Advisory Opinions - When the NCAA Met the Supreme Court...

Episode Date: April 1, 2021

As the Houston Cougars and Baylor Bears prepare for their Final Four faceoff this Saturday, our podcast hosts break down Wednesday’s Supreme Court arguments for National Collegiate Athletic Association v. Alston, a case that will determine whether the NCAA’s rules restricting student athlete compensation violate federal antitrust law. Stick around to hear David and Sarah chat about developments in qualified immunity law, how nondisclosure agreements hide sex abuse scandals, and a new civil lawsuit brought by two U.S. Capitol Police officers against Donald Trump. Show Notes: -Supreme Court oral arguments for National Collegiate Athletic Association v. Alston. -Taylor v. Riojas. -Florida v. Georgia. -“The Supreme Court Is Giving Lower Courts a Subtle Hint to Rein In Police Misconduct” by Joanna Schwartz in The Atlantic. -Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics. -Facebook Inc. v. Duguid. -French Press: ‘They Aren’t Who You Think They Are’ by David French in The Dispatch. -James Blassingame and Sidney Hemby v. Donald Trump. Learn more about your ad choices. Visit megaphone.fm/adchoices

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You know I love to spoil my little fur babies put them in the cart deal so good everyone approves only at home sense you ready i was born ready Welcome to the Advisory Opinions Podcast by popular demand, Sarah. And actually by our demand, we're going to begin this podcast by launching into a discussion of one of the more malevolent forces in modern life. I mean, you know, there's like Saruman and Lord of the Rings and his Uruk-hai. And then there's like the Night King and his army of ice zombies. And then there's the NCAA. You know what, David? After the argument, I, I, Seth Waxman didn't win me over to him winning, but he won me over to a more narrow ruling than I think I entered into the argument with.

We'll have to deal with your conclusion during this podcast because the NCAA, no, okay. I'm just going to save it for when we get there, which will be in just a moment, but we're going to talk about the NCAA. We're going to talk about lots of stuff I don't like, Sarah. We're going to talk about the NCAA. We're going to talk about qualified immunity, developments in qualified immunity that are interesting. And we're also going to talk about non-disclosure agreements. And we're going to talk about

a lawsuit against Donald Trump that I don't think has much of a chance, really, but is worth talking about anyway. But let's just go ahead and start with the NCAA, shall we? Let's dive in. Okay, Sarah, I have over the years written quite a bit about the NCAA. It's been a sort of a hobby horse of mine, and it's kind of boiled down into two areas. In this case that we're going to talk about, this oral argument that we're going to talk about, is in one of the main, it deals with one of sort of two main controversial areas regarding the NCAA. One is name, image, and likeness. In other words, if I'm playing basketball for the University of

Kentucky, which was my dream growing up, I didn't even make my high school team because I was a player ahead of my time, Sarah. I was a three-point specialist before the three-point shot. That was a problem. Yeah, that's a problem. So name, image, and likeness. So let's suppose I'm playing for the Kentucky Wildcats. While I'm playing for the Wildcats, I don't actually own my own name, really. I don't own my own face. You can't charge someone for signing an autograph. Or if you're going to be on a local, you're not going to be able to be paid to be in a local car commercial. In other words, You're not going to be able to be paid to be in a local car commercial. In other words, you essentially, unlike any other student at the university, once you join the university, the university kind of takes over your identity.

And so that's one area where there has been an enormous amount of controversy and push for legal reform. And then the other one is just flat out, is the NCAA able to dramatically limit any kind of compensation that you can directly get from the university for playing a sport for the university? And that's what this case is about. It's not name, image, and likeness. It's more the direct compensation. The case is called NCAA versus Alston. We'll give you the SCOTUS blog link and the show notes.

And essentially what it's saying is that, arguing is that the NCAA's restrictions on eligibility and compensation violate federal antitrust laws because they prevent college athletes from receiving a fair market compensation. The Ninth Circuit gave athletes a minor win. It said that the NCAA could continue to restrict benefits that were unrelated to education.

But when the benefits are related to education, the NCAA had less authority to restrict. So that's the background. That's how we went into oral argument. And the oral argument was really interesting. But full disclosure, we were going to sit here and read some great excerpts from the transcript, but the stinking Supreme Court website has been down all morning while we record. And so we don't get to read all of the spicy goodness from the transcript, but we both took notes. We both have things to still say. Right, Sarah?

We do, but I'm so angry. Although I will note that SCOTUSblog's header right now is making me a little happier because they've changed it to all of the justices in basketball uniforms. Kavanaugh's like shooting, you know, a nice little jumper. It appears that Sotomayor is dunking.

Gorsuch is doing some really good ball handling. And of course, Roberts is the umpire. I'm saying umpire because that's what he said in his thing. I know that it's a referee, but still. Okay. So first I want to talk about Seth Waxman as an oral advocate because I thought his style was quite different than a bunch of other folks who appear before the court. Seth Waxman, so that you guys understand, I had this little debate with Scott last night. Is Seth Waxman the most famous current oral advocate or is it Paul Clement? I think it's a toss up. He kind of

thought it was Paul. I kind of think it's Seth. Paul certainly has more arguments. I'll give him that. But, you know, Seth has over 80. And, you know, I've talked about the explainer posture versus the advocate persuading posture, and that I think the explainer posture is a better posture. Look, Seth went into this with a tough row to hoe, no question. He had a... Sorry, Alexa thought I was talking to her. Seth went into this with a tough row to hoe. He knew where he needed to retreat to. I thought he did that all very well. He's incredibly experienced. But here's the part that I found really fascinating. Here's a guy who the justices know. They know well. They see him frequently. You would expect a certain level of familiarity between folks who know each other that well in a professional setting.

And instead, his thing is to do the opposite, to be incredibly formal with the justices. So as many of you have probably seen, there's this great back and forth that more or less starts the whole thing. So Justice Roberts asks his series of questions. whole thing. So Justice Roberts asks his series of questions. So obviously, Seth Waxman is saying, yes, Mr. Chief Justice, Mr. Chief Justice this, Mr. Chief Justice that. And then it goes to Justice Thomas, of course, because we're still in Zoom arguments, remember? So this is going in order of seniority. Justice Thomas ends his question with, as the Chief Justice just said. I say all this because what Seth then says is, Mr. Chief Justice, the amateurism rules.

Justice Thomas, thank you for the promotion, by the way. Big guffaw. Waxman, I'm sorry, but I'm sure you would be terrific at that. Chief Justice, there's no opening, Mr. Waxman. At which point, what Waxman does at that point, right? Like there's, um, there's all this stuff that people will tell you about being funny at the court. And basically the rule is don't be funny at the court. You're the straight man. Let the justices

have the gag, especially the chief. He's actually a pretty dry, funny guy. And in this case, I mean, there's no opening. Mr. Waxman is a great, great line. But still like your instinct at that point, I think just as a person in a conversation with people, you know, well, professionally is to sort of lean in on the joke. And instead what Waxman does is in fact, become more formal and say, I don't think there's anything else I could say that wouldn't get me into trouble, so let me continue answering your question, and then launches right back in. I mean, that's the most stark example from the argument. But throughout, again and again, he reverts to formalism with the justices. I thought it was very effective, actually,

because the buddy-buddy stuff, I think, has both a potential to backfire with the justices themselves, but would sound kind of crass to even us listening. At one point, Justice Gorsuch asks this long question. Waxman gives his answer. And then Justice Gorsuch goes, I don't think you answered my question. And again, instead of going like, huh, well, let me try again. He goes, well, then that is my fault. Let me attempt again. You know, like it was very formal answer and, you know, Gorsuch is pretty informal at that point. And he's like, nope, let me, let me try to rephrase and you know, whatever he goes, I hope I have done a better job this time addressing your question, Mr. Justice, you know,

like very, very formal and it worked for me. Uh, so if you want to hear some great advocacy on a losing case, which I think is really fun, like Waxman knows how hard this is. He's going to retreat back to history. He's going to retreat back to amateurism. All things that then Kagan in particular is going to beat him up for and say, the history, like, I don't care. A lot has happened in a hundred years. Stop talking about the history. Amateurism, I mean, that's a cute term, but that's not even, you know, meaningful at this point. The way you talk about amateurism, she says,

it sounds awfully high-minded, but schools that are natural competitors have all gotten together in an organization to fix athletic salaries at extremely low levels. So his two main arguments are getting blown out of the water over and over again. And by the way, when you go in with a losing case, they lost at the trial, they lost at the circuit court,

they're going to lose at the Supreme Court. They know that. You're just trying to limit the blood loss. That's where you want a surgeon like Seth Waxman, I think, arguing your case with a ton of experience in how to navigate these intricacies so that you lose by the least amount you can. I think, again, with the cards he was handed, one of the better arguments I've heard this term, maybe the best. Yeah. One of the good... I mean, I do think he did an excellent job.

I also think that Jeffrey Kessler made a really good point in his section, in his segment of the argument. And this is one that was also highlighted by Amy Howe. I like it when Amy and I find the exact same, we find the exact same segments. And that Kessler told the justices that, you know, the NCAA has been frequently trying to get courts to take a hands-off approach by predicting, and this is quote, economic competition among its member schools would destroy consumer demand for college sports. And then as Kessler notes, every time the court struck down restrictions, courts were correct and demand for college sports has continued to flourish.

But one thing that, you know, if you know, it's really interesting to read this, if you really closely follow college sports. And that this whole idea that the NCAA has put forward for a long time, that wait a minute, if we're introducing like economics in the sense of, you know, big budget schools are really going to, you know, limit competition. I'm thinking, where have you been? Because if there's one thing that you know about college athletics, it's that it's been an economic competition for a really long time. I mean, it's like, what planet are we living in, Sarah, if we don't think that right now, what you have is a massive outlay of economic expense to gain competitive advantage.

And the only people who are not really benefiting from that, other than in any way that's proportionate to their contribution, are the athletes themselves. Go look at Alabama's football facilities. go look at Alabama's football facilities. Yes, but this affects all the schools, not just Alabama. The vast, vast majority of NCAA athletes are not in the Alabama first string football program. They're rowing crew at a school you haven't heard of. They're in the sailing team in some very cold place.

Well, and for them, life is going to stay the same because their sport is not... Maybe yes, maybe no. Their sport is not an income generator. Their sport is an income recipient. Yes, but remember these other cases where the athletes are unionizing. Well, if they're unionizing

and the athletes can be paid in this case, the question is whether the athletes can be paid in this case uh the question is whether the athletes can be paid up to five thousand nine hundred and eighty dollars per year if they unionize and then they have to pay every athlete that amount of money that's real by the way cavanaugh like when waxman's talking about this he's like five thousand nine hundred and eighty dollars finally cavanaugh so he's like pretty toward the end of $5,980. Finally, Kavanaugh. So he's like pretty toward the end of the line here in terms of questions. And he's like, I'm sorry, is anyone,

that's not a lot of money. What are we talking about? Yeah, exactly. Okay, but legally, there's another issue with this that, interestingly, I don't think Waxman made as forcefully as he could have, perhaps, but I thought Breyer helped him quite a bit on this point.

So they lost at the trial level, as I mentioned, and part of that was because of a survey about whether folks would still be interested in college athletics if they were no longer pure amateurs. If they were paid, they checked various amounts, but up to $10,000. And, you know, everyone can use data for their own purposes. Basically, 10% of people said they would be less interested in watching college athletics if the athletes were being paid,

you know, thousands of dollars. So on the one hand, it's like, okay, but 90% of the people said they wouldn't be less interested. But under the antitrust law, you have this rule of reason about joint ventures, because joint ventures are different. In order to have a joint venture of any kind, you're going to have to have some constraint on competition because you have two organizations at minimum working together. So you have Justice Gorsuch, by the way, using the word monopsony over and over again, which is, I mean, very Justice Gorsuch instead of just saying like a monopoly. A monopsony is actually the opposite of a monopoly. A monopoly is where the multiple buyers only have one seller to purchase from. A monopsony is where multiple

sellers only have one buyer. In this case, all of the athletes only have the NCAA. But you get to this widget problem, right? And this is Breyer's point. Okay, but that poll just shows that, yeah, you can sell yellow widgets and 90% of the people are fine with this type of yellow widget. And the NCAA is saying, yeah, but we don't sell yellow widgets. We want to sell purple widgets. So it doesn't matter what that survey says. What we're describing with amateur only sports is what our product is. And so the rule of reason is sort of this, like you always win antitrust test because it's like, look, if it's a joint venture and they're saying they're selling purple widgets, you got to kind of let

them sell purple widgets. But of course, there's so much unique about this case, which is that there's no competition. There's no yellow widgets. There's nothing else. And they are talking about not paying their labor force at all. And the labor force has nowhere else to go. And Justice Thomas made that interesting point about the insurance. I don't know whether you found that compelling at all. I kind of didn't. I'm interested if you want to explain it. But of course, these kids do get, this is my favorite Barrett point. She's like, but you are paying them. You are paying them through their education, through their tuition, through their room and board. And he's like, yeah, but we explicitly say

we don't define pay as including that. And she's like, why do you get to define what pay is? Yeah, exactly, exactly. And he's like, because we get to define what pay is. And she's like, what? Yeah, so this is the thing. Okay, so I found that, Roberts talks about the insurance policy thing is

colleges and universities are allowed to pay up to $50,000 to obtain a $10 million insurance policy to protect future earnings of athletes in case they suffer a catastrophic injury. that's really only meaningful to a very small percentage of athletes, a very small percentage of the revenue-producing athletes here. So, like, when Tua injured himself, did he get to cash in on that insurance policy? I'm super confused about this insurance policy. I don't know that he...

I doubt that he did, because he went ahead and was a top-ten pick. But he wouldn't have known that when he goes into surgery. True. I don't, I'd have to know, be familiar with the terms of the insurance itself. But I seriously doubt that he cashed in.

And I bet you anything, a reader, considering this is Alabama football, and I'm sure, and I know, there are readers who are going to probably send me the insurance policy. So thank you in advance for that. So, I mean, that's a form of compensation. But the Barrett point, yeah, there's compensation all over the place here at every layer.

And essentially, that's the part here that I think the NCAA has a real problem with. To say that the athletes aren't compensated at all, you really have to twist yourself into a pretzel because everybody knows if you go into a workplace, benefits are part of your compensation. It's not just that you say, okay, so what's my salary going to be? You also want to know about all of the benefits. And the benefits are part of compensation. And so what the NCAA is essentially saying is we're going to give all these various benefits. And some of those benefits even include cash in certain circumstances. But that's not compensation.

No, essentially what the NCAA is saying is not that in reality what the ncaa is saying is not that we don't compensate it's that we barely compensate and we want to keep it that way and that's where i think the justices have this problem it was fascinating argument to me because there was so little law actually involved yeah it. It was a lot of like, yeah, but you're making billions of dollars and your coaches are making millions of dollars and you're not paying these kids. Come on. Yeah, it was. And what was fascinating about it compared to other arguments that we have been analyzing, other arguments have been parsing, precedent. They have been sometimes history lessons.

Everybody's a textualist now. This was like, everybody watches ESPN and has an opinion. Yeah, it really was. I mean, Barrett was like, you know, and look, based on my own personal experience, and you just like Kavanaugh during his questions, all I can think of is him coaching his girls basketball team. Uh, everyone had an opinion. I thought that Kagan whittled down on the law the best. And I wish that I had the transcript so I could read it to you literally in my notes. It's like read Kagan's opening. So

that doesn't do me any good. Um, And then Kavanaugh. So if you're going to go back and read, I do like Kagan and Kavanaugh in the Waxman argument, and then maybe some Breyer and his widget thing whenever the Supreme Court website is back up. So obviously, the NC, so they come in with a bad posture. They lose at the trial court level. And frankly, a lot of this is fact-based. And the Supreme Court is not going to reconsider the facts that the trial court found. The only question is sort of this rule of reason, light touch on joint ventures. But what happens when it's not a joint venture in the market, but the only venture in the market? Yeah, so they're not in great shape.

I know that a lot of the headlines were, Justice is skeptical about NCAA, for sure. But there's a reason that you're not seeing a lot of guesses on how this is actually going to come out, because antitrust law, as I've said before, is entirely made up. Who knows? This could just be feelings on basketball, according to Justice Kavanaugh, as far as I can tell. That sound you heard was our nine antitrust lawyer listeners saying, it is wrong. It is not made up. I don't know.

I've talked to some of our antitrust listeners, and they're like, it's kind of made up. But I like the way Amy House summed up kagan's objection which i think really just gets to the heart of it it was it was the best summary of the whole case yeah this is what this is what how how how described kagan she says uh what the case boils down to she suggested is that schools that are naturally competitors have all gotten together and used their power to fix salaries for college athletes at extremely low levels. Yup. That's it. That's it in a nutshell. Because Alabama and Auburn, you don't get more naturally competitive than that.

And in the absence of the NCAA, and the interesting thing is you see this reality in all the areas where they're not capped. So in all the areas where they don't, they're not required by the NCAA to fix salaries at a low level. You know what they don't do? They don't fix salaries at a low level. An amicus brief identified that coaches were the highest paid state employees in 39 out of 50 states. 39 out of 50 states. You know what? Justice Thomas went down this road and it was an unproductive road to go down because he tried to use that as proof that clearly they are capable of doing this.

They don't care if the coaches are amateurs. And they're like, no, we'd love for the coaches to be amateurs. In fact, we did require the coaches to be amateurs. And then a like, no, we'd love for the coaches to be amateurs. In fact, we did require the coaches to be amateurs. And then a court said that we couldn't do that anymore. So, yep,

that's what's happened. And Justice Salma's like, oh, okay. So it's not proof of their hypocrisy that they pay the coaches so much. That's a court ruling. I think that...

But it also demonstrates that their alarm about the popularity of college sports in the arena of dollars, that coaches have been paid a ton for a while. In March Madness, people still love it. It's important to remember in this case, though, and I think it was Justice Kagan who made this point, they could have sought more relief at the lower court, the people suing the NCAA. But in fact, this is all about whether you can pay them a max of $5,980 per athlete. This is not dismantling the NCAA. This is not, you can now pay the athletes $30 million for Tua.

That's an interesting part of this case. Now, yes, the precedent will be really important to those questions, but this is pretty narrow. And made up, right? $5,980 is not in some statute. It's made up entirely by the trial judge. Yeah. not in some statute. It's made up entirely by the trial judge. Yeah. And well, you know, that's interesting because this is a, this was an interesting aspect of it was how many,

how many times we're going to have to come back up? Is it going to be, okay, we're going to, another judge says it's 10,000. Another judge says it should be 20. You know, how much, how much micromanagement? It's going to like, I thought he made a really good parade of horribles. The parade of horribles doesn't often work at the Supreme Court. I don't think they loved him explaining the parade of horribles. But when you listen to his parade of horribles, you were like, well, that does sound annoying. Basically, these cases are going to end up in court over and over and over again

and over and over and over again some more because we're going to keep ratcheting up the money. Well, why 5,980? Why not 6,000? And so unless the court wants to become the arbiters of student athlete pay, they need to come up with a narrowing rule. And that gets to my point that I said at the beginning, David, that Waxman won me over on that point. You do not want courts setting this. So either it's a free for all, or there is some limiting principle about amateurism

that can still be in place. But this idea of we're going to have all these cases like nitpicking whether it's 59 cents or 58 cents, that's not going to work. Free-for-all. Free-for-all. Free-for-all. Okay.

One last thing before we go on. I just on this competitive balance point of this parade of horribles, like, oh no, there's going to be a lack of competitive balance. Okay. Here's most recent champions in NCAA football. Alabama, LSU, Clemson, Alabama, Clemson, Alabama, Ohio State, Florida State, Interlopers, then Alabama, LSU, Clemson, Alabama, Clemson, Alabama, Ohio State, Florida State, interlopers, then Alabama, Alabama, Auburn, Alabama. Yeah, there, five programs that have won five or more titles, UCLA 11, Kentucky 8, North Carolina 6, Duke 5, Indiana 5. We'll pull UConn into that elite level at four.

No other program has won more than three. There is not competitive balance in the NCAA under the present system. It's a money-making, imbalanced machine that is explo I think that the Supreme Court was looking at that, knowing that, and Alito even said that these folks are often used up and discarded. Because not all these guys and not even a majority of these guys go on to the NBA or the NFL. I have one of my cousins, he played, he was a starting defensive lineman for Mississippi State University in the 1980s. That football career absolutely impacted his body for the rest of his life. And he didn't have the NFL. So yeah, it's... I hear you. And what you're talking about is your feelings about basketball. And again, I acknowledge the antitrust law is mostly made up, but that competitive part isn't really in the rule of reason.

This is just about the joint venture and whether they're selling amateurism. Is that the widget? Or are they selling something else? My feelings are facts, Sarah. And law, I suppose. Soon to be. So whether Alabama wins every championship, that doesn't matter to what the NCAA says they're selling. Well, all I'm going to say is on my side, I think I have nine people in black robes who share my feelings. We'll see. DQ presents how to officially start your summer.

Step one, head to the perfect spot to kick off the season. DQ presents How to officially start your summer Step one head to the perfect spot to kick off the season DQ step two try the new summer blizzard menu I mean summer is right there in the name in step three dig into flavors like new peanut butter cookie dough party new picnic peach Cobbler and more because with treats like these every bite feels like you're starting summer off, right? But don't wait these flavors are only around as long as summer is Make the season official with a new summer blizzard menu. Only at DQ. Happy tastes good. Okay. Qualified immunity. Qualified immunity. So we've talked about this several times in the podcast. I wanted to do a quick revisit every now and then to kind of update people on where things stand and to talk about the federal remedy, which is called Bivens. So first up, let's just do regular old qualified immunity. Back in November, there was an interesting development at the Supreme Court. There was

a case from the Fifth Circuit called Taylor v. Riojas. The Fifth Circuit had granted immunity to prison officials who had put an inmate for several days in a cell covered floor to ceiling with feces of the previous occupant, then moved him to another cell that was kept at freezing temperatures where a clogged drain on the floor caused raw sewage to flood the cell. The Fifth Circuit granted the prison officials qualified immunity, saying it was not clearly established that that was not constitutional. And for the first time in 16 years and only the third time ever, the Supreme Court expressly found official misconduct to violate clearly established law. expressly found official misconduct to violate clearly established law. So is this a huge turning point for qualified immunity jurisprudence at the court? And by the way, I was just quoting a great Cato piece on this that we'll put on the notes by Jay Schweikert. On the one hand, there are plenty of people out there arguing, yes, OMG, look what just happened. This is turning the tide. On the other hand, Jay makes the pretty compelling argument on the Cato website that in fact,

like maybe this is a teeny, like, you know, one small step for man, one small step for man and qualified immunity. Like it's just small because here's what happened. They didn't hear anything about the case. They GVR this. And remember, we've talked about that. That's granted vacated and remanded. So it basically is used when a court, when the Supreme court says, um, Hey, we just had this opinion and you didn't know about that. So we're sending this back down to you in light of this new opinion or where sometimes a circuit court quite intentionally appears to have ignored Supreme Court precedent and gone rogue. They will sometimes GBR a case in that. But this doesn't fit into those categories. So

why did they do it? Interestingly, Alito writes a concurrence. It's like, why did we do this? If you want to take a case, take a case. If you don't, don't. But this doesn't fit why we GVR stuff. Another fun little nugget in this is that Justice Thomas dissented. But there's no dissent. It's just Justice Thomas dissented. So why did Justice Thomas dissent? Is it because he wants to get rid of qualified immunity entirely? No, maybe. It probably goes back to that dissent he had before where he said like, hey, waving his hands, can anyone actually go do some really good historical digging on what common law qualified immunity looked like in the history of qualified immunity before 1871?

And I'll just make a little plug because it turns out someone did do that and their name is Scott Keller and it's coming out of the Stanford Law Review shortly. So maybe that's why Thomas dissented. He's just super pumped about Scott's law review piece. We will see. I think that's the only reasonable conclusion.

I think so. I'm pretty sure. So then fast forward to just a few weeks ago in February, they did the same thing. So this was a circuit case again, where a prison official was alleged to have gratuitously assaulted an inmate with pepper spray. They GVR'd it again. This time, no opinion, no PC opinion like in Taylor v. Riojas, no concurrence, no dissents, opinion like in Taylor v. Riojas, no concurrence, no dissents, just pure order GVR. But David, the reason I wanted to talk about this a little is we have all these qualified immunity cases that are going up on cert petitions. They're not taking any of the cert petitions. They're not

hearing any cases about this time. And again, they just get denied. And then we're getting these weird little GVRs that are like, guys, obviously that, you know, doesn't need to be exact to be clearly established law. There's like a common sense part to this. Please use common sense. Also interesting that they're both fifth circuit cases. Yeah. You know, this, this is interesting. And it's one of those things where it's one of those, those shifts where it, you might be reading too much into it, but you might not. I know. that it had scolded lower courts for requiring too much, it scolded lower courts for not requiring enough particularity. In other words, it did not want to say, here's the exact quote, again, it is again necessary to reiterate the longstanding principle that, quote,

clearly established law, unquote, should not be defined at a high level of generality and instead should be particularized to the facts of the case. So that's 2017, which is really sort of reiterating this, what our friend Judge Willett calls qualified impunity. Har, har, har. Yeah, unqualified impunity. Sorry, judge, unqualified. Qualified immunity, smacks of unqualified impunity. Couldn't agree more. So in essence,

where you're having to do things like find a case in your jurisdiction that is really, really on point to show that officers were on notice that exactly what they were going to be doing violated your civil rights. And then to go ahead and sort of say, okay, but wait a minute, for the first time, as you noted, in a long time, we're going to say, but this was obviously unconstitutional. But why is it obvious? And I agree if If you're kept in shockingly, and I quote, shockingly unsanitary cells, covered nearly floor to ceiling in massive amounts of feces, yeah, I'm going to agree that's shocking.

That's obviously unconstitutional. But what about sicking a police dog on a man who'd surrendered with his hands in the air what about stealing money what if you're shooting at a dog that's not threatening and you hit a 10 year old boy like

these things are kind of obvious too and yet qualifying immunity was granted cert was denied in these cases. And these are examples that I've used before. These are examples that are in a great Atlantic article by Joanna Schwartz that we can put in the show notes about qualified immunity. But it really, at the risk of saying we're over-reading, if the Supreme Court is going to make a shift on qualified immunity without overruling qualified immunity or reversing it, this is how they do it. Is just by starting to sort of revise the level of particularity required.

of particularity required. And if they do it this way through GVRs, they're doing it in the least splashy, like very few people are going to write about it. GVRs are really used more as a signal to the lower appellate courts of like, hey, you got this one wrong, rethink this, versus having a whole opinion. Like in McCoy, we didn't even get any opinion.

It's just you got it wrong and you can try to figure out why. So it's interesting. It's just you got it wrong and you can try to figure out why. So it's interesting. It's an interesting flag, but I don't think it will do much or mean much unless they take a case and actually write it out, you know? Well, yeah. I mean, it's entirely possible that what we're seeing is the beginning. And this, again, with full knowledge that we could be overreading this, that the beginning of the creation of undead doctrine. So, like, there's particular cases and doctrines that are like zombie doctrines, like the Lemon test and establishment law.

Increasingly, there are aspects of Employment Division v. Smith, my most loathed of recent court opinions that have become, in essence, sort of like zombie doctrine just because it's not nearly as expansive as it used to be. And there's a process that occurs when a doctrine becomes sort of undead doctrine. It's never fully overruled, but it's not nearly what it once was. And this could be the beginning of that for qualified immunity. But also at the same time, I mean, there are still pending legislative, there's pending legislation regarding revisions to qualified immunity. There are state legislatures that are taking aim at their own versions of qualified immunity. So there is some sort of legislation in motion around the country in isolated circumstance, and I don't think the federal legislation is going anywhere, at least not while the filibuster remains. So yeah, I guess the best way to say it is stay tuned.

Well, you talked about undead precedent, and that is a great segue to Bivens. Undead doctrine, yes. That's right. So Bivens is how you can get a remedy against a federal officer. The initial Bivens case is from 1971, and it involved the Fourth Amendment, a federal officer violating a citizen's Fourth Amendment rights. But here's what's kind of weird. There's basically three cases between 1971 and 1980, creating Bivens remedies for fourth, fifth, and eighth amendment

violations. And then poof, it goes away. And yet we all learned about Bivens in law school. We're told that this is a real thing, but it's never been a real thing again. So in last term, and we didn't talk a ton about this case because it was not totally clear where things were headed. So it was February, it was decided. Hernandez v. Mesa, this was the border shooting. So a 15-year-old boy was playing with his friends, running up the embankment on the United States side, touching the barbed wire fence and running back down to the Mexican side. A border patrol agent stopped one of the boys on the U.S. side and the other ran back to the Mexican side. The agent fired his weapon, killing the boy on the Mexican side. The parents brought

a claim against the officer for monetary damages. In that case, it was a 5-4 opinion alito writing the court dismissed the family's claim saying that the cross-border context was a quote new context and if this reminds you of clearly established law it should it's basically the same thing it kills your claim if it's remotely different like oh it was the mexican border well that's a context. We've only done this in the Canadian border. But Bivens is way, way tinier a world than any even qualified immunity. Way, way tinier. So there was a concurrence by Thomas and Gorsuch basically saying like, hey guys, we've basically cabined Bivens into nothing. So we should just get rid of Bivens and actually abandon the doctrine altogether, is what they said, because this is just causing confusion. It's giving people false hope. It's

creating litigation that's going to die. So the question then becomes, okay, you had two votes last term to get rid of Bivens altogether. You've got five votes to limit it so precisely to its facts as to be useless. So what are you supposed to do when a federal officer violates your rights? Two options, right? Like congressional statute, that's not going to happen. Second option. And this, remember we had Will Bode on? So Will Bode just has this great, great idea. I think at this point, we're entitled to wonder if the court is going to abolish the 20th century remedies for unconstitutional conduct, can we at least have the 19th century remedies back? And that would be having state claims against federal officers so that state legislatures could pass laws saying,

against federal officers so that state legislatures could pass laws saying, if a federal officer violates your rights, Texans, you can sue them under state law for a remedy. That's why Bivens was sort of made up law to begin with, was this idea like, well, we don't want the states going after these federal officers, so we'll just create a federal remedy out of whole cloth, which is why, of course, the current court doesn't like it because it's made up. There is no real thing of a federal remedy created by federal courts against federal officers. Okay, but this brings me to an opinion, a dissent from our dear Justice Willett, Judge. He used to be justice, guys. It's not that I'm giving him a promotion. I'm giving him a side motion. He used to be justice. By the way, can that i'm giving him a promotion i'm giving him a a side motion he used to be by the way can i just say can i just offer a complaint judge in case you're listening i know why but you used to be so good on twitter

when you were justice willett now that you're judge willett you're silent you're just silent i think it's a judge honestly um sarah he, he can give his thoughts on the Snyder Cut. That's true. Right? Yeah. I mean, so at least, judge, bring us your streaming recommendations. Please. Something.

Anything. Proof of life out there on Twitter, judge. We need it. Okay. So this is an interesting case facts. I'll just go through it briefly because it's kind of, you know, the things people get themselves into. All right. Kevin goes to visit his ex-girlfriend Darcy at the hospital after she'd been in a car accident. Kevin learns that Darcy, the ex-girlfriend, had been in the car with her boyfriend, Eric, who was driving.

And Darcy told her ex-boyfriend that her and Eric had just been kicked out of a bar when he ran the car into a Greyhound bus. It doesn't say this, but I take it that Kevin, the ex-boyfriend, is pretty P.O.'d that Eric is not taking enough care of his girlfriend. So he goes to the bar to quote unquote investigate. But as he's trying to leave the parking lot, he was prevented by the boyfriend's father, Ray. And Ray happens to be an agent at Homeland Security. So Ray, the dad, pulls his gun on Kevin, the ex-boyfriend, and says, threatened to, quote, put a bullet through his effing skull and that he would, quote, blow his head off. Further alleges that Ray, dad Ray, attempted to smash the window of his car, left marks and scratches on his window. smashed the window of his car,

left marks and scratches on his window. Kevin calls the police and two local officers arrive. Ray flashes his badge and says to arrest Kevin, which they do for four hours. But then they, of course, review the footage of what actually went down.

They release Kevin and arrest Ray for assault with a deadly weapon and misdemeanor criminal mischief. So Kevin sues Ray as a Bivens action. And the Fifth Circuit tosses it because that is a new context. Because while Bivens was a Fourth Amendment case, they basically make the, I mean, this is like pretty, this tells you how cabin Bivens really is. Um, they're like, this took place in a parking lot, but Bivens took place in a home and this, I mean, like, okay. Oh my gosh. Um, so yeah. Uh, I mean, it's pretty funny. Okay. But then you have a willet dissent

and it's a spicy one. All right, let's hear it. Middle management circuit judges must salute smartly and follow precedent. And today's result is precedentially inescapable. Private citizens who are brutalized, even killed by rogue federal agents can find little solace in Bivens. Then he goes on to talk about Bivens being, you know, totally cabin to its facts and that the Supreme Court several times has admonished lower courts that extending Bivens is, quote, disfavored judicial activity, which sounds like double secret probation to me. And then he notes, like, OK, these people then have no remedy. My big picture concern as a federal judge, indeed, as an everyday

citizen, is this. If Bivens is off the table, whether formally or functionally, and if the Westfall Act preempts all previously available state law constitutional tort claims, this is Will Bode's point, if we can't have our 20th century remedy, can we have our 19th century remedy? Do victims of unconstitutional conduct have any judicial forum whatsoever? Are all courthouse doors, both state and federal, slammed shut? If so, and leaving aside the serious constitutional concerns that would raise, does such wholesale immunity induce impunity, giving the federal government a pass to commit one-off constitutional violations. Of course, he throws in some Chief Justice John Marshall from 1803. There's, of course, the issue that, like, putting that debate aside, Congress certainly knows how to provide a damages action, and it certainly smacks of self-dealing when Congress subjects

state and local officials to money damages for violating the Constitution, but gives a pass to rogue federal officials who do the same. Such imbalance seems innately unjust. And here's his kicker. I am certainly not the first person to express unease at individuals whose constitutional rights are violated at the hands of federal officials are essentially remediless. And this is my favorite. I've been thinking about this line for weeks now. A written constitution is mere meringue when rights can be violated with nonchalance. I add my voice to those lamenting today's rights without remedies regime, hoping against hope that as the chorus grows louder, change comes sooner. Mere meringue, David. Mere meringue, David, mere meringue.

So I don't know if you've ever attended a worship service at a Pentecostal church, Sarah. No. But there is an enormous amount of feedback that is given by members of the congregation to the pastor while he's preaching. And it's one of the most encouraging things ever. Like if you're actually up there speaking, it's incredibly encouraging.

But I felt like I was going into Pentecostal mode internally as you're reading that. And we went to a church years ago, and there was this guy, just one of the greatest people you'll ever meet in your life. And when the pastor would preach, after every sentence that he really liked, he'd say, come on, come on. And as, as like, it was like building to this crescendo. It was like, come on. And I felt like doing that, like after every sentence of Judge Willett's dissent, come on, come on, Judge. Yeah, he's exactly, he's exactly right. And I don't think it's because Judge Willett loves Bivens

or wants to bring back Bivens and have lots of Bivensy stuff. I think what he actually wants, based on that dissent, is more the Will Bode point. Like, fine, this was made up. Get rid of it then. But if you don't get rid of it, then we can't even go back to this other thing. So we're in the worst-case scenario right now, a zombie precedent that can't be applied,

but because it's still there, we also can't do anything else. Yeah. Well, you know, and one last thing before we leave this issue, I think it's important for people who are looking at this to realize that, okay, it became a red-blue thing in the aftermath of the George Floyd killing and the push for police reform afterwards. But before that, it was really interesting. This was an issue that was way back-burnered from public consciousness, way out of public consciousness. But amongst those who are paying attention to this, amongst those who are pushing for qualified immunity reform, it's one of the more bipartisan initiatives in modern legal life. If you look at the people who have been filing briefs to try to deal with qualified immunity, it's everybody from my old colleagues at the Alliance Defending Freedom to the ACLU to the NAACP to some of the organizations in the larger Koch worlds. I mean, this is

something that has been social conservative, libertarian, progressive, and everyone sort of has a different state actor in mind when they're thinking about this. So, say in the ACLU world, they're thinking a lot about police and what's happening with abuse of power on the streets. A lot of what's happening in the social conservative world is abuse of power in the academy,

where there has been a proliferation for years of acts of censorship, of speech codes, etc. And there was just recently a case that my ADF friends won out in the Eighth Circuit, where actually the Eighth Circuit denied qualified immunity to university officials who had refused to recognize a Christian student organization. And there was evidence that they committed an explicit act of viewpoint discrimination against this student organization that was trying to reserve leadership for individuals who shared the group's statement of faith. This is a kind of case that I practiced and worked on for years and years and years. And so I'm hopeful, I'm hopeful, although I'm well, hopeful is a strong word.

That's a strong word. basis. But since, according to some polling, the number one issue for GOP voters is support for the police, like number one issue, support for the police, I'm not seeing there being a political solution to qualified immunity anytime soon, no matter how many sort of social conservative or libertarian groups want to see it. All right, before we leave the courts entirely, it was an opinion hand down day today and none of them were that earth shattering. Florida, Georgia line, which is, I mean, that thing has gone up and down and up and down.

Anyway, it's back, original jurisdiction case. So if you're into that, that's the only reason you care about the water fight in Florida and Georgia. There was a case called Facebook versus Do Good. It's spelled D-U-G-U-I-D, so I have no actual idea how to pronounce it. We don't really care about the case, but this was a fun little moment in it. So it's important I give you some background. This statute defines auto dialers as equipment with the capacity both,

quote, this is important, to store or produce telephone numbers to be called, comma, using a random or sequential number generator. Okay. The holding of the case, and this is very important because we're getting into cannons here, cannons, is that an auto dialer is a device that has the capacity either to store a telephone number using a random or sequential number generator, or to produce a telephone number using a random or sequential number generator or to produce a telephone number using a random or sequential number generator. So what they did there is that, remember the actual quote is,

to store or produce, comma, using a random or sequential number generator. And the question was, does that after the comma clause using a random or sequential number generator apply only to or produce or does it apply to store or produce? Or does it apply to store or produce? Like both the verbs. And y'all know I love grammar. I do. So fine. They held that

it applied to both, that the clause applies to both parts, the to store and the to produce in the or. I don't really care about that. But there's this great Alito concurrence in which he says, I write separately to address the court's heavy reliance on one of the canons of interpretation that has come to play a prominent role in our statutory interpretation cases. Cataloged in a treatise written by our former colleague Antonin Scalia and Brian Garner. These canons are useful tools, but it is important to keep their limitations in mind. This may be especially true with respect to the particular candidate issue here, the series qualifier canon.

Then there is a bit of a footnote, and it says, there is a bit of a footnote and it says uh as set out in reading law 147 this canon also applies when the modifier precedes the series or verbs or nouns so not just after like this one was some scholars have claimed that quote nobody proposed the series qualifier canon until justice scalia pioneered it um That's a very nice way of throwing some shade that this is made up by Justice Scalia, that this canon is not a canon. It's Justice Scalia's thoughts and feelings that we're now saying comes down to us from Blackstone. Pretty funny coming from Justice Alito, Very gently phrased, but I love this idea that he's like, hey guys, our colleague made this up a few years ago.

Well, I have to say I was not tracking that. I was not tracking that, but it's a nice addition to the podcast. Thank you. Thank you. I was not tracking that, but it's a nice addition to the podcast. Thank you. Thank you. And we'll take a quick break to hear from our sponsor today, Aura. Ready to win Mother's Day and cement your reputation as the best gift giver in the family?

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Ugh. Okay. The reason we're talking about this is if you get my Sunday newsletter, and please go to thedispatch.com and sign up. If you just join on the free list, what we call free listers, if you just join for free, you will get my Sunday newsletter, which deals with religious topics, sometimes, most of the time, more from an a long reported piece about really one of the worst sex abuse cases that I've run across involving a super predator who abused boys at a very, very large Christian camp called Canna Cut Camp.

He worked for 14 years. There's evidence of abuse for about a decade. He pled guilty to seven counts of abuse and received two life terms plus 30 years. There's a civil complaint that says there were at least 57 victims. I talked to the prosecutor in the case, and he said a lot of interesting things, but he said that what's most disturbing to him was that from the sheer number of families who contacted him as the prosecution was unfolding and indicated that they were victim families and wanted to be kept up to date on the case, he said he's estimating the real number of victims could have been in the hundreds. And this is something that actually unfolded more than 10 years ago. It was near Branson, Missouri. It got very little coverage, just virtually no coverage, and then just disappeared, just disappeared. And there was no real sense of how did this happen? How was a super predator able to operate in a Christian camp for more than a

decade? And what began to sort of unfold was that there were a series of lawsuits that were filed, and either some of them are maybe still pending or that there were settlements with nondisclosure agreements. And while the lawsuits, there was a discovery in the lawsuits. In sort of able to spin out a narrative that said, we had this one bad apple, we were all shocked by this one bad apple, and we've taken all of these steps to try to make things better. And you can totally be confident in us. And you can totally, you know, so essentially what happened is while the camp under the NDAs couldn't talk about each individual case, they could still spin a narrative about what they knew and what they'd done. And we got involved in this because back in last October, Gretchen Carlson, who is, as many people remember, was Fox News anchor who blew the whistle on sexual harassment and sexual misconduct at Fox News.

Gretchen Carlson has started really taking aim at nondisclosure agreements. And so she contacted, she reached out to Nancy. She knows Nancy somewhat. And she reached out to Nancy about this. And Nancy just went on a mission to try to find out what happened at Canna Cut Camp. And honestly, Sarah, she has been working on this hour after hour, week after week, turned into month after month until we finally, we did find one victim who had filed suit, but did not enter into an NDA. He refused. He said no. And he had held onto the information that he learned in the lawsuit, didn't know who to share it with, and finally shared it with us last month in March. And oh boy, oh boy, Sarah, this is why NDAs are terrible. This is why they're terrible. You take a victim, a victim under extreme duress over the worst incident of their life,

and essentially what you say is we can end the litigation, we can compensate you, end the litigation. We can compensate you, but in exchange for compensation, there's going to be silence. You can see how that's in your individual interest. The silence is in your individual interest. This is making this go away, but then you also begin to understand, wait a minute, I'm bound to silence now and for all time. And then that's going to inhibit accountability. That's going to inhibit transparency. That's going to inhibit knowledge. And so, what did we find out? I won't go into all of it, but the short answer is almost a decade, almost a decade before the super predators arrest, the super predator had been reported for nude incidents with young campers.

Nude four-wheeling, nude swimming, nude basketball, nude running through the camp. And some of this documents are just heart-rending. Here's one. Right after this super predator was caught and prosecuted, a parent writes into the camp, you say you knew nothing. I know my husband called you in 1999 or 2000 to tell you about Pete Newman, that's the predator, and his Bible study jumping in Taney Como and him riding his four wheeler on your property down by the lake naked. Um,

a, a former camper or a young person. I'm so upset because me and my mother reported Pete Newman in Oh one and nothing ever happened. You sent people for the camp to our home and asked us questions, but it was swept under the rug. Had you taken the proper course of action at the time, other kids never would have been affected. But due to the negligence of your camp and staff, these children will never be the same. When you don't have NDAs,

you can learn things, Sarah. Yeah, I mean, but for that one person not signing an NDA, you wouldn't know any of that information. None of it. And it's actually weird that that person didn't sign an NDA considering that everyone else did. So that's a fluke. And you think about how many of those cases are out there where everyone signed an NDA, as you'd expect,

and we're never going to know. And the reason, by the way, that there's another hook for this little NDA, as you'd expect, and we're never going to know. And the reason, by the way, that there's another hook for this little NDA conversation is that yesterday, a federal judge, sorry, Tuesday, a federal judge ruled that the super broad, you can never talk about anything about Fight Club NDA, that the 2016 Trump campaign had everyone sign was void. It is interesting because the judge didn't talk about sort of the constitutional First Amendment issue. This is a political campaign, but more that the sweeping boilerplate language that they compelled employees to sign was so vague that it was invalid under New York

contract law. So it was a really narrow ruling on NDAs. And I've said this before. I say this to campaigns and friends, whoever's like, oh, I think I'm just going to have everyone sign an NDA. Judges don't like NDAs. They will find a way to get out of them because of this very reason. All an NDA is trying to do is cover up bad stuff with no upside. So as contracts go, they're not a great plan to cover up your bad stuff. Let's just say that. NDAs are weak. They're similar, I guess, for totally different reasons to non-competes. Non-competes generally are disfavored as contracts go. Now, some non-competes are totally enforceable. A lot of NDAs are totally enforceable.

But if there's some wiggle room, judge is going to wiggle. Yeah. Yeah. Exactly. And yeah, you've absolutely nailed it. One of the things that I've been asked is, well, what if the plaintiff requests an NDA? So this has been one of the defenses that this camp has offered, that plaintiffs request NDAs. The issue is, this is one of the worst moments, if not the worst moment, of the victim's life. There are reasons why they filed these cases under John Doe's. So, you know, these cases are prosecuted with John Doe's, the civil suits are litigated as John Doe's. And my position on this is, I think that there should be confidentiality agreements that run one way.

In other words, once you've paid money to a victim, there should be an ability of the victim to maintain confidentiality if the victim wants confidentiality. But if the victim decides, you know, some of these cases, some of these cases, they reach settlements when they're young. They're young. And then, you know, what's left in place, they reach settlements with leadership organizations, leaderships of organizations that are left in place. One of the things about this story was that nobody resigned, nobody was fired. And, you know And some of the other evidence in this case,

I mean, my goodness, I just want to read this one thing. This is a message from the head of the camp about this super predator. Pete did a great job in his chapel presentation the other day. It's interesting, as amazingly gifted and talented he is, and he certainly is,

he mentioned there wasn't a night of the week there wasn't someone in the hot tub to minister to. There wasn't someone in the hot tub to minister to. I happened to have a conversation with Redacted about that out front of the chapel, and we were laughing about that statement. I could tell that she wasn't laughing about it so much. Okay, now it keeps on.

I feel like you need, this is talking to the supervisor, that you need to make sure Pete has some very sincere goals about the time he's spending with his wife and his daughter. What? How about don't be in the hot tub with campers? Like this is the kind of stuff. And so what ends up happening is you enter into these non-compete, or not non-compete, it's NDAs. The leadership remains intact. And with the intact leadership, hmm, what happens? Oh, I don't know.

Guess what? Somebody else abused kids at the camp not long after this guy. Another counselor abused three boy campers aged 9, 10, and 12, later found guilty of second-degree statutory sodomy, sexual misconduct, and two counts of child molestation. I mean, so this is why the NDA is such a bad idea. This is the second big ministry sex abuse scandal I've covered in the last two months. And both of them featured NDAs that inhibited accountability.

And everyone asks me now, what do you recommend for ministries for any entity that's involved in an abuse allegation? One is no NDAs. Number two is retain and conduct an independent investigation. Number three, release the results of the independent investigation publicly. And number four, hold people accountable according to the results of the independent investigation. But none of that stuff happened here.

All right, last up, civil suit. Yes. Yes, Donald Trump has been sued. And we don't need to spend a huge amount of time on this because we've been going on a number of interesting things. But two Capitol Police officers filed a lawsuit against Trump for essentially, lack of a better term,

just for inciting the insurrection. Think of this like OJ. When you can't get him in the criminal case, maybe you can get civil damages and bankrupt the guy and wouldn't that be fun? So it's sort of the OJ theory of bringing a civil suit

against someone who you think is criminally liable. Exactly, exactly. Now, essentially this case, and I've been reading the complaint and we can put the complaint in the show notes. Basically, it's gonna come down to, did Trump incite the riot? Not in the sort of colloquial sense of the term incite, but in the legal sense of the term incite. In other words,

did Trump's words and actions meet the Brandenburg test, which is for loyal AO listeners. Don't even need me to say it. They can recite it right along with me. One, the speech, is the speech directed to inciting or producing imminent lawless action? And is the speech likely to incite and produce such action? And so that's going to be the issue. There are a lot of free speech scholars and lawyers who have weighed in on Trump and the Brandenburg test. I would say the scholarly consensus is that his words did not rise to the level of a Brandenburg violation. There is a dissenting minority view that says

either A, it's really close or B, that they did. But I would say the scholarly consensus that I have seen since January 6th is that his words did not rise to the Brandenburg standard. But if they didn't, I don't think the officers have a chance here. Yep. This is going to get kicked on a motion to dismiss. Good times. Yep. I agree.

I don't think it goes to discovery unless court of appeals reverses, um, and sends it back. We shall see. Alrighty. This has been an action packed pod. We'll be back on Monday with more. Until then, please go rate us at Apple Podcasts. Please subscribe. Check us out at thedispatch.com. And as always, thank you for listening. This episode is brought to you by Secret. Secret deodorant gives you 72 hours of clinically proven odor protection,

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