Advisory Opinions - Why Bill Cosby is a Free Man

Episode Date: July 1, 2021

On today’s podcast, David and Sarah start with a discussion about Bill Cosby’s getting released from prison after his sentence was overturned by the Pennsylvania Supreme Court on due process grounds. Our hosts then turn to the two big final decisions from the Supreme Court on voting rights and anonymous donor disclosures, cases that divided the court along ideological lines. Sarah explores the ins and outs of Elena Kagan’s dissent in Brnovich v. Democratic National Committee, while David explains how Americans for Prosperity Foundation v. Bonta isn’t the conservative victory some news outlets have claimed. Finally, David and Sarah talk about a new big tech bill out of Florida that puts a lot of new requirements on big social media platforms (except those operated by certain state theme parks). Show Notes: -Pennsylvania Supreme Court Bill Cosby decision -Brnovich v. Democratic National Committee -Americans for Prosperity Foundation v. Bonta Learn more about your ad choices. Visit megaphone.fm/adchoices

Welcome to the Advisory Opinions Podcast. This is David French and Sarah Isger. And we've got a lot, a lot to cover today. We had a big Supreme Court day today, Arizona voting rights case, donor privacy case out of California. But that's not where we're starting, Sarah. We are starting with the case that basically took everybody by surprise yesterday. Shouldn't have taken people by surprise if you'd been paying close attention, which I got to admit, I had not paid close attention to some of the

procedural posturing in this case. And then when I read this case, I realized exactly why it turned out the way it turned out. And that is Commonwealth of Pennsylvania versus William Henry Cosby Jr. So we're going to talk about Bill Cosby first, then the Supreme Court of the United States, which is not the way I thought that we were going to order this podcast today. But if you're talking about cultural significance of a case, I think Cosby beats the Supreme Court, but we're going to deal with the Supreme Court also. So, Sarah, why don't we launch into the Bill Cosby case?

We're also going to talk a little bit about some developments in the world of big tech at the very end briefly. But today's order is going to be Cosby, Supreme Court, big tech, bye. All right, so let's jump into it. The Cosby case, I'm going to skip to the trial portion. So they initially try him. It's a hung jury. They do not get a conviction. They try him again and this time introduce evidence of previous bad acts using testimony from other women that ranged between 15 and 22 years ahead of time.

Why didn't they charge those women? Statute of limitations had run. So they're charging an incident from 2005. And then they get a conviction that time. On appeal, Cosby appeals two issues. One, that the previous, the prior bad acts were improperly introduced and they were more prejudicial than probative. Interestingly, the court did not get to that, although the dissent and one of the concurrence and dissents says that if they had gotten to that, they also probably would have thrown it on that as well. To start with that just for a second, there are, you know, it is always hard. It is always sort of mushy when you can introduce prior bad acts. But the short version of that is that it needs to be nearly identical to the act in question and that it goes to intent often. You know, the person says, well, it was just an accident that I did this. And you're like,

no, you did the same exact thing five times in the previous month. So you clearly knew what you were doing this time. And that actually is pretty close to what they were trying to show in Cosby. You know, he says that he thought she was consenting, that he gave her Benadryl. And then they're showing

these prior bad acts. The problem is when they're 15 to 20 years before then, that probably temporarily was not sufficient. But they don't get to that because...

Wow. Yeah, keep going wow this goes to a fundamental part of our justice system where you know we've talked before about uh the the purpose of the justice system is to give the benefit of the doubt to the defendant because they might be innocent. But there's another part of our justice system that, in fact, even if you're guilty, we have certain rights that we give to the most odious defendants to make the system fair. And your Fifth Amendment right not to incriminate yourself is very, very much one of those, right? If the issue were just trying to protect the innocent, then we'd want you to incriminate yourself plenty, because if you're incriminating yourself, you're guilty. The Fifth Amendment,

I take the Fifth, that is actually not to protect the innocent, necessarily. It is about fundamental fairness in the legal system. You know, someone, Jake Tapper, was retweeting a quote from someone else, and he said, we don't have a justice system, we have a legal system, and that that was an appropriate quote for the day. I think that I totally understand where that's coming from. This is an odious result in a lot of ways. That being said, no, we do have a justice system. And behind the veil of ignorance, you'd want this Fifth Amendment privilege. So let's talk about how we get to it, because it is messy and it somehow involves a guy we already have talked about on this show,

Bruce Castor. All right, so y'all remember Bruce Castor. He is one of the defense attorneys in the Trump post January 6th impeachment trial in the Senate. And he was, David, I think to put it mildly, the attorney that we found to be the least competent. Yeah. Incredibly incompetent. And boy, does what happened in this Cosby trial very much back up everything that we thought about this guy. All right. So backing up in 2005, the incident itself happens. They do have a preexisting relationship. She goes over to his house to get some advice. He says, you look stressed. Why don't you take these three blue pills? He won't tell her what they are. She doesn't ask. Maybe she takes them. She loses consciousness in short while she's losing consciousness. She knows that he is sexually assaulting her. She wakes up. Her clothes are all messed up. She leaves the house

multiple times. You know, she tries to record him asking what pills he gave her. He won't say. It's a pretty awful story. A year later, she files charges in Canada. That's where she's from. It gets transferred to where he is, which is in Pennsylvania. That's where this case is going to be. And Bruce Castor is the prosecutor. He talks to her and he finds two big problems. One, he thinks that her waiting a year, it undermines her credibility. And two, that she has inconsistencies in her story that undermine her credibility. He decides that he does not have enough to prosecute,

but for justice purposes, he wants her to be able to bring a civil suit against Cosby. And so in order to facilitate that, he puts out a press release that says that he is not going to charge Cosby. We'll get into exactly what that press release says in a minute and the import of the press release. But the result of that is that in the civil suit, Bill Cosby never takes the Fifth Amendment, because if you are not in jeopardy, criminal jeopardy, you cannot plead the Fifth Amendment. So he doesn't. And he says some things that are relatively incriminating. He says that he has

given women quaaludes in the past. And also, I mean, he just, he's a guy you might want to find guilty of sexual assault. Yeah. That's, yeah. And so she wins a roughly three and a half million dollar judgment in the civil suit. Fast forward 10 years

and now they're looking to charge Bill Cosby for that same incident, not a different incident. And they want to use his deposition testimony from the civil trial, which they do. All sorts of problems here. So the Pennsylvania Supreme Court finds that, and I'll do some quotes here, when a prosecutor makes an unconditional promise of non-prosecution and when the defendant relies upon that guarantee to the detriment of his constitutional right not to testify, the principle of fundamental fairness that undergirds due process of law in our criminal justice system demands that the promise be

enforced. And here they're actually not even looking at necessarily criminal law or contract law because, again, this press release is really weird. They never commit any of this to writing, stuff David will get into here in a second. So instead, it's one of my favorite terms in law school, actually, in contract law, which, by the way, on top of property law, I also very much enjoyed contract law. Estoppel. And if you are not a lawyer or law student, I hope you don't know what the word estoppel means. In this case, it's a claim of promissory estoppel. And it basically says, okay, look, maybe the contract wasn't completed right. Maybe all of these other technical pieces are not met. However, you tried to, the other person relied on it. And so you are estopped.

It's basically a fancy word for you can't, you are prohibited from claiming the benefit of the voided contract. So here are the parts of promissory estoppel. The aggrieved party must prove, one, the promisor acted in a manner that he or she should have reasonably expected to induce the other party into taking or not taking a certain action. Two, the aggrieved party actually took such action. And three, an injustice would result if the assurance that induced the action was not enforced. So in this case, Bruce Castor acted in a way to get Bill Clinton, sorry, Bill Cosby, acted in a way to get Bill Cosby to not invoke his Fifth Amendment rights. to not invoke his Fifth Amendment rights. Bill Cosby then did not invoke his Fifth Amendment rights. And an injustice would result if the assurance that induced the action was not enforced.

That's something we'll get to on the remedy side. Under some circumstances, assurances given by prosecutors during plea negotiations, even unconsummated ones, may be enforceable on equitable grounds, even if not contractual. So that's the legal basis for this. A prosecutor told him, I'm never going to prosecute you for this. So you must testify in this civil case. Cosby then did give four depositions in the civil case. case. Cosby then did give four depositions in the civil case. And then a later prosecutor said, yeah, I'm not bound by that agreement that you made with that other prosecutor. He doesn't have the authority to do it. He didn't actually do it. And the court said, look, Bill Cosby took Bruce Castor at his word. He relied on it. He gave that deposition, believing that he was no longer

in criminal jeopardy. So you can't then put him in criminal jeopardy for it. He gave that deposition, believing that he was no longer in criminal jeopardy. So you can't then put him in criminal jeopardy for it. And as a result, and I hope we talk about the remedy section, David, because that's where there were some dissents in the Pennsylvania Supreme Court. As a result, they don't just say you can't use the deposition. In fact, they say you can never prosecute Bill Cosby for any criminal actions related to that night with that particular victim. It's an incredibly heartbreaking result with a very good legal reason. I mean, I think the best single summary, because there's elements of this that when you see the facts laid out, you're just kind of gobsmacked. I did not follow the procedural posture of this case closely.

I did follow the factual allegations against Cosby. So once he was indicted and once they began prosecuting him, back in the day, I followed the factual claims against him. I was not tracking this pre-trial, this non-prosecution agreement. pre-trial, this non-prosecution agreement. And there's a couple of things about this that really stand out, or several things about this that really stand out. And here's a great summary from a correspondent. And this is to recap. So he says this, to recap, the then DA, Castor, one, decided not to prosecute Cosby because he couldn't prove the case. Two, issued a press release saying he couldn't prove the case.

Three, didn't tell his second-in-command about the immunity decision. In other words, this promise not to prosecute. Number four, didn't commit the non-prosecution agreement, immunity agreement in writing. And then number five, and this is just unbelievable, didn't communicate with the victim, did not communicate with the victim before making his decision.

And this is how they write about it in the opinion. D.A. Castor did not communicate to Constand or her counsel his decision to permanently forego prosecuting Cosby. In fact, Constand did not learn of the decision until a reporter appeared at one of her civil attorney's offices later that evening. With the resolution of allegations removed from the criminal courts, Constand turned to the civil realm. Sarah, there's so much about this that is stunning. If you listen to the Dispatch podcast that we recorded yesterday, you would have heard me go on a tirade about competence. I want to go on a tirade about competence again here. This is really stunning stuff

when it's laid out. When you publicly state you cannot make your case, you publicly state you're not going to prosecute. You do not tell the victim. But there's this other aspect of this as well, Sarah, the trial court, the trial court, because it's not just Castor here. The trial court lets this all in and just rolls with it and also setting this up as well.

So I am, you know, when you look at this, I think that the bottom line is that if you believe that the Fifth Amendment matters, that this privilege against self-incrimination matters, and it's absolutely indispensable within our Bill of Rights framework, you can understand why this Supreme Court opinion turned out the way that it did. What you have trouble understanding, because you can understand the legal framework, you can understand the value of the Fifth Amendment, what you have trouble understanding is the underlying thought process and the actions of the DA that put us in this position. And I do wish, and again, this is very, very, very hard. I do wish there had been more focus on this aspect of the case during the coverage of the case,

because a lot of us would have known that his conviction was hanging by an absolute thread. I agree with all of that. I wonder, by the way, when we talk about Castor's role in this, so again, nothing was committed to writing. He didn't tell anyone. There's just this press release where he announces it. And I agree with the majority in the court that the press release is plenty for Cosby to rely on and to say that he relied on, despite how much I really hate the result. But the something that I do take issue with the majority for, A, not perhaps diving a little bit deeper into Castor's motivations here. We're talking about incompetence. It certainly is incompetent unless it's something more. And I think I have proven myself on this podcast,

very willing in all, almost every situation to attribute a bad result to incompetence over malfeasance where there's not evidence of either. Boy, am I having a little bit of a hard time on this one, because at the time, Bruce Castor writes sort of the most, incriminating is the wrong term, but when he hears that his predecessor is charging Cosby, he writes an email that says, oh, aren't you aware of this prosecution deal that I made, this non-prosecution deal? You can't go after him. I gave him full immunity forever and ever and ever. He's running for office at the time. And if they charge Cosby for all of the information that he knew at the time, it would wildly undermine him and his competence as a prosecutor.

So whether the initial press release slash not telling anyone was incompetent, I start to see malfeasance where he defines his own press release as a forever immunity deal because it is in his interest to do so at that point and to make sure that he didn't drop the ball not charging a serial predator. And in fact, the concurrence dissent, I think, also raises a good point. In footnote one, one might reasonably wonder if such abuses were at work in this case, particularly given Castor's odd and ever-shifting explanations for his actions. Then in footnote three, failure to directly condemn Castor's inappropriate behavior in this regard only invites more abuses of prosecutorial power and increases the likelihood

that other defendants will detrimentally rely on similar improper inducements. In my respectful view, we should reject Castor's misguided notion outright and declare the district attorneys do not possess this effective pardon power and thus render any similar future promises illusory and reliance thereon manifestly unreasonable. In other words, we can prospectively prevent similar deprivations of due process in the event any future district attorney might be reckless enough to act as Castor did here. Why is that not in the majority opinion? What? Why, why, why? No, no, no. Yes, of course this needs to be in there because what Castor did was make Cosby queen for a day. You know, this pardon power that he does not have.

Now, Cosby understandably relied on it, unfortunately. But if they were simply to say, Castor never had this authority, and no district attorney from this point forward will ever have this authority. Therefore, if you are a defendant relying on it, you didn't read this, and your lawyer sucks, and we will not hold any promissory estoppel reliance interest in that case.

Why didn't that happen? Yeah, what you just read and what you just quoted, I think is absolutely spot on because what has essentially happened here is, and I love the use of the term pardon power. It's a district attorney saying, I essentially pardon you. And here's this email that he writes. Regardless if we find more facts, regardless if we find a witness who was peeking through the window and saw it according to his press release and later email explaining his press release, that wouldn't matter. That is a pardon.

Yes, yes. Here's the actual quote from the email. I intentionally and specifically bound the Commonwealth that there would be no state prosecution of Cosby in order to remove from him the ability to claim his Fifth Amendment protection against self-incrimination, from him the ability to claim his Fifth Amendment protection against self-incrimination, thus forcing him to sit for a deposition under oath. And if he had told the victim that, if that was an agreement they made where she said, I understand that I will never have more evidence of this, I understand that we will never be able to criminally prosecute him for this, and I would like to therefore have financial compensation for what was done to me, then it is a strategic decision that while I might disagree with it, I very much understand. That's not what happened here. No, no. I mean, and in fact, in the back

and forth, so you have, you know, so you have Castor sending the actual DA, the prosecuting district attorney, this email. The prosecuting district attorney says that she, despite this press release, this was the first she'd learned about a binding understanding. She requests a copy of any written agreement not to prosecute. And here's the DA, here's DA Castor responding in the email. The attached press release is the written determination that we would not prosecute Cosby. This is what the lawyers for Constat wanted, and I agreed. Normally, I would say that there's so much shadiness involved there, except that after seeing Bruce Castor try to defend the president in that hearing. Now I'm like, actually, no,

he is actually incompetent enough to think that that is acceptable legal behavior. I'm shocked that Cosby's defense attorneys thought that was sufficient. Yeah. Oh, that's right. Right. No, I'm with you on that. I'm with you on that. But this is one of the more extraordinary. you on that. But this is one of the more extraordinary, it's literally one of the more extraordinary fact patterns that I've seen on appeal in a criminal case. I mean, I have seen a lot of ineffective assistance of counsel claims where a defense attorney has just been horrible. Maybe a defense attorney is drunk, they've got a substance abuse problem, they fall asleep during trial, and they provide horrible representation for criminal defendant. This is almost like an ineffective assistance of counsel except applied to a prosecutor. Who's helping the defense.

it's really stunning. I mean, it's really stunning. And there's no real constitutional recourse for the victim here. I mean, the victim here, she's in the hands of this DA. And the DA absolutely cut the legs out from under the prosecution, cut the legs out from under the prosecution in 05,

and then is very busy emailing, sending emails to cut out the legs of the prosecution, you know, when the actual case is brought. I mean, it's just extraordinary. It's just extraordinary. So there's a few takeaways here. Yeah. One, I do think it's being misreported a little that there was this, you know, non-prosecution deal, immunity deal, and that's why Cosby is going free. Technically, that's not true. It's not about whether there was a deal. It's that Cosby

believed there was a deal. So Bruce Castor's incompetence somehow helps Cosby. So it's all about the state of mind of Cosby and his team and their belief that there was a deal. Two, there was one dissent, one sole dissent. There was a concurrence and a dissent as well that was on the remedy. The sole dissent said that actually because of Caster's flim-flamming around, Cosby should have known not to rely on it and that his ever- changing explanations that don't really even make sense, his motivations when he is explaining why he, you know, gave this pardon basically, um, would be enough to a not find that there was ever an enforceable immunity deal. And that because of that, because they never asked for it in writing, et cetera, they should never have relied on it.

Um, I, I am very sympathetic with the outcome that that would create, but I understand why no one joined that dissent. It is, though, the way that you would get to throwing this out is by saying that actually Castor's shadiness hurts Cosby because he should not have relied on someone who was clearly being so shady and not putting it in writing. And then the last takeaway, David, for me is the remedy. And I'm curious what your thoughts were on whether, as the concurring dissenting opinion said, agrees that the Fifth

Amendment violation, the promissory estoppel, but believes the remedy should have just been barring the prosecution from using the deposition transcripts at a retrial, whereas the majority held that, in fact, because of the reliance, it's not just that he gave up his Fifth Amendment rights. He, you know, the whole civil suit exists because of this and a whole lot of other things besides. And therefore, the only way to actually enforce the promissory estoppel is to force the promise to be kept. And in this case, the promise is no prosecution for those actions. I mean, let me put it this way. I want the concurring dissent to be, it's the kind of

thing where I want it to be right. But at the same time, what you are talking about is an entire chain of events that was initiated and pursued by this district attorney that it's sort of like, how do you unring the bell here? And so I feel like the court really was out of options at that point, that there wasn't much the court that could do. I hate the result as far as what it means in the real world, but I think given the facts and circumstances, it's the right result legally. And, you know, here's the thing. There was a lot of conversation online, like, tell me again why women don't come forward. conversation online like tell me again why women don't come forward and you know that's i think that that's one of the elements here that is so tragic because

when a woman does come forward and when a woman is does have the courage to come forward and make a claim like this against somebody anybody much less somebody as famous and powerful as beloved in the public square as Bill Cosby, at the very least, at the very least, can we ask that the people who are entrusted with investigating and prosecuting that claim be competent, just be decent at their job? I'm not even talking about write a movie about them because they're so amazing. I'm just talking about just be decent at your job. Just be competent. And that's what's so heartbreaking here. Somebody had the courage to come forward, to go through this ordeal, the courage to come forward,

to go through this ordeal, and they were undercut by... The best case, Sarah, is rank incompetence. The worst case is something worse, as you were hinting at. And that's a deep tragedy, I think. Fifteen years she went through this for this result. And I'm sure we'll get lots of questions

on whether Bruce Castor can be held civilly liable. I don't think so. Yeah. Wonder about any bar complaints, perhaps. Bar complaints. Yes, that I can see happening. Although even then, he is a prosecutor at the time. He has wide discretion, certainly for that initial press release. No, I don't think you can get him. You know, for those subsequent emails and the motivations behind them, you'd have to find some evidence for this abuse of power theory. But, you know, it brings back our old friend, David, qualified immunity. And prosecutors, in fact, often enjoy absolute immunity.

immunity. And prosecutors, in fact, often enjoy absolute immunity. Yeah, that's a whole other discussion. But anyway, that's all to say, no, I don't think she has any recourse against Cosby at this point, and I don't think she has any recourse against Bruce Caster. I think our system is made to protect the rights of defendants, not victims. Right. And this is an egregious example of how that plays out sometimes. And while I am incredibly grateful to the system that we have, and I think it is important. In fact, I think it is more important to protect defendants than victims in a criminal justice system. Boy, is today a hard day to stand up for that principle.

Yeah. And the privilege against self-incrimination, as I said, this is not a minor thing. This is not, people say, quote unquote, technicality. The privilege against self-incrimination. I was very upset by the blue checkmark Twitters who said Cosby got off on a technicality. This is a fundamental constitutional right. That is not a technicality. You can complain about it. You can not like the

result. I am right there with you. Do not call this a technicality and then purport to be for criminal justice reform or anything else in our system. Absolutely not. I hate the result of this and I will defend our fifth amendment right not to self-incriminate to anyone at any time. And I will defend the outcome of this case as well. Yeah. Amen. All right. SCOTUS time. SCOTUS time. Do we want to do Americans for Prosperity Foundation or do we want to do Brnovich first? Sarah, your call. So let's lay some foundation here. We're going to talk about the results today. We reserve the right to analyze these cases in more depth for our next episode when we have more time. We're still going to do Supreme Court term review with Cannon Shanmigan.

We've got plenty more Supreme Court stuff to give. So we are going to give all of these cases short shrift today. I will note that over the weekend, we had a shadow docket case. This was on the evictions moratorium that was put in place. This was the court with an unsigned opinion denying the motion to enjoin the eviction moratorium, meaning there is still an eviction moratorium. Thomas, Alito, Gorsuch, and Barrett would have granted the injunction so that you could not, you would end the eviction moratorium. Kavanaugh, though, wrote this interesting concurrence where he basically says, look, do I think this is an unlawful use of power? Yes, that you can have the CDC exceeded its

statutory authority by issuing a nationwide eviction moratorium. However, the CDC plans to end the moratorium in only a few weeks on July 31st. And because those few weeks will allow for more additional and more orderly distribution of the congressionally appropriated rental assistant funds, I vote at this time to deny the application to vacate the stay of the injunction. In my view, clear and specific congressional authorization by a new legislation would be necessary for the CDC to extend the moratorium. What that means? Hey, CDC, you're not extending this again. But for sort of, in some ways, estoppel reasons, David, there's this reliance interest going on. It's going to end in a month anyway. We don't need to throw the system into chaos for what amounts to one month of exceeding authority, unlawful eviction moratorium. It is, by the way,

I think maybe the best Kavanaugh example of my 3-3-3 court not being conservative to liberal, but rather institutional and thinking about facts that are not purely related to the outcome of a case. In this case, he's thinking about when the moratorium will end, the orderly end to that moratorium. This is a very institutional concurrence and one with an end date, July 31st. So I found that really worth mentioning. All right. Do we do Voting Rights Act or Americans for Prosperity? Let's do Voting Rights Act. It's the hit parade case. I'm more interested in Americans for Prosperity, but this is how we divided it, because we went straight for our interests. So Sarah, Voting Rights Act, me, First Amendment.

So Sarah. Okay, this is section two of the Voting Rights Act. Let me tell you what section two says. two of the Voting Rights Act, let me tell you what section two says. No voting qualification or prerequisite to vote or standard practice or procedure shall be imposed or applied by any state or political subdivision in a manner which results in a denial or abridgment of the right of any citizen to vote on account of race or color. A violation occurs if, based on the totality of circumstances, and that phrase is going to be doing some work both for the majority and the dissent, different work, it is shown that the political processes leading to nomination or election in the state or political subdivision are not equally open to participation by members of a given race and that those members have less opportunity than

other members of the electorate to participate in the political process and to elect representatives of their choice. In short, the provision bars any voting qualification or standard or practice or procedure that results in a denial or abridgment of the right to vote on account of race. And how do we know that it's been denied on account of race? The totality of the circumstances shows that voting is not equally open to members of that race and that they have less opportunity than other members of a different race. Okay, so Arizona passed two laws. One, that if you vote out of your precinct, and now you can still vote provisionally, but if then that provisional ballot,

it founds that, nope, you actually were not in the correct precinct, your vote doesn't count. And it doesn't matter, for instance, that the vote for president, that ballot choice is the same across the state, no matter what precinct you voted in, your whole ballot is tossed out.

Two, no matter what precinct you voted in, your whole ballot is tossed out. Two, no ballot harvesting. So if you hand your ballot to someone who is not a mail worker, an election worker, there's some exceptions. If you hand your ballot to a family member or a friend to go drive your ballot in to the mailbox, your vote isn't going to count, that person violated the law, etc., etc. Okay. Do either of those violate Section 2? There's a couple things on this, David. One, I do think this was an easy-ish case. It was decided 6-3 along ideological lines with Alito writing. I think that based on the Carter-Baker Commission, my favorite 2005, Carter-Baker Commission had 87 recommendations to make voting easier and more reliable, to reduce fraud, etc. And two of the

things they contemplated were, yep, absolutely in-precinct voting and no ballot harvesting. Now, is it a little bit suspect that Arizona only took two of the things that make voting harder and not all the things in the Carter-Baker Commission that would make voting easier? Sure, don't love it, not going to lie. But the idea that you could invalidate those two very common rules and throw so many state election laws into question, like maybe all state election laws, is not a reasonable outcome. That being said, because of how I enter into this case, and by the way, I guess full disclosure disclosure my husband at the appellate stage wrote an amicus brief but not at the supreme court stage anyway uh i actually want to give the dissent a more of

a hearing today david than alito real quickly i want to run through alito's standards so that everyone can sort of understand them. But I actually think that Kagan made me rethink my position on how easy this case was, even if I think it came out probably the way that it needed to. Okay, so here are Alito's standards real quick. First, the size of the burden imposed by a challenged voting rule is highly relevant. In this case, there's the usual burdens of voting, finding out where your precinct is, putting your mailed ballot into a mailbox yourself. He's saying those are usual burdens of voting. Two, for similar reasons, the degree to

which a voting rule departs from what was standard practice when Section 2 was amended in 1982 is a relevant consideration. Obviously, lots of states had precinct-based voting in 1982. In fact, more states had precinct-based voting in 1982 than they do now, including Arizona, by the way. Many counties are doing countywide voting, you know, where you have early voting things like we do here in Virginia or in Texas. Three, the size of any disparities in a rule's impact on members of a different racial or ethnic group is also an important factor to consider. By the way, interestingly on this, Justice Kagan agreed. Next, courts must consider the opportunities provided by a state's entire system of voting when assessing the burdens imposed by a challenge provision. Ooh, did she disagree with that?

No, no, no. Finally. No, no, no. Is that a quote from the dissent? No, no, no. I think it's in the footnote. No. Okay.

Okay. Finally, the strength of the state interest served by a challenge voting rule is also an important factor that must be taken into account. You know, fraud bad. Cool, cool, cool. All right. So I totally get Alito's point, but I want to take Kagan, who obviously was writing for Breyer and Sotomayor as well. First of all, she does spend 20 pages walking through the history of voting restrictions in this country that were absolutely meant to dilute or prevent people of color from voting. Even some of those facially neutral laws, by the way. And this, I think this is where I actually stopped and was like, wait, I need to rethink how I walked into this case. Here's her example. Take even the majority's example of a policy advancing, quote, an important state interest,

the use of private voting booths in which voters mark their own ballots. That seems like pretty obvious, David. I mean, to tell you the truth, before I just read this in her dissent, I was like, I thought we always had privacy to vote, like that your vote could be secret. This is a little bit different in that you are required to use private voting booths, I believe. In the majority's high-minded account, that innovation, then known as the Australian voting system for the country that introduced it, served entirely to prevent undue influence. How nice. But when adopted, it also prevented many illiterate citizens, especially African Americans, from voting. And indeed, that was partly the point. As an 1892

Arkansas song went, and I am both quoting Justice Kagan quoting the song, so if you have children in the car listening, I'm going to use a word that I would not otherwise use. The Australian ballot works like a charm. It makes them think and scratch. And when a Negro gets a ballot, he certainly got his match. Wow. Across the South, the Australian ballot decreased voter participation among whites by anywhere from 8 to 28 percent, but among African Americans by anywhere from 15 to 45 percent. That, yeah, that did stop me in my tracks a little. Does that mean that secret ballot laws violate Section 2 today? Of course not. But the majority's own example gives us all a bit of pause?

Yes, it should. It serves as a reminder that states have always found it natural to wrap discriminatory policies in election integrity garb. She has a really, I thought, a very good point there and one that probably should be taken pretty seriously. And I think that the left might take it too seriously sometimes. I was surprised when she said that it could in no way be found to violate Section 2 today. That's only because we don't know the percentage difference that it's making, right? But at the same time, I think the right should probably be more aware of the election integrity garb that some of these changes are put in. So then you get to some of her percentages. And by the way, this was a battle of data here

and how two sides can use the exact same data and tell really different stories. According to Justice Alito, this out-of-precinct balloting affected 0.15% of ballots. So when you're talking about the effect on any given population, it's even smaller, right? 99 point whatever percent of white ballots were counted, and I think it was 98% of non-white ballots were counted. Okay, no big difference there, right? The disparity is so small, surely that doesn't trigger Section 2. But let me give you Justice Kagan's version of this. In 2012, about 35,000 ballots across the country were thrown out because they were cast at the wrong precinct. Okay, 35,000 ballots, the whole country, all 50 states,

plus D.C., plus, you know, other places. Nearly one in three of those discarded votes, 10,979, was cast in Arizona. Well, that does raise my eyebrows. Why is Arizona having such a different precinct situation? Well, let's find out. 60% of the voting in Arizona is from Maricopa County. There, Hispanics were 110% more likely, African-Americans 86% more likely, and Native Americans 73% more likely to have their ballots tossed. So that's a different way of looking at, by the way, that 99% of white votes counted versus 98% of non-white votes counted. Okay, but if you look at just those ballots that were thrown out, and then there is a huge racial discrepancy, you were twice as likely to have your ballot thrown out if you were Hispanic. so, but I'm like, okay, but why, right? There's all sorts of reasons that something can touch race.

Now, Section 2 doesn't care about that. If it touches race, it doesn't matter that it's actually economic. Nope. Section 2 says race is race is race. David, Maricopa County, recall, Arizona's largest by far, changed 40% or more of polling places before both the 2008 and the 2012 election. And critically, in 2012,

the county moved polling stations in African-American and Hispanic neighborhoods 30% more often than in white ones. All minority voters were disproportionately likely to be assigned to polling places

other than the ones closest to where they lived. All. Okay. I mean, there's lies, damn lies, and statistics, right? But that explains to me why Arizona is having a different experience than the rest of the country. experienced in the rest of the country, and why this might look a little bit more like that Alabama song from 1892 with some election integrity garb than I had previously, I think, fully acknowledged. Now, again, do I think you can get rid of out-of-precinct

voting prohibitions? No, I don't think Section 2 was ever meant to do that. I still think that Alito's standards are the correct ones and that it passes those standards because, David, they didn't challenge moving the precincts. That's what I was just going to say. It's when you look at this and you say, okay, wait a minute, out of precinct voting, the idea that that is going to violate section two still seems strained but it's the other half of this it's the out of oh okay so we now we have out of precinct voting let's play the precinct shell game that is where you and that's where when you're peeling this onion the onion starts to get rotten, is this precinct shell game. And the idea that many people, that percentage of people are living,

they're voting in precincts that are not the closest precinct to them, is fascinating. And I use the term fascinating in its negative connotation, not its positive connotation. Yes. And that is an interesting wrinkle here. And if I'm a voting rights attorney, what I'm going to be doing is I'm going to be taking a very close look at precinct location in the run-up to the midterms and the run-up to the presidential contest. Because that is something, and especially with Arizona, such a close swing state, and with what we've been seeing, especially in the GOP, the core of the actual GOP apparatus,

not all the GOP officials, there are some really good, courageous GOP officials who have, you know, resisted the audit, this crazy audit that's going on, for example. But the state GOP is in the hands right now of some pretty malevolent actors. And so if I'm a voting rights attorney, I'm paying close attention to precinct location. So we'll continue talking about this case at another time. I want to talk about Kagan's sort of collateral attacks on Shelby County, which struck down Section 5. She spends a lot of time on that. We can even talk a little bit about the ballot harvesting. Only 18% of Native voters in rural counties receive home delivery mail compared to 86% of white voters living in those counties

and why that one didn't pass muster either. And of course, we will talk about the effects of this outcome on the Georgia lawsuit that the Department of Justice brought against Georgia's new voting law. 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? Give the moms in your life an Aura digital picture frame preloaded with decades of family photos. She'll love looking back on your childhood memories and seeing what you're up to today. Even better, with unlimited storage and an easy to use app, you can keep updating mom's frame with new photos. So it's the gift that keeps on giving. And to be clear, every mom in my life has this frame. Every mom I've ever heard of has this

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Use code ADVISORY at checkout to save. Terms and conditions apply. With that, David, let's talk about some anonymous donors. Yes, let's talk about some anonymous donors. Now, I'm just going to go ahead and say that a lot of the coverage of this case is going to be bad. Okay, it's going to be very bad, and it's going to be very bad for a very specific reason, and that is this was, like Brnovich, It's going to be very bad for a very specific reason, and that is this was, like Brnovich, a 6-3 decision along the ideological lines that a lot of people have expected the court to follow, the six Republican appointees and the three Democratic appointees.

However, the actual underlying appeal in this case, in other words, the ideological makeup of those who, not just the petitioners who are conservative, but the amicus briefs filed was all over the political spectrum. There was an amicus brief filed on behalf of the NAACP Illegal Defense Fund, the ACLU, and the Human Rights Campaign, all supporting the petitioners in this case. What was this case? So some of you might remember it, but the facts are pretty simple. And the facts are that California requires nonprofits to disclose through Schedule B, a form through Schedule B, an IRS form that they file with the California Attorney General,

their Schedule B, which includes and discloses their large donors. And it has personal identifying information about large donors. So if you're a nonprofit and you're operating in California, you're going to have to disclose your donors to the state. Now, there's a couple of things about this that are particularly, that create a particularly bad set of facts for California. So one is that California says it's requiring this disclosure as sort of part of its own anti-fraud efforts, that it's, you know, it's responsible for policing nonprofits and responding to, you know, fraud and other kinds of abuses by nonprofits, which is a valid state interest. Nobody denies that.

But the facts of the matter were that this preemptive disclosure requirement had not proven to be material in California's actual enforcement actions. So they're requiring everybody to turn over donor information, but it turns out they weren't actually using that predisclosure in their enforcement actions. That was a material fact that was found in the court below. And then the other thing that is very bad for California is they kind of inadvertently disclosed donor information that it had leaked. information that it had leaked. So California had proven itself to be not trustworthy in securing this private donor information. So here you have a situation where if I'm a nonprofit engaged in

public advocacy, that I'm going to have to disclose my donors. We live in a culture that we all know about right now involving, and there's evidence in the record of the kinds of threats that people have received associated with these nonprofits. And it is ugly. It is ugly. And so what the nonprofit said is we shouldn't have to do this, that the California regulation should be struck down in its entire facially invalid, and that we should be able to keep this donor information private. The court agreed 6-3. And what was interesting about this, and this gets a little bit into the weeds, but one of the things that was interesting is what was the test that they were going to use? Is it going to be something called exacting scrutiny or is it going to be strict scrutiny?

Strict scrutiny, of course, loyal advisory opinions, readers know, listeners know that if it's strict scrutiny, you're generally going to lose. If you're a state litigant and strict scrutiny is being applied to your actions, you are generally going to lose.

Not always, but usually going to lose. But what's exacting scrutiny? Exacting scrutiny is something, I love the way they define some of these tests. Under that standard, there must be a substantial relation between the disclosure requirement and a sufficiently important government interest. To withstand this scrutiny, the strength of the governmental interest must reflect the seriousness of the actual burden on the First Amendment rights. Hmm, okay. And as a non-lawyer, if you're having trouble distinguishing that from strict scrutiny, it's not because you're a non-lawyer. well, if we like it, we're going to uphold it.

And if we don't like it, we're going to strike it down. It's not exactly a clear, so it's not exactly a clear ruling or a clear rule. And so Roberts then says, okay, the litigants say that we shouldn't do exacting scrutiny, this sort of weirdo rule that I just articulated or standard i just articulated but strict scrutiny and robert says no we're gonna go with exacting scrutiny kind of regardless of the type of association compelled disclosure requirements are reviewed under exacting scrutiny

but but and i i'm i almost hesitate to go into this because it's so into the weeds but robert says while exacting scrutiny does not require that disclosure regimes be the least restrictive means of achieving their ends it does require that they be narrowly tailored to the government's asserted interest so he pulls a tiny little thread of strict scrutiny into exacting scrutiny. Am I misreading this? Yeah, no, we've just created a new level of scrutiny. So there's strict scrutiny at 10, exacting scrutiny at let's say a seven, a rational basis review at a three. Rational basis review at a three. And now we have the Roberts AFP test that is like an 8.5.

Yeah. What do we call exactingly strict, strictly exacting scrutiny? Exactingly. Okay. How are you? Stricting. Exacting. Stricting? No. Stricting? No.

Strixacting? I think it has to start with exact because the first part is the exacting part and the second part is the strict part. So it's exict. Exict scrutiny? Exict scrutiny. Exict scrutiny. We got it.

Legendary producer Caleb, that could be the podcast title. Exict scrutiny. He hates us. Yeah, he hates us so much. So basically, long story short, as we expected, Sarah, they struck down this California disclosure requirement. This was not a surprise to anybody at all. requirement. This was not a surprise to anybody at all. The only surprise is that it wasn't a greater majority in my mind than 6-3. And so dive down into the dissent and the real disagreement with the majority isn't so much that there are problems with compelled disclosure. that, you know, that there are problems with compelled disclosure. There are problems with compelled disclosure. It's what kind of showing do you have to make before you're going to be able to withhold your information? And so Sotomayor writes with Breyer and Kagan and essentially takes issue with the breadth of the court's ruling, instead saying, wait a minute, you've got to plead and prove that disclosure will likely expose you to objective harms. So in other words, if you're going to withhold, that there would be a right to withhold if you can establish that you are

going to be exposed to these harms. Now, for some nonprofits, that would be an easy burden to carry. You could demonstrate that you've had officers of your nonprofit threatened, you've had employees of your nonprofit threatened, but one of the problems here is that sometimes the controversy of a given nonprofit is not known for a while. Yeah, I don't like that test at all. Exactly. The ACLU will go for a decade without anything controversial, and then it'll have the Skokie case.

Right. Yeah, you can be a hero of the republic for years, and then you run afoul of, you know, Twitter, or you run afoul of, you know, the, you know, you run afoul of your local government officials, or you run afoul of the political majority in your state, and all of a sudden you become controversial. So I don't know. No, I reject that entirely.

And I reject it for other reasons as well, that the law can't just protect you when others don't like you. Either the law protects you from this or it doesn't. And it doesn't matter whether they're coming with pitchforks or just strongly worded letters to the editor. Right. Exactly. Exactly. And yeah, in Sotomayor, her dissent, it seems to me, is just putting an unbelievable burden on the individual who is, by the way, engaged in First Amendment protected activity. That's one of the core elements here you have to realize is what we're talking about are these nonprofits are engaging in First Amendment protected activity. And this disclosure requirement is a condition of operating as a nonprofit operating in the state.

And so, yeah, I was singularly unconvinced by the Sotomayor dissent. Before we move on, though, let me indulge in a little bit of a pet peeve here about this case. Already you're seeing a really bizarre way of talking about this case. So I have two, here's exhibit A. This is the NPR story that was immediately written after the case. The U.S. Supreme Court on Thursday sided with rich donors and their desire to remain anonymous against a state law aimed at policing the finances of charities and other non-profits.

By a vote of 6-3 along ideological lines, the court struck down California's law requiring non-profits to file a list of their large donors with the state. I got problems with that framing. Don't love it. Don't that framing. Don't love it.

Sarah. Don't love it. Don't love it. Don't love it. And then here's one that is just absolutely cracks me up. All right, here is a tweet by the National Legal Director of the ACLU. Well, the court managed to rise above the partisan divide this term until the last day when it got to voting and dark money. Today, the court divided 6-3 along partisan lines,

making it easier to prove voter suppression and easier to hide large donations. donations. What is missing from that tweet from the ACLU, Sarah? One thing that is missing is the fact that the ACLU won. It filed an amicus brief seeking to make it easier to hide the No, David. Wow. Yes. Wow. That's egregious. That is so egregious. And is not a nobody. This is the National Legal Director, ACLU.

This is his Twitter bio. Professor at Georgetown Law. Whoa. Whoa. professor at Georgetown Law. Whoa, whoa. And I, you know, in fact, I'm looking right now, I am looking right now at the ACLU's brief in the case, brief of the American Civil Liberties Union, American Civil Liberties Union Foundation, NAACP Legal Defense and Educational Fund, Knight First Amendment Institute at Columbia, Human Rights Campaign, and Penn American Center in support of petitioners. Wow. Petitioners, Americans for Prosperity Foundation.

Okay. Hmm. Okay. Yeah. Well, speaking of nothing in particular, maybe in a future podcast, we'll talk about how the Fifth Circuit upheld the sanctions against Mark Elias for misleading the court in one of his recent cases. That's all to say,

lawyers should maybe be a little, a little more careful on when they're being tricksy in these things. You can come back and bite them. Courts don't like tricksy. A good Gollum word. I like it. Tricksy hobbits. Let's wrap on Florida and the tech bill, and then we'll call it a day. How about Florida and the tech bill, and very briefly on the FTC and Facebook antitrust? Oh, well, I thought they were the same thing. I mean, not actually the same thing, but I thought when you said tech, I thought you meant Florida also.

Yeah, Florida and yeah, just tech. Yeah. All right. guys know that we have talked at some length about ron de santis signing a bill passed by the florida legislature that is going to uh that is intended to dramatically limit the ability of social media companies with the exception of any social media company related to you know owners of theme parks in florida uh from content moderation specifically specifically requiring them, for example, to host the speech of political candidates, regardless of what those candidates say, host of limitations. And we don't need to go much into this, Sarah, but there was a preliminary injunction issued yesterday by a federal district court

enjoining enforcement of this law. So this law has been enjoined. That is not surprising. I just like the first paragraph. It says, the state of Florida has adopted legislation that imposes sweeping requirements on some but not all social media providers. The legislation applies only to large providers, not otherwise identical smaller providers, and explicitly exempts providers under common ownership with any large Florida theme park. The legislation compels providers to host speech that violates their standards, speech they would otherwise not host, forbids providers from speaking as they otherwise would. The governor's signing statement and numerous remarks of legislators show rather clearly that the legislation is viewpoint-based and parts contravene a federal statute. Other than that,

Sarah, there's nothing wrong with it. So that's one. And then the other is the Federal Trade Commission has dismissed an antitrust action. I mean, I'm sorry, the United States District Court for the District of Columbia has dismissed an antitrust action brought by the Federal Trade Commission against Facebook. And this has a little bit of nuance, but the bottom line is that, so pretty long opinion, lots of detail, but here's a good summary. The FTC has failed to plead enough facts to plausibly establish a necessary element of its Section 2 claims, namely that Facebook has a monopoly power in the market for personal social networking services. The complaint contains nothing on that score save the naked allegation that the company has had and still has a dominant share of that market in excess of 60%. Such an unsupported assertion might barely suffice in a Section 2 case involving a more traditional goods market in which the court could reasonably infer that market share was measured by revenue, units sold, or other typical metric, but this case involved no ordinary or intuitive market. Rather, a PSN service are free to use. The exact meets of bounds of what even

constitutes a PSN service are hardly crystal clear. In this unusual context, FTC's inability to offer any indication of the metric or methods it used to calculate Facebook's market share renders its assertion too speculative and conclusory to go forward. So FTC has a chance to re-plead the case it's not dismissed with prejudice but it just goes to show you can't walk into court and say Facebook is big and try to win an antitrust case so we got a lot of emails about why I said that antitrust law was made up quote unquote and I just want to put a pin that I have seen all your emails actually do plan to talk more about antitrust law was made up, quote unquote. And I just want to put a pin that I have seen all your emails actually do plan to talk more about antitrust on this podcast, but it is not

today. And you know why, David? Because today is Canada Day. That is the anniversary. It's Canada Day. And we have Canadian listeners. So I just want to say happy Canada Day to everyone, but especially our Canadian listeners on the anniversary of Canadian Confederation in 1867. I will now endeavor to learn what that is, but nevertheless, I do plan to go out and celebrate. So, you know, good podcast. So Canada Day falls on Bobby Bonilla Day. What's Bobby Bonilla Day? Oh, you're not familiar with Bobby Bonilla Day, Sarah. Let me enlighten you. This is the 10th anniversary of a contract that the, I like the way USA Today puts it, of a contract albatross that hangs around New York Mets, the New York Mets. And that is every day through July 1, I'm not every day, every July 1 through 2035,

the Mets write a check to retired slugger Bobby Bonilla in the amount of $1,193,248.20. $33,248.20. This is one of the most legendary contracts in modern sports history as they signed a contract with, I believe, a 25-year term or so. And it was paid out in piecemeal. And so every July 1, Bobby Bonilla gets his almost $1.2 million. So that's Bobby Bonilla Day. I did know about this contract, but of course for me, the relevance is the contract

and I forgot his name, obviously, or even what team he played for. But I got to say, there's an interesting strategy here as an agent. If you're going to want to make sure that your client is going to be kept quite comfortable for a really long time. This is a fascinating kind of contract to create, as opposed to, do you want to give

the client and does the client want the giant lump sum right then and there? This is the classic lottery dilemma, right, Sarah? It is. I mean, you always want the lump sum. But for instance, I would think in this case, because of the interest they can earn on that money, that actually he probably got paid more from the Mets if they could pay it out over the course of 25 years. And for him, for whatever reason, he thought, look, it's probably better for me or I don't mind just getting a million

dollar check every year instead of the lump sum with interest. So yeah, good for you, Bobby Bonilla. Good for you. Yes. Happy Canada Day. Happy Bobby Bonilla Day. And we'll be back on Monday. But before then, please rate us on Apple Podcasts. Please subscribe on Apple Podcasts and check us out at thedispatch.com.

And we will see you again with more analysis. And we're going to have some special guests. It's about to turn to that time of year, Sarah, where we have fun guests. So no disclosures yet, but we will have fun guests this summer and maybe even next week. So we will talk to you on Monday.

Thank you for listening. you