my version of Jumering. Yeah. J-U-M-M-A-R-I-N-G. Jumering. Jumering. This was my version. I got about nine-tenths of the way through the 100-yard or so mud pit, and I was kind of tired of it. And so I thought, I'm just going to go ahead and get up out of this thing. And the problem was the electric shock was powerful enough that it would involuntarily force you back down. So I went through a phase of up, shock, fall on my face, up, shock, fall on my face, up, shock, fall on my face. Wait shock, fall on my face, up shock, fall on my face.

Wait, why did you have to do this more than once? Like once you figured out that you couldn't get up, why were you still trying? The electricity is not going to defeat me, Sarah. Oh my God, this is like the opposite of my lesson from Jumering, where I was like, no, you just got to like suck it up and do the thing

you don't want to do. And you were like, no, I'll just keep getting electrocuted. What? Yeah, so I just did that because of sheer willpower. Oh, okay. Yeah. That's one way. And I think that the way that I felt afterwards, I can't tell how much of it was muscle soreness and how much of it was electrocution soreness. Boy, if I had a nickel. So I would say to you, but I will say the feeling of accomplishment of standing at the top of the mountain or the feeling of accomplishment on the plains of Serengeti or the feeling of accomplishment when they hand you the cold beer at the end of the Tough Mudder. Does it make it all worth it, Sarah? I was just thinking that to myself. Were the baby macaws worth it?

And probably not in this case. Oh, no. Because there were baby macaws worth it? And probably not in this case. Oh, no. Because there were baby macaws at the sanctuary. I was spending the night with baby macaws. I'm not sure why I felt like I needed to see baby macaws in the wild. They're very similar to baby macaws that were just in the wild a few days ago when they fell out of the nest. Very similar. Yeah. Well, that's not encouraging. Except those baby macaws that I was spending the night with didn't come with pissed-off parents.

Well, that's true. Large pissed-off parents if you've ever been around a wild macaw. Well, then I guess that's when the danger and the hardship is just its own reward. That's right. Yeah. It was a life lesson. Indeed. Indeed. All right. Well, It was a life lesson. Indeed. Indeed. All right.

Well, that's our podcast. And so come back Tuesday after Labor Day where you're going to learn more than you ever wanted to know about voter fraud and what a timely basis. So this has been the Advisory Opinion Podcast with David French and Sarah Isker. Thanks for listening. And please, once again, go rate us on Apple Podcasts and subscribe to us on Apple Podcasts. We'd appreciate it very much, and it helps us a great deal. Thank you for listening. Bye.