Advisory Opinions - 'Twas the Night Before Brisket

Episode Date: June 11, 2020

It's Brisket Eve and David and Sarah are celebrating by diving into the latest polls on the protests around the country, the legal weeds of Confederate monuments, and answer the question, why does the rule against perpetuities get the people going? But the festivities don't end there, there's the Michael Flynn amicus curiae, Tom Cotton, and Gone with the Wind. Show Notes: -Michael Flynn brief Learn more about your ad choices. Visit megaphone.fm/adchoices

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That's the sound of unaged whiskey transforming into Jack Daniel's Tennessee whiskey in Lynchburg, Tennessee. Around 1860, Nearest Green taught Jack Daniel how to filter whiskey through charcoal for a smoother taste, one drop at a time. This is one of many sounds in Tennessee with a story to tell. To hear them in person, plan your trip at tnvacation.com. Tennessee sounds perfect. You ready? I was born ready. Welcome to the Advisory Opinions Podcast. This is an auspicious day.

This is actually Brisket Eve, which now all the listeners, Sarah, may not know what we mean by Brisket Eve or when we use the term brisket on this podcast. But tell the audience why we are not at this moment podcasting live from the Capitol Hill Autonomous Zone in liberated Seattle, but are instead... Well, you suggested it. Yeah. And I really did consider it. I mean, that both of us could just drive out there and we could broadcast live from there. But I had some concerns because I have been cooking a brisket, a roughly nine pound brisket for many months now. And the brisket is ready to come out of the smoker tomorrow. Wonderful. Wonderful. And as we said in the last podcast, you still have the intention of being with us on Monday? Is that is that prospect not yet daunting

to you? David, this was a headline in my inbox this morning. Liberal groups back plan to expand the Supreme Court. And there's a whole open letter that we have to talk about on Monday, not to mention the cases that are coming out, not to mention the orders that we're still waiting on nine unqualified immunity couple on Second Amendment. It's too much, David. I can't. We have to do it. Okay. Not to mention your husband's going to need some good alone bonding time. That's right. With the baby. Yeah. Okay. He's half this genetic material, so let's see him carry some weight here.

As long as we are totally on the record here, I'm going to speak for the human resources suits at the dispatch. As long as we are completely on the record that we have in no way, shape or form pressured Sarah Isger into appearing on a podcast three days after the birth of her first child. Definitely have not. And in all seriousness, it actually is good for me not to hover around my husband and to, you know, give him the baby,

walk away and go do something else. For some women, that relaxing thing is, you know, I don't know, manicure, pedicure, like all these things that I can't really do because of the pandemic.

And so this is going to be my thing. Well, our listeners will benefit. So maybe, maybe. really do because of the pandemic. And so this is going to be my thing. Well, our listeners will benefit. So maybe, maybe. And they'll especially benefit if you're still on painkillers, which could make it an interesting, a very interesting podcast. But speaking of podcasts, let's march on with this one. So we are going to talk today, hit several topics. We're going to talk polling in the aftermath of George Floyd's death and the Black Lives Matter protests around the country, what is happening politically. We're going to talk about the legalities surrounding some of the calls to remove Confederate monuments. We're also going to talk about Confederate generals and American military installations a bit. Then we're going to go and talk about the Michael Flynn amicus filing. The former judge that Judge Sullivan appointed

to serve as amicus curiae, curiae. What is the official pronunciation of that, Sarah? I always say it. Well, actually, I never say the second word. And I say amicus, not amicus. Okay. So brief for court-appointed amicus is in, and it is, as kids your age, Sarah, say, lit.

Yeah. So we're going to go into that. We're also going to talk a little bit, if we have time, about the New York Times controversy and why we both don't care about it as much as you might think. And then we're going to wind up with some thoughts about Gone with the Wind, which y'all may have seen has been pulled from HBO Max. So that's all. So just to be clear, frankly, my dear, I don't give a damn about the New York Times, but I do have some thoughts about Gone with the Wind. Excellent. Excellent. So we got

a lot to cover. So let's start with polling. And Sarah, you are our resident numbers expert. So share with us some numbers, please. And we discussed some of this for those who listened to the Dispatch podcast with Steve and Jonah. But some new numbers or comparative numbers have come out yesterday and today. So just wanted to also talk to you about some of these numbers. So yesterday, uh, we saw that even where 43% of people think that the protests are peaceful and 43% of people think they're violent, uh, even for those who think the protests are mostly violent,

a majority support the protests, which is fascinating to me and has just like been sitting in, you know, my mind grapes, uh, since I saw that, uh, by the way of the people who think the 43% who think that the protests are mostly peaceful, 91% support the protest. That makes sense. I got that. Um, cause to me, this, the, if you think the protests are mostly violent and still support them, that has real political implications for whether this matters in November and how long the sentiment lasts. Is it just a blip? Because like right now we're all like, oh, that seems nice. And I think that's the number that to me was the most meaningful of like, no, there's something going on here that's different.

So today, a couple numbers of interest. Over the past two weeks, support for the Black Lives Matter movement increased by nearly as much as it has over the previous two years by a 28-point margin. Civics, the company in question here, found that a majority of Americans support the movement. That's a 17-point bump since the most recent wave of protests. Monmouth found that 76% of Americans consider racism and discrimination a, quote, big problem. That's up 26 points from 2015. So, you know, and a couple people have commented on this online and other pundits. It is unusual in American politics to see wide swings in public opinion on known issues. Like if aliens land tomorrow, okay, you might see a wide swing in like, do you believe in aliens?

Fine. True. But on something that most people were familiar with, like, do you think racism is a problem? Like to have such a wide swing in a matter of days? Unheard of. this when I talked about it in the Dispatch Pod. And there is facts matter eventually, like not immediately, not immediately. It's like the most mildly optimistic thing you can say, facts matter dot, dot, dot, eventually. Eventually. Facts matter eventually. Well, facts matter at the onset of the public Black Lives Matter movement and facts matter where we are now. So at the onset of the Black Lives Matter movement in 2014, it really centered around the – it really burst onto the scene with the Michael Brown shooting in Ferguson. And there were a couple of problems there. One was the shooting did not occur as the activists said. And so there was this huge battle over what actually occurred,

followed immediately by a lot of violence. And then a lot of the people who then came forward to sort of represent the Black Lives Matter, were part of the Black Lives Matter movement, which there's a small, you could say Black Lives Matter lowercase and Black Lives Matter all uppercase. There's a organization all upper, you know, the Black Lives Matter caps, Black Lives Matter, that you can look up. It has a platform, et cetera. And it's very, very, that you can look up. It has a platform, etc. And it's very, very, very radical. So when people were Googling this, when they were looking at this initially, you had a story of a shooting that was false, and you had the movement that was advancing it, this very, very radical, seeking things like the disruption of the Western prescribed nuclear family.

You can go still and see these issues from the formal group, and it's quite radical. And so here are the facts where you had a shooting that did not occur, as was said. You had activists from a group that it seems very, very radical, and you had violence. And those facts mattered in 2014 but then as years went by and you began to see more shootings where it was clear-cut what happened was horrible and then another and then another and then another and that the the term black lives matter became not a reference to a group became not a reference to a group, but a reference to a concept that shouldn't be controversial, things began to change. And then the George that I still maintain, it's the one-two punch of Ahmaud Arbery and George Floyd. One after the other, both of them so obviously brutal.

So obviously brutal. With clear videos. Mm-hmm, exactly. No real contention. Start halfway through. Like you really do have sort of the video you feel like from mostly the beginning of the story. Yes, exactly. David, can I share a somewhat controversial opinion

that I hold? Sure, sure. This is a safe space for controversial opinions. We'll see what you think. Okay. I think that I believe that for a movement to catch hold and create real change in our history, that most often you need, most often not need, most often, not need, most often, it has had the ingredients of a John Brown and a Harriet Beecher Stowe. And a Frederick Douglass, actually. I'm going to add in a third element as well. And what I mean by that is John Brown, the radical who, I mean, sort of nobody supported going around and chopping people up.

Right. But it got a lot of attention. Yeah. To, uh, Harriet Beecher Stowe, you know, the little lady who started this big war who comes at it from a, um, empathetic standpoint and is like, think about this, look at this, you know, let me get into your heart and mind about this issue. And then three, the sort of Frederick Douglass intellectual side of the argument. And that those three elements, we may not like all three elements of that, particularly a lot of people I think will in any movement condemn the John Browns of the movement. But I guess my overall argument is, um, I don't know a lot of successful movements that didn't have their own John Brown. And by the way, I don't really mean that to always mean violence, by the way. I mean, just a radical position. Yeah, no, I, I, I think you're right about that.

I mean, if you go back to the American revolution, Revolution, you had, you know, you had people pinning some of the most eloquent defenses of liberty ever printed in the English language. You also had, you know, people dressed up as Native Americans storming on board ships and dumping tea into harbor. You had near riots in Boston that led to, you know, the Boston Massacre. You had this big mix, this combination of intellectual exercise and pop sort of, you know, to the extent you could say pop culture, but cultural influences. And then you also had your radical. And I would argue that Payne was the Harry Beecher Stowe of that. He's the, you know, common sense is more the empathetic, like, think about this. We need to do this emotional appeal.

When all human movements are, especially mass movements, are messy. Yeah. They're very messy. And I think my point about 2014 compared to 2020 is in 2014, you basically saw the messy side was in the front. Okay. It was this, this incident did not occur as, uh, was described and the main people advancing it were, uh, you know, as you know, not John Brown in the sense of like John Brown actually wanted to massacre people, but in the sense that I really want to be clear that I don't mean that you need a John Brown killing people. What I just meant by that was the radical ism, the radical side.

Yes, absolutely. And so that was the that was the full front of it. And also, I think the Colin Kaepernick in a way was also like that, because his if you talk to the strongest Colin Kaepernick critics and and me personally, before Trump threatened to fire kneeling players, which to me escalated this dispute dramatically and turned it into something very different. I thought that Kaepernick was going about this the wrong way because he wasn't just kneeling. He wore socks that depicted police as pigs. And a lot of his rhetoric was, I thought, in many ways over the top. And so what was happening in 2014 is you were seeing that more radical side of it lead. But then by 2015, 2016, as it kept going, that complete mix that you just described locked into place. And that's where we are now, to the point where if somebody says Black Lives Matter, people have often forgotten that there's an actual website you can go to and Google and see the super radical policy platform.

I think that's all true. Speaking of things that are on my personal policy platform. So when I started, when Carly Fiorina offered me a job running her 2016 campaign, and I don't think you know this, David. Oh, I'm interested. I said that there were only three things that I wanted if we won. Okay, let's hear it. The three things were were not in order. One, the end of daylight savings time. Boo.

Two, or whichever, like just pick one and stick with it. I don't care which one we stick with. Permanent daylight savings time. Sure. Great. Okay. Just stop with that. People like it costs lives to do this and it makes makes no sense, and it's silly, and nobody really supports it.

Two, campaign finance reform reform. Okay. And that's something we should talk about in a different pod, by the way. Yeah, I'd love to. And three, the renaming of Jefferson Davis Highway in Virginia. Nice. She informed me that as president, she was not clear on whether she could rename Jefferson Davis Highway.

And I said, I don't need you to personally go take the signs down. I just need you to agree that if we win, I have leave for my time to make that a reality through whatever means necessary. Okay. So, but great news. Jefferson Davis highway was recently renamed Richmond highway. It's on my Google map. Um, I find it this, I don't think I share a lot of very, very strong opinions on issues on this podcast. I'm pretty like, well, here's what one side argues. Here's what the other side argues. I am so passionate about this issue. Why I have to drive on a highway next, like watching and seeing our nation's capital

named after a traitor to our country. It just offended me every single time I had to pull onto it. Yeah, you know, it's really interesting because I live on a battlefield. So Franklin, Tennessee is the site of one of the last big battles, pitched battles between large-scale Union and Confederate forces in the Civil War, fought in November of 1864. It was one of the more desperate fights because this was late in the war. The Confederate cause was fading, and this was a last-ditch and, quite frankly, reckless attempt to reverse the fortunes of war, which led to what it turned into an absolute slaughter of Confederate troops as they launched what may have been one of the largest infantry charges in the history of the Civil War and therefore in the history of North America. And just and so I live my house is on the outskirts of the battlefield. When I walk,

there are hiking trails out behind our house. When I walk, there are hiking trails out behind our house. When I walk, I walk past Confederate observation posts that are overlooking the town. When I drive into town, I'm driving past the heart of the battlefield. And so there's a huge Confederate cemetery just east of town. There are these split rail fences marking different parts of the battlefield. There's cannons all over and the historical plaques. And there's a monument in the middle of the town square to the Confederate soldiers who died in the battle. And so I live on a battlefield.

And some of the streets are named after the generals who were there, mainly the Confederate generals. I don't think that I've seen a street named after a Union general. Can't see that. Yeah. And so I have feelings about the issue. And one of my feelings is we do not suffer from excess historical knowledge. We suffer from deficiencies in historical knowledge. And one of the things that we really suffer from across the American South are monuments to the Union soldiers. So what I would like to see, my goal is instead of, I'm fine with monuments and battlefields. We need, as far as I'm concerned, more historical markers. What I would like to see is more. Let's put up a monument to a Union soldier in Franklin.

Wait, wait, wait. There's a big difference, and you sort of skipped over it. Battlefields are historical. Markers saying what happened are historical. Monuments are honorifics. There's a difference. Yes, but they also mark something. There's many different monuments across the South with many different histories.

So, for example— Yes, although, as you know, the two biggest times that monuments were built to Confederate honors in this country, they weren't in 1865. They weren't 1866. 1865, they were in 1866, they were in 1890 to 1920 when Reconstruction had ended and Jim Crow laws were being passed as a way of signaling to the African Americans in the community that they didn't belong and that that time was over. And two, during the civil rights era from 1950 to 1970. And that's not about history. That's not about teaching people. That's when you started to see some of these things going up in the North as well, which is one of the weirdest things ever is that there's actual Confederate monuments in the North.

It's not weird. I mean, it's not. It's exactly what you think it is. It is kind of weird. I mean, that's... I mean, it's not weird as an inexplicable. It's very explicable. So for instance, for brag was named for brag in 1921. That's just two years after the Chicago race riots, Tulsa race riots. I mean, this was a message. Right. And I think there is a better message, which is so the vast, vast, vast majority of Union soldiers who died in the war died in the South because they were there was very little combat north of the Mason-Dixon line. Gettysburg is a notable exception. And so they died in the South.

And some of the generals who led the Union Army were from the South, actually. George Thomas was one of the great heroes of the Civil War. And he was a Virginian who made the exact opposite decision that Robert E. Lee made and that Stonewall Jackson made. And what I would like to see is I would like to see a wave of monuments to these people. That's what I would like to see a wave of monuments to these people. That's what I would like to see. I would like to see, in addition to the, you know, across the city of Franklin, let's build a monument to the Union soldiers who died there. Let's build a monument to the Union general who led the army that was victorious

there. And that's, that's what I would like to see now when it comes to the forts, you know, these military forts and the highways and all of that stuff. Um, in my view, you change their names like no soldier news on that front, by the way, the Republican-controlled Senate Armed Services Committee on Wednesday adopted an amendment behind closed doors to rename military bases and other, you know, army assets named after Confederate generals, despite the president's tweets about it. And that gives me a lot of hope. Yeah, no soldier. Because I disagree with you, by the way, just to be clear. Yes, lots of people do. Monuments, honorifics to Confederate generals should be taken down. They can be put in a museum. And if you want to make the historical point, that's great. You can

go visit them in the museum. I'm fine if you want to put up Union monuments. I'm not sure that I particularly, you know, take it or leave it, whatever you want. But no, I cannot abide, because it isn't honorific. It is not just a piece of history. If it had been built in private cemeteries like they were mostly in 1865, 1866, 1867, then I think you could make a history argument. I just cannot buy the history argument when they're going up as, to me at least, a very specific message. The history is quite different. The history isn't to commemorate the loss of some culture. The history is to send a message to African Americans in the community and to white Americans in the community about the end of reconstruction or, you know, separate but equal. I mean, Plessy v. Ferguson is happening

in 1896. And the monument that I want to talk about today, of course, is the 1890 Robert E. Lee monument in Richmond. Yes. Well, before we talk about that, let's talk about the bases. Yes. Yes. So Trump, this argument, I think, is a bad argument. These are Trump's tweets. It has been suggested that we should rename as many as 10 of our legendary military bases, such as Fort Bragg in North Carolina, Fort Hood in Texas, Fort Benning in Georgia. These monumental and very powerful bases have become part of a great American heritage and a history of winning, victory, and freedom. The United States of America trained and deployed our heroes, all caps, on these hallowed grounds

and won two world wars. Therefore, my administration will not even consider the renaming of these magnificent and fabled military installations. Our history is the greatest nation the world will not be tampered with. Respect our military. Now, once again, just want to make clear that Bragg was named in 1928. So not two world wars. And just to be clear, Bragg was not the greatest general, nor was like the worst general, nor was Hood. Hood was the Confederate general who threw away the Confederate army in the West at the Battle of Franklin with a giant suicidal frontal attack. But anyway, so you're not even arguing, you're not even naming this after a particularly phenomenal tactician.

But let me just say, I've never met a member of the military who took great pride in the name of their base. Fair point. It's just a place name. No one is running around going, Fort Bragg has pride attached to it because of what they do at Fort Bragg. Or Benning has pride attached to it because of what they do at Benning. or Benning as it has pride attached to it because what they do at Benning, it's not because of Benning. Well, and certainly I would think not because, yeah, like, because you can't really take a lot of pride in General Bragg. He was not good to his men.

He was not a good tactician. He offered his resignation and it was accepted after humiliation and failure. How this got named after him, I don't know. Oh, except that he was a big proponent of slavery and segregation. Yeah. And Hood, well, I could talk for a long time about Hood's many, many, many military mistakes. But again, this idea, and I think that this connects, and then we'll talk at some of the legalities. Which is really fun, by the way, guys. Just wait. Oh, my gosh. Yes. So this connects with our topic one, I think in a pretty important way. I think that

Trump is turning back to an old playbook, an older political playbook, one that may have been working even as recently as five or four or three years ago. And that is sort of that appeal to heritage. Now, the heritage appeal on something like a name of a fort, where it's not a fort where anyone, where, you know, Bragg necessarily fought. I mean, it was just it was an honorific. I don't that's just not I don't think that's working now. And I think two things right now are just not working for him. One are the major threats, these these dramatic threats. He keeps issuing, by the way, it's you know, his latest one is basically to come in and terminate the Capitol Hill Autonomous Zone in Seattle. And then today, earlier today, he talked about how easy it was to clear Lafayette Square. With the unfortunate acronymization of the Secret Service,

he said the SS did a really good job. Here's the actual quote, which I don't think is saying what he wants it to say. Our great National Guard troops who took care of the area around the White House could hardly believe how easy it was. A walk in the park, one said. The protesters, agitators, anarchists, Antifa, and others were handled very easily by the Guard, D.C. police, and SS. were handled very easily by the guard, D.C. police, and S.S. Great job. Of course it's going to be easy. These were unarmed, peaceful protesters. What? So anyway, I don't think this works for him right now. I think it is well out of step with where the American people are at this moment. But, you know, I'd love your thoughts and then let's dive into the legality. No, I mean, I think we're seeing a culture shift

on this. But I will admit, unlike many issues where I think I maintain quite a bit of objectivity, I don't on this. I am not objective. I feel very strongly about it and have for many, many, many years. So I will not prognosticate, but I, for one, am here for the argument. Yes. So speaking of, so this Governor Northam in Virginia announced that he was taking down an 1890 statue and pedestal of Robert E. Lee that is in Richmond. And he was sued by the heir of the guys who deeded it to the state of Virginia. And there was a 10-day injunction issued earlier this week. Property law was my favorite class in law school and my highest grade in law school. So I want to be very clear. It means I probably know the least about it.

And if there are, uh, uh, trusted estates and property law lawyers listening to this podcast, I just apologies in advance. I got my property law textbook off the highest shelf today. I reread it. I mean, not the whole thing, obviously, the relevant portions. But like I had so much fun. And so we're going to learn property law today because I don't know another time that we're going to get to do this, David. Yeah, let's do it. So this is the facts are based on the complaint that the heir submitted. Uh, so we'll just accept those as true, but they're pretty solid. So first of all, he says that the, uh, uh, monument and pedestal were worth about $2 million at the time. It was based on private fundraising that they were

able to, um, you know, get the monument built and all of that. The land belonged to them that it was built on, called the Circle. They give it to the state with this deed, and the state then passes a joint resolution in the legislature. And I just need to read one portion that will become legally relevant. It is therefore resolved by the General Assembly of Virginia that the governor is hereby authorized and requested in the name and on behalf of the Commonwealth to accept at the hands of the Lee Monument Association the gift of the monument or equestrian statue of General Robert E. Lee,

including the pedestal and circle of ground upon which said statue is to be erected and to execute any appropriate conveyance of the same in token of such acceptance and of the guarantee of the state that it will hold said statue and pedestal and ground perpetually sacred to the monumental purpose to which they have been dedicated, devoted. These are a little hard to read. Yes. Okay. Property law time. Let's do this.

This is an inter vivos gift, meaning that it was not when they died. It was done that day. It was transferred over in the deed. That is usually irrevocable. Elements of a gift. Capacity of the donor. No problem here. You need to be 18 years old, not mentally ill, yada yada. This comes into play when we're talking about old people about to die, usually. Yeah. Intent. The donor must intend to transfer the property as a gift. This can be proven through writing, et cetera. No problem. We've got that. Delivery to the donee. It can be actual or symbolic. Well, they had a whole thing for this. It was like a little, you know, parade, whatever you want to call it. No problem. Acceptance by the donee. The donee, the state in this case, must also

affirmatively accept the gift. And that is why the joint resolution is so important. They actually did this all correctly. There's the deed that they hand over to the state, and then there's the state passing the joint resolution, which includes that guarantee to perpetually hold it sacred. That is a condition. Okay, reading real quick. Where a gift is conditioned upon the performance of some act by the donee and that condition is not fulfilled, the donor may recover the gift. However, the mere fact that the donee fails to do what the donor hopes and expects of the donee does not warrant the revocation of the completed gift. But I think that joint resolution makes pretty clear it was not just

a hope and expectation. It's acknowledged in the joint resolution. Right. Okay. So this really, the conditional thing only really counts in like engagement ring situations. You gave her the engagement ring because you thought she was going to marry you. Then she leaves you at the altar. she leaves you at the altar in most states you get the engagement ring back yes yeah okay so then we move on to covenants because really the whole perpetually sacred is a covenant that runs with the land it binds the promisor as well as his or her heirs, grantees, subsequent grantees, etc. The covenant has to, the parties have to intend the covenant to run with the land. Again, you have both the deed and the joint resolution. The covenant touches and concerns the land.

I think that's met here. It does not have to physically touch the land, although it does here. And there's privity, meaning like, you know, they were able to make this contract. A restrictive covenant may also be specifically enforced in equity. The injured parties. The measure of damages is limited to the compensation for the actual losses because of the breach. That's where the $2 million becomes pretty interesting. Do you base it on the amount of money it costs then, which is like $77,000?

Or inflation? Covenants, though, David, as I'm sure you remember from your property class back in 1917, they are disfavored in court. Anytime that a judge can weasel out of a covenant that runs with the land, he's basically encouraged to do so. Right. And there's two, by the way, wait, footnote, rule against perpetuities, which does not apply here. If you're going to law school, people will scare you about the rule against perpetuities, which I will read to you, and then you will be no wiser for me having read it to you. No interest is good unless it must vest, if at all, not later

than 21 years after some life and being at the creation of the interest. Nobody knows what this means. It is no longer used. Every state has its own actual rules about this. Just on Rule Against Perpetuities Day in law school, just go ahead, put on your headphones, and accept that you're going to get that number of points deducted from your final exam. It will be far better a life choice than trying to actually learn the rule against perpetuities. Do you agree, David? Oh, completely. Completely agree. And I will say this, that every time I hear the phrase,

no one knows what it means. I think about the classic American film Blades of Glory, where Will Ferrell playing the skater Chaz Michael Michaels is suggesting a song for the all male pairing of the pairs figure skating team of Chaz Michael Michaels, and I forget the other guy's name in the, but it's played by the Napoleon Dynamite guy. And he suggests My Humps by Black Eyed Peas. And Napoleon Dynamite says, what does that even mean? And Will Ferrell replies, nobody knows what it means, but it's provocative. It gets the people going. So does the rule against perpetuities. Yeah.

So rule against perpetuities is really about how you split up property and stuff down the line. That's not going to count here. But it does go to the point that, you know, things that prevent property from being used down the road are disfavored. That's why the rule against perpetuity exists. You don't want dead hand control over property. So in that sense, there's like a philosophical point to it, I suppose. Okay, but there are two doctrines. And again, some property lawyer is going to be like, maybe not.

But there's equitable doctrines that apply here as well. Cypre, which is French for so near or close. And equitable deviation, which is where basically the court can apply these rules to say like, okay, here's what the donor wanted when they gave the gift. That is now for whatever reason impossible or not feasible or the situation is so changed that we're going to try to do something close to it.

We're going to modify or redefine the purpose of it. Now, really, this is about charitable trust. So we've got some problems from 1890 to now in terms of law. now in terms of law. But again, like, I think what you're going to find is an equitable doctrine here where they say like, and that's why we're going to move it to a nice museum. Yeah. And I think that I'm glad you brought up and I believe not to be, not to be a stickler, but my first year moot court brief was over sea prey. Not, not Cypre. Not Cypre? Sea prey. Maybe that's a Texas thing? Could be. Could be. Well,

you didn't add the Texas accent, but Cypre. Cypre? No, I think it's Cypre. Listeners, someone will correct us. Someone who speaks French, let us know. But you do raise, so essentially, if you're going to look at the situation with monuments, and the reason why we brought up this 1890 deed here is that, my gosh, are there a thicket of laws and circumstances surrounding these things. Just tons. Just a thicket. And it's going to be interesting.

This litigation in Virginia, assuming everybody sticks to their guns and there's no settlement, is going to be very interesting to see. Is there going to be a way to cut through that thicket with some precedent that is going to, for example, as you were saying, move to a museum or move to a battlefield where the Army of Northern Virginia, which Lee commanded, fought. Like something like that, that would seem to be a way, like under the, CPRA applies to charitable trusts, and this doesn't seem to be a charitable trust, but it would seem to be a way that you could, it's compatible with sort of the equity of CPRAE. It's compatible with, okay, this has become impractical, wasteful, et cetera. It has become a public policy problem. And here is a way to not destroy the statue, but to move it to a place where it is more practicable for it to appear. And I think that it's going to be very interesting

to see if a kind of an equitable accommodation along those lines is reached, because that's like I said, I mean, you've got state laws, you've got local laws, you've got all kinds of I mean, all kinds of of various legal arrangements surrounding not just Civil War monuments, but there's a lot of monuments out there that have been challenged on establishment clause grounds, cross monuments and things like that. And there's just one of the things that will make your head hurt quickly is if you try to figure out where did any given monument come from? What are the 100-year-old resolutions surrounding its presence? Are there any private interests in play? It is just a, it's a morass. What makes this so interesting to me is that we have an heir who has clear standing. He's the

heir to the guy who signed the deed. And then you have the deed in good shape. And then you have this joint resolution. So you take out a lot of the fact problems that occur in these cases or jurisdictional problems, et cetera. And this is going to be a pure property law question. And what happens 130 years later? And I am very here for it. Yeah. Yeah. It's going to be fascinating because it could show the way. It could show a way to deal with, if a community wants,

and look, this is the decision of the state and the city and the town in which these monuments reside. If they want these things gone, if they want them moved, that should be up to the city. And it's very interesting to see how much an 1890 deed is going to bind a 2020 mayor or town council. And so I'm fascinated to see how this turns out. Although I expect there might be a settlement reached. Maybe. I don't know. Come on. Don't ruin my fun time. I'm so sorry.

Well, shall we move on to our next topic? Because we wanted to give this some pretty good time as well. Done. Done. Go. Okay. No. And I just want to circle back though real fast because I think your formulation of Harriet Beecher Stowe, Frederick Douglass, and John Brown. I have not thought, put it that. It's marinating with you. It's marinating because I've always kind of said, hey, we need different. Every big social move is accompanied by lots of different elements. And I like that that crystallized it. So thank you for that. I thought that was good stuff. Is now a good time, by the way, to do a quick correction from last week's podcast? Sure.

In last week's podcast, we were talking about incorporating the Bill of Rights against the states, meaning that it wasn't just the federal government. Congress shall make no law abridging your freedom of speech, but now the states can't either. about this Thomas concurrence in which he said that instead of using the substantive due process part of the 14th Amendment, that we should use the privileges or immunities part of the 14th Amendment. But that's not actually what I said. I said privileges and immunities. Well, guess what? The 14th Amendment says privileges or immunities. It's a different thing in the 14th Amendment, it's a different uh you know thing in the 14th amendment but privileges and immunities is in the constitution and it is in article 4 which talks about full faith and credit but in section 2 says the citizens of each state shall be entitled to all privileges and immunities of citizens in the several states they are different but both are pretty much gone.

And some people care very, very much about whether it's the or or and clause. And I just want to apologize because I should have been more clear that I was still talking about the 14th Amendment. And I want to thank our great listener who emailed me to highlight for me in the nicest possible way that I had conflated the two. And my husband, by the way, says that this is why he never says the word in the middle and just says privileges, immunities. And then when someone's like, which one do you mean? He's like, the one that's most applicable. That's brilliant. That's brilliant. I love that. Okay. So we're always up for corrections here because we seek truth at the Dispatch and on the Advisory Opinions Podcast. So thanks,

Sarah. But now let's move on to Flynn. We want to give this time. So brief came in yesterday from the amicus. And I have to say, and I really am eager to hear your opinion about this brief, but I read it, all 80 plus pages of it. And it was a pretty thorough demolition of what I would call the pop culture defense of Flynn, that he didn't really lie. Wait a minute. Okay, hold on. He really did lie, that there was no real justification for looking into his conduct. Makes a pretty compelling argument that there was a justification for looking into his conduct. And it really just rails on the argument that the government couldn't have proven its case against Flynn. And it was written in very strong language. So before you kind of break it down in detail,

I want to read you this segment, and then I'm eager to get your thoughts on it. And then we'll sort of like look at this in a bit of detail. So here is the summary of the former judge's view of the government's case. He says, even recognizing that the government is entitled to deference in assessing the strength of its case, its case for dismissing phlegm, its claims are not credible. Indeed, they are preposterous for starters, and most unusually, they are directly and decisively disproven by the government's own briefs filed just months ago in this very proceeding. They are also plainly inconsistent with prior orders of this court, which constitute the law of the case.

Finally, they depend on misstatements of law, distortions of fact, and departures from positions that DOJ has repeatedly taken in cases not involving the president's political allies. that DOJ has repeatedly taken in cases not involving the president's political allies. Short of a direct admission, it is difficult to imagine stronger proof that the reasons given by the government in support of dismissal are pretextual. Wow. And in brief language, like in the language of a brief filed in a complex federal court proceeding, that qualifies as almost the equivalent of a cable filed in a complex federal court proceeding, that qualifies as almost the equivalent of a cable news rant. Sarah, your thoughts? It's interesting that that's how you described it, because actually something that we tell our, we have our intern and our two new fellows

joining us at the dispatch on the writing side and something that we tell them and really beat into them. We would do it literally, except that obviously we're all social distancing and so they don't come into the office. So it is not literal, is show not tell. And I thought that this failed at that. I thought that the rhetoric was too over the top and it made it less persuasive to me. And that you could just walk through the facts and make the same case without some of the language. And the part where I actually was like, nope, you've lost me, was the very last part. And I know we want to go through it. But he starts by talking about whether the judge has to dismiss it. Yeah.

And he answers that no, I think correctly. Yes. And then should the judge dismiss it on two different grounds. One is the materiality was the lie material. And two is the government says they can't prove their case. And I think he, again, if you just take the showing that he gives, it's pretty persuasive. Although again, I think there's a lot of telling in that that was less persuasive.

But then the last section is on whether the court should on its own hold him in contempt for perjury. That's where I got, it really went off the rails for me because the arguments for why Flynn committed perjury are that he pled guilty and now wants to take back his plea. So the things he said in pleading guilty, he's saying are no longer true. So it's like a catch 22. You can never say that you want to take back your plea or else you face a perjury charge. Um, and then when he entered his plea, you have to agree that it is knowingly and voluntarily entered into. And that's the second

thing he says you could charge him with perjury for. I have a big problem that there is no way to try to withdraw a plea without admitting to perjury. And therefore, because he never really addressed that under the perjury section. Now, he does say that the judge should not charge him with perjury and instead use that in consideration of sentencing. But he never says there's some real legal problems here if the perjury charge is based on the very thing that he's trying to withdraw from. So once you did not address that problem with your argument, it then colored the whole rest of the brief for me. Interesting. I thought that was by far the weakest part, but it did not color points one,

two, and three for me. And I did think the language was consistently over the top. It was so much about this case seems to be that everyone is writing with one eye on Twitter. A lot of feelings. Lots of feelings. Lots of feelings. But there were, you know, points one, two, and three, I thought he very meticulously. And let me just say this, we have a lot of law students who listen to this podcast, and I will give you some advice that I

got that's one of the best pieces of advice I ever got about legal writing. And it was given by a federal judge in the Southern District of New York, a retired federal judge, who said to me, David, when you write, write with regret, not outrage. And I've always thought about that. And I've actually applied that to my writing as a journalist, is write with regret, not outrage. And it's- I mean, underline, highlight, exclamation point, exclamation point. I think that's actually a better way of saying show, not tell, because I think that makes more sense to more people. So, yes. Yeah.

So, right with regret, not outrage. And he violated that rule. He wrote with outrage. Yeah. But I will say this. When he got to the substance, I think he was quite meticulous at dismantling the government's argument until he reached the perjury point where I agree with you by far the weakest point of the brief. So the first part that he, I thought, did very effectively was arguing that the by leave of court requirement that exists in the federal rules of criminal procedure for dismissal isn't just an empty letter. It is not designed entirely for the purpose of protecting defendants from vexatious prosecutions, that there is also an element to protecting the system of justice itself from a corrupt prosecution. So I thought he... And he has a great line. Rule 48A, which is the rule in question, was designed to, quote, guard against dubious dismissals of criminal cases that would

benefit powerful and well-connected defendants. In other words, the rule empowers courts to protect the integrity of their own proceedings from prosecutors who undertake corrupt, politically motivated dismissals. And that's where he should have stopped. But then the next sentence is, that is what has happened here, period. Exactly. Exactly. Then the other thing that I thought... That's the definition of telling, not showing. Yeah. And because we don't have time to show and not tell, let me be a little hypocritical and skip to another one of his tell not show lines. The other thing that I thought he did very, very well was to demonstrate how the government was applying a theory of materiality to Flynn's lies that it does not apply. And also to go to your point, a theory of prosecutorial wrongdoing that it does not apply to other cases. And this is a point you've been making for a while that I love when I'm

right. Please continue. Yes. Now, again, here we go with the show, not tell or the cable news ramp. Another way for this experienced court to assess the transparent disingenuousness of the government's arguments about predication is to imagine the government's own response in any other case to request for the information it says is fatal to Flynn's. Suppose any other defendant in a false statement case demanded disclosure of whether the agency at one point thought about closing the investigation, or demanded production of the facts on which the investigation was predicated, or demanded to know what the investigating agent subjectively believed at various points. Even if the defendant had not already pled guilty before one judge and

reaffirmed that elocution under oath before another, the government would scoff at those demands and the court would summarily deny them. And that goes to the difference between the cable news argument for Flynn and the legal argument for Flynn. A lot of the arguments that you hear on cable news about the FBI are not legal arguments that have applied in other cases the Department of Justice has brought in response to FBI investigations. And that's a point that you've made repeatedly. Yeah. And the, you know, he does have some lines in here, which are, if nothing else, helpful to understand his viewpoint and what he's trying to persuade the judge, Judge Sullivan, to do. The government's ostensible grounds for seeking dismissal are conclusively disproven by its own briefs filed earlier in this proceeding.

Yikes. You hate to see it, as they say. And on the materiality point, he says, this is about as straightforward a case of materiality as a prosecutor, court, or jury will ever see. see. But then when he gets to DOJ's point that they are concerned that they would not be able to prove that he lied, his argument is that, well, he already pled to it. It's a little bit circular because follow me here. Yeah. The question initially was Flynn was trying to withdraw his plea deal. Before the judge ruled on that, DOJ said, never mind, we're just going to drop it. So part of what DOJ in theory had to consider was if the judge accepts the withdrawal of the plea

deal, then they would need to go to trial and prove it. And so the brief saying, well, they don't need to prove it because he already pled to it, kind of assumes that the judge was never going to let him withdraw his plea deal, which has actually not been decided. Right. Which again, he doesn't really address in this. Well, it's just he like he's it's basically like mocking snark of like, He just, he like, he's, it's basically like mocking snark of like, you don't need to prove it. He pled to it. Yeah. Yeah, I know.

But that's actually not the only thing in question here. Well, and the other thing, you know, that was unnecessary mocking snark because other elements of the brief actually go through the facts quite precisely and demonstrate not just that Flynn lied, but that he lied even when, and this is something that I think an awful lot of people have not understood about the whole exchange, that he lied even after he'd been given prompts by the FBI of what he actually said. So during the interview, according to this brief, he's kind of prompted with his actual words, you know, according to this brief, he's kind of prompted with his actual words and he continues to persist in the lie. And so, you know, he does make the very excellent point that you don't need

to have fooled the government to have lied to the government. Like the fact that the FBI agents knew he was lying is not actual evidence. Like you don't need to have them be like, I didn't know he lied. And then when I found out, it was a real problem. Well, and federal defense attorneys have for years said, well, if the FBI knows you're lying, then how can it be material? How can the lie be material?

And that's an argument that courts have rejected. And the DOJ has opposed. Forever. rejected and the DOJ has opposed forever. And so that's the strength of this brief. I agree with you that when it gets to the perjury segment of the brief, I think the best that can be said for the perjury case is that the government doesn't really make out a case for the kind of coerced confession that would typically excuse a coerced confession is going to excuse a reversal on a guilty plea. If you say, you know, I was subjected to this extraordinary threat and I had no choice but to say this wrong thing, well, then that's a coerced confession and nobody would,

you know, you're not going to be prosecuted for perjury for that. I think the best you can say is that under these circumstances, you can't make that kind of coerced confession argument. But I agree with you. And in fact, it contradicts something that Sullivan himself did in the December 2018 sentencing hearing when he explicitly gave Flynn an opportunity to go back on his previous guilty plea, which was entered under oath. And he said, look, I don't want to sentence somebody who isn't guilty and who believes they're not guilty. So I'm going to swear you back in. And I think that's the part where Sullivan has gotten ticked off. That's the part where Sullivan got ticked off because he said, hey, look, I read your sentencing memorandum if you're not guilty and if the FBI violated your rights. So let's be super clear about that. I think that's what has, to me, it's so obviously set

Sullivan off about this. So it sounds like, I mean, we may not agree on all of this, but the facts as laid out were helpful in the brief. The rhetoric around it was very unhelpful and made it then less persuasive that he had provided all the facts to me. Why that is important, by the way, is because the D.C. Circuit is hearing oral arguments tomorrow about whether this is even a thing, if you will. Because DOJ filed a motion to dismiss charges against Flynn. Sullivan has resisted. He asked for this brief from an outside party. It was going to drag out the proceedings. And so that question is now at the D.C. Circuit of whether Sullivan has the discretion to delay or question the prosecution decision to continue the case.

That is being argued tomorrow. And I think when you have a brief like this that's over the top and loses its persuasive value by being too much of an advocate for something. I think that undermines what Sullivan wants at the DC circuit. Right. Yeah. That's, I think that's a good point. I think that's a very good point. Yeah. I, you know, I think my theory all along was that Sullivan was going to just read the government, the riot act and dismiss the case anyway. That was, that was going to just read the government the riot act and dismiss the case anyway. That was my theory all along, that he wanted to have his opportunity to lay out why he thinks what the government was doing was wrong. But D.C. Circuit Court authority is pretty strong, although I think as a technical matter, they're right about their interpretation of Rule 48.

I think as a technical matter, they're right about their interpretation of Rule 48. It still is unusual to just go ahead and reject a government effort to dismiss a case. So I long thought he was going to rant, be very angry, explain to the public, the world, and the larger universe all of the reasons why he thought this was bad but dismiss anyway um i'm not so sure now that the dc circuit has like i know that's the problem he like he like bit off a little more than he thought he bit off yes like oh now we're at the circuit court yes not what i meant i just meant to like make this a little more painful but now we have all these outside people involved in the fire departments here and and this April Fool's prank isn't going the way I thought. Yes. Oh, yeah. This is one of the most unusual cases. It might be the most unusual case I've ever followed, criminal case that I've ever followed.

Well, I won't be able to listen to the argument tomorrow, so maybe you can fill me in. You know, how about if I give you periodic texts? That'd be great, yeah. Yeah, yeah. You'll have your phone by your side. It'll be fantastic. Okay. Frankly, my dear, I don't give a damn about the New York Times scandal. Yes. Do you want to go first? No, you go first. Okay.

I don't care. All right. I have been thinking about this more than I care about it, if this makes sense. But I've been thinking about it from the angle of why don't I care about it. thinking about it from the angle of why don't I care about it? And when I talk about the New York Times scandal, we're talking about how they took the Tom Cotton op-ed that advocated for the invocation of the Insurrection Act to bring order to American cities. There was an enormous internal revolt at the New York Times, which resulted in the New York Times opinion page editor resigning his position. A lot of internecine fighting that pulled in. Some of it pulled in my friend Barry Weiss, who, by the way,

Barry is just one of the loveliest people you'll ever want to meet. And I hated to see her get just dragged the length and breadth of Twitter for objecting to the way the New York Times handled this. and breadth of Twitter for objecting to the way the New York Times handled this. And I think that my problem with this is it's one of those examples of where we journalists often are endlessly fascinated by stories about ourselves and can misplace it, its relative importance in the context of the time. And this scandal took place in a week in which the President of the United States, the most powerful man in the world, threatened to invoke the Insurrection Act,

sending troops under his command into cities across the United States over the objection of the governors and mayors of the states. That's a very significant move. Immediately after threatening that, his administration ordered, or as he was threatening it, his administration was ordering and executing a violent attack on peaceful protesters in Lafayette Square. A senator who has the president's ear on these matters was tweeting out note that active duty troops should give no quarter to the anarchists, looters, Antifa, et cetera. At the same time, this person, this senator, U.S. senator who has the president's ear then is making an argument in The New York Times. It's quite frankly really sloppy and bad for invoking the Insurrection Act. And there's a lot of evidence that this senator and the most powerful man in the world are kind of losing their cool and losing their composure in the face of what was happening across the United States.

All of that is really big stuff in my mind. And then immediately following that, you have the Secretary of Defense that the president had appointed, possibly the single most respected retired service member in the whole United States of America who saw President Trump up close coming out and publicly condemning not just the Lafayette Square attack, but making an indictment of the president's entire leadership style. And then, bam, all of a sudden, journalism is obsessed for the next four or five days about whether or not the op-ed page, the opinion page of the New York Times is too woke. Now, I have opinions about whether or not it's too woke, but compared to what was happening in the rest of the United States at this point in time, I just, I quite frankly couldn't believe

the amount of attention we're giving it. So that's my position. I think that is also my objection. Although I'll add in that I found some of the generational conversation annoying. You know, this is now the millennials taking over and forcing more accountability on this older generation, yada, yada, yada. Again, of all the things to talk about right now, and I'm not even sure that's accurate of what was going on at the New York Times. I just found myself glazing over. And yes, a lot of things have changed, but a lot of it's social media and that journalists can now air their grievances on Twitter or wherever else. And then if it turns out that a lot of people also share that opinion and their bosses see it like, yep, that's how that's going to go.

Um, and that's true in a lot of industries, but the only difference is that journalists get to cover themselves. And so it becomes a national conversation in the way that other industries don't, well, they probably don't want the attention, but don't get that level of attention. It's a little bit of my version of like when a hurricane hits New York City, the whole world has to stop and like, you know, worry about New York City and it becomes like, oh my God, this thing happened. Whereas like a hurricane hits Houston every 10 years and no one notices.

Yeah. That's how I feel about some of these journalism conversations. Now, I find them interesting in another sense, like a long-term sense, but to your point, the like four-day obsession with it, I'm sorry. One other thing.

I can't get into it. One other thing. Okay, and this is just the way the world changes. Five years ago, I can't get into it. One other thing. Okay. And this is just the way the world changes. Five years ago, four years ago, whatever, conservative media could, to a greater or lesser degree, look at what was happening in a lot of more progressive outlets or mainstream media outlets that have a predominantly progressive staff and call it the awokening, whatever you want to call it, you know, the rise of the sensitivity readers and all of this stuff to make sure that you're not triggering

your readership. And there was a lot of ha ha ha, what on earth? Look at this, the demise of journalistic standards. Well, what's the health of conservative media, Sarah? Free marketplace of ideas, absolute anything goes exchange of ideas. Oh, my gosh. I mean, we have everything from the famous Salem admonitions to their hosts in 2016 about Donald Trump to sensitivity reads, sensitivity reads happen in conservative media. Sarah, they're not sensitivity reads to see if you're offending trans people or if you're offending African-Americans or if you're offending LGBT folks, they're sensitive. Sensitivity reads to see if you're offending Trump supporters. These things happen. These things happen in conservative media. And so it's a little rich. It's a little much for me for to see the whole conservative media world rise up and say, well, look at the awokening. Ha ha ha. And I'm thinking, what about your trumpeting? You know, is the trumpeting better than the awokening?

So is the trumpeting better than the awokening? Can anybody hold a mirror up to their own business anymore? And just for the record, we do not have sensitivity reads at the dispatch. That you know of, David. That I know of, yeah. But I don't know. I don't know if you had that thought, but at this point, I'm so, you know, when you have a censorship movement in government control of social media companies movement on the right, when you have, you know, the trumpeting of conservative media, when you have sensitivity reads to avoid triggering Trump supporters, all of that going on on the right. And then you're going to the New York Times, which frankly is in charge of its own business. Like the op-ed page is in charge of its own business.

And just like, oh, you people, you don't like free exchange of ideas. I'm over it. I'm over it. I'm really over it. Here's my punchline on this. It's the op-ed page of the New York Times. We don't lack for places for people to get their ideas out in the modern era. So I think the New York Times made a mistake, probably.

I think they should have published an op-ed by a senator who has the ear of the president, even on something that I disagree with. But if they don't want to, I'm also not concerned that I'm not going to hear Tom Cotton's point of view or that it won't get a, you know, honest hearing elsewhere. And so maybe that's why I just don't care. Yeah, that's a good point. I, you know, I, yeah, that's a very good point. He could, there are any number of, and the other thing that's interesting about this is had they rejected his submission, this wouldn't be an issue at all. It's not an issue at all. Okay, let's talk about the next, our fun topic. It's sort of fun. Sort of fun.

Max pulled Gone with the Wind. And this caused similar levels of breathlessness among some conservatives on the interwebs that this was another form of cultural censorship, etc. I have watched Gone with the Wind no fewer than a dozen times. No fewer. Probably many, many more. Back in the day when it was four cassettes or VHS. Yeah, yeah. And so you'd have to like switch them out and you'd get the little, it would have like basically Atlanta burning and then it would be like switch to the next tape. Yeah. So I have lots of memories of this. Here's what I find interesting, though,

for HBO Max on the one side. Gone with the Wind does not glorify antebellum South, and certainly not everything that happens after or even during the war. So it's a weird choice for them in some ways. If anything, it's far more reflective of, you know, Hollywood in the 1930s, I think. You know, I, so I saw Gone with the Wind probably the first time in high school. Quick question. If you're such a Gone with the Wind fan, Gone with the Wind, probably the first time in high school. Quick question. If you're such a Gone with the Wind fan, do you let the full intermission roll and go, you know, pop popcorn,

you know, maybe microwaves, a hot pocket? I should explain why I've watched Gone with the Wind so many times. I'm not sure that it's because I'm the biggest Gone with the Wind fan, although Clark Gable holds such a place in my heart, I cannot tell you. In elementary school, it was like the one adult movie that my best friend Melissa and I were allowed to watch. One time we found Dirty Dancing and the parents were not amused that we watched Dirty Dancing. We were allowed to watch Gone with the Wind as much as we wanted. And so we just watched it so many times, like every weekend. So that's why I've seen it so many times. And I mean, no, I think intermission was normally like, no, we just took it out, put the next one back in. I mean, we probably weren't allowed to make popcorn. This is back

when you had to make it on a stove. You know, so watching it as a lifelong, as a Southerner who, and I've written about this before, you know, all my ancestors were Confederate soldiers and officers and a Civil War history buff. I mean, like, oh my gosh, Sarah, the number of Civil War military history books I've read is ridiculous. But what it captures, I think, that was true to life is you reap what you sow. And there is this element of Gone with the Wind, which is there's sort of this, when the war is starting, this spoiling for a fight. You know, this spoiling for a fight. And look, the South fired the first shots at Fort Sumter. And there was this element in the South of spoiling for a fight. And it's not too far

into Gone with the Wind when you then see the endless line of casualties at the military hospital, just this stretching out. And it's one of the more iconic scenes in all of Hollywood. hospital, just this stretching out. And it's one of the more iconic scenes in all of Hollywood. Exactly. Yeah. And you, they spoiled for a fight and you got a fight and much of the rest of the movie is just the, the awful consequences of reaping what you sowed and everything from the, just the, the collapse and the destruction of the Southern economy, the chaos of postbellum South. It is, I mean, I've- Well, and Rhett coming in as a carpetbagger, basically. Right, right.

And making money. And so then they end up rich. I mean, there's the macro level societal elements that it does, I think, a pretty good job showing, again, and not a positive light. And then there's the micro elements of reaping what you sow which is everything to do with scarlet and red yeah right like these are not you don't aspire to be uh either one of them although again ret maybe um but certainly not scarlet well i and and i think it's just undeniably true if you're remaking gone with the wind you would not portray you there would be a lot of different ways you would portray antebellum south and the real you know there's you would it would be portrayed very differently but the the core element of it of you reap what you sow is so obvious through it and also it should be noted that ashley and melanie are two of the most annoying

characters in all of literature and cinema uh and so you do also suffer through the other side of you know the the alter egos of scarlet and ret of the like simpering nice every oh i'm just so kind and like that doesn't work either. So this is all to say, I don't care that HBO Max took it down. I am not offended in the slightest, but I do wonder if they'd seen the movie. Yeah. Yeah. I mean, I have my concerns about, and I've voiced them many times, I believe in a culture of free speech. But a culture of free speech is multifaceted, and a culture of free speech also recognizes the autonomy of private organizations to engage in the marketplace of ideas the way that they want to. And then I have the autonomy to say, well, you know, I disagree with HBO Max, or I think that the New York Times op-ed page handled it poorly.

But as you said, I don't think we lack for opportunities to hear from people right now. I'm also not sure how many people were dying to watch Gone with the Wind this weekend. Was there some moving up the charts of Gone with the Wind where people were like, man, I just really need to see Bonnie Blue fall off that horse? Can I end with one last, not really rant, but kind of observation? That was a spoiler alert, by the way. I should probably have put that in there. Yeah, come on, Sarah. Spoiler alert, if you watch Gone with the Wind, the South loses.

Um, spoiler alert, if you watch Gone with the Wind, the South loses. Caleb, our producer, just threw his hands up. So let me end with one other thing. A lot of what people are complaining about is not that they cannot speak. It is that they cannot speak without harsh criticism. And when you drill down to a lot of sort of the conservative complaints that you hear about free speech nowadays, it's not really that I truly cannot speak because the history of First Amendment litigation in this country is basically like W after W after W. I mean, it is look at the Supreme Court free speech jurisprudence over the last 40, 50, 60 years. It is very pro free speech. So the government has there's very few occasions where the government is going to be able to tell you to don't speak. But also with the rise of social media, there's a huge explosion of voices that are going to tell you don't speak. They don't have the ability to make you not speak, but they're going to tell you don't speak and they can make your life unpleasant. And I totally, totally, totally get that. I've been the recipient of internet pylons. You've been the recipient of internet pylons. But guess what, Sarah? We're both still speaking.

So it seems. At least to somebody. Somebody still hears this. uh well david i think this marks the end of my last pre-brisket podcast i am signing off slack our our slack channel for the weekend at least which is david's one last thing god bless you and the brisket it's a wonderful time it's a wonderful thing and we I speak for all the listeners. We could not be happier for you and cannot wait to hear the brisket on the pod. And then also to hear the brisket's name. Oh, it's coming. It's coming. It mattered. So the name depended a little on what day he was born. So that's why we've been holding it.

There's some change, but I'll explain it all. If he's born tomorrow, we do have a name for that. Wonderful. Wonderful. Well, as I said, God bless you. God bless the brisket. And listeners, we will hear from Sarah maybe on Monday. But no pressure, Sarah. No pressure. Thank you all for listening.