Advisory Opinions - Yale Anons

Episode Date: February 9, 2023

Friend of the pod David Lat challenges Sarah and frequent-guest David to think through the implications of different types of anonymous speech. Where is the line between a whistleblower in need of protection and a rumor-monger? Also: -The worst SCOTUS decisions, ranked (by Twitter-bound, partisan PoliSci majors). -Given ChatGPT’s poor grasp of legal history, will we win the coming war against the Cylons? [Producer note: David is wrong. The answer is no.] Learn more about your ad choices. Visit megaphone.fm/adchoices

You ready? I was born ready. Welcome to Advisory Opinions. I'm your host Isgur, joined by David French. And what a lineup we have today. We've got some corrections because we like to start with our own errors and faults as humans, but also on this podcast. Then we will do a little Yale anonymous speech, a debate that David Latt asked us to have. We're going to do it. And some, you know, follow-up thoughts, feelings on the Rahimi case that we talked about last time.

And then both sides of the legal, political aisle, ideological aisle, listed their worst Supreme Court cases. And boy, there wasn't a lot of overlap. And then finally, all those AI chatbots out there, they don't, they're not going to replace this podcast anytime soon. And then finally, all those AI chatbots out there,

they're not going to replace this podcast anytime soon. That's the bluff. So we'll talk about that a little bit. And thanks to Skoda's blog for doing some of the heavy lifting on that. David, you ready? I am ready, Sarah. And should we begin by me falling on my sword? I would love nothing more.

Okay, so I have two things, one an actual correction and one just an embarrassing omission. So the actual correction is, as a number of listeners sent me, the correction pronunciation of the district attorney for Fulton County, Georgia is not Fanny Willis, but Fonny Willis. So it is not Fanny, it is Fonnie.

My apologies to Fonnie Willis. So the other one is just really an inexcusable omission. In the last podcast, I talked about how the Murdoch murders case in South Carolina. And again, thanks to listeners who sent in and told us it is pronounced Murdoch murders case in South Carolina. And again, thanks to listeners who sent in and told us it is pronounced Murdoch, not Murdaugh, but the Murdoch murders in South Carolina.

I talked about how that reminded me of 1980s television where there were constantly roving, well-armed vigilantes who were upsetting small town oppressive power structures like the A-Team and Knight Rider and Airwolf, all of these small towns in the 80s that needed to have their dynastic families violently overthrown by marauding vigilantes.

And I forgot, Sarah, the paradigm, the peak, 1989 movie, Roadhouse. How could I have forgotten Roadhouse? It's really an inexcusable omission, considering that pop culture is really where I'm at the peak of my powers. Right, right.

Okay, well, just gonna stick a pen in that. Luckily, I've never said anything incorrect on this podcast ever, So no corrections from me. We'll zoom right on to Yale. So let's back up a little from when we last left our little Yale soap opera. they've had some events, David. So A, they had Judge Ho and Judge Branch who have both signed on to the future boycott of Yale clerks. They had them speak on campus, went on without incident.

But perhaps more importantly, last week they had Kristen Wagner return to Yale Law School. This is who was speaking last spring when the all hell broke loose event happened. And I mean, spoiler alert, it went really well. Like it went better than not having arguably violent protests shut down the event. I think it even went better than

just having a bunch of people sit there and do nothing like the people from some of the groups that most dislike ADF and Kristen Wagner attended the event. They hosted then their own event as sort of, you know, pushback like a separate event and FedSoc members attended that event. They hosted then their own event as sort of, you know, pushback, like a separate event, and FedSoc members attended that event. It's almost like speech, more speech, is the answer, David. Fascinating. Intriguing. Yes. And, you know, just more things that went right. One, Nadine Strawson was on the panel as, you know panel of American Civil Liberties Union fame from back in the day. Professor Robert Post of Yale Law School, who was dean until 2017. It also had a lot of buy-in from the administration.

Federalist Society met with them ahead of time. Obviously, a Yale professor was there. There's so much to say that was great about this event and that people engaged and the administration engaged and they had a plan of what to do if there were disruptions or anything like that. To have a Yale professor as moderator, obviously, I think is great. So that's all to say, the administration seemed to do a lot of

great things. The faculty seemed to figure out how to do this. And the students had great, two great events because of this. So a couple of things here. One, what does this mean for the future of the boycott? The boycott, of course, isn't in effect yet. It wouldn't go into effect until next year. Well, am I right? Yes. For the 1Ls next year, because the idea was the boycott doesn't apply to someone who wasn't on notice about Yale's free speech problems. You know, and this was always, I think, my issue with the boycott. You have to be boycotting something very specific so that we also know when the boycott's over. And there are certainly still problems at Yale Law School. There are conservative faculty, things like that. Conservative students, I'm sure, don't feel entirely welcome to say

whatever they want in class, whatever the thing may be. But that all gets kind of amorphous at some point. And at the same time, one successful event does not make a free speech haven. So that's sort of where that leaves off in terms of events, David. Do you have thoughts and feelings?

You know, one immediate thought that I had is I've seen this movie before. I've lived this movie before. And what it is is when a law school kind of starts to slide out of control, as we saw happen with Yale, as we saw happen with Yale. A combination of media coverage, kind of concern on the part of students that they don't want their school to be characterized in such a way, and administrative action can often snap a school that seems to be spiraling back into sort of its, have it come to its senses. And that's what happened at my law school, at our law school, between 92, 93, which was out of control, and my third year, 93, 94, which suddenly got more sane. And I think that it is what you see as institutions,

And I think that what you see is institutions, often when they receive an enormous amount of attention for really quite frankly indefensible conduct, it can have a corrective effect. And I think that what we're seeing is some of the corrective effect of a lot of coverage of some pretty indefensible incidents. And so that was my first reaction to it. There is a kind of a nature is healing aspect

that we see in some institutions, especially those institutions that at least aspire to a position somewhere other than completely ensconced in one sort of radical cocoon. So that was one of my first thoughts. And you can't say that any one person or any one news item or any one event caused the reversal of the changes.

But I think the sum total has clearly had an impact. So based on all of that, and I think what most people agreed with you, David, like, great, this isn't the end of everything. It's not like, aha, now we get to pack up our stuff and stop paying attention. But like, this is a good sign. There's a lot of good bricks

in the foundation being laid here. A current Yale law student who was involved in last year's protest wrote David Latt of original jurisdiction a little note. So this is someone who, again, was involved in the protest. Don't know exactly what the person did, what they think about it, nothing. But here we go. The current narrative is that the free exchange of ideas has returned to campus after the tragedy of last year's event.

But I think it's surprising that no commentator is questioning why students chose not even to engage in peaceful protests. There are a number of reasons this was the case, a desire not to have the media backlash of last year being a prominent one. But I posit that there are two significant reasons, both of which have serious repercussions

for free speech. The first was the change to the rights and duties of the members of Yale Law School, specifically the establishment of, quote, substantially interfering with the conduct of classes and, quote, substantially interfering with student-sponsored or student group-sponsored events or functions as major offenses. There are those who would cheer this one as a response to last year, but I think there are serious concerns about what these actually mean. Does a peaceful protest holding up signs constitute substantial interference? How about a silent walkout? Yale law students, as you know, are very averse to anything that would impact their careers. And so I believe that part of what led to not even a peaceful protest occurring was concern over what these rules mean. So I'm not that sympathetic to this. Substantially

and interfering have meanings. I agree that they're not literally defining every single thing you could do and putting it on one side of the line or other. But quite obviously, a peaceful protest holding up signs does not substantially interfere unless the signs are in the front of the room and the height of the event. Right. That would probably be a substantial interference. A silent walkout during the event?

I don't know. Did you substantially interfere? I don't think so. Unless while walking out, you, you know, stomped intentionally loudly and one person walked out at a time over, you know, like, sure, maybe it could, but probably not. Use your heads. Right. And also, Sarah, it's important to note this substantial interference language comes from Supreme Court First Amendment case law. Right. And I think what's interesting on the silent walkout thing,

in my example, where one person walks out every three minutes. Right. Of course, this would only apply to an individual. And so if the individuals didn't coordinate and they just saw an opportunity, I think it would actually be very hard to enforce against any one individual because they didn't cause the substantial interference.

Right. And, you know, you talked about signs, for example, and, you know, you just wish that a law student writing in would know that that phrase comes from Tinker v. Des Moines Area School District, in which the issue, now this was secondary education, the issue was somebody silently wearing, what, a black armband was the issue. And that was not substantial interference. A black armband is not very different from a sign. And then also, I don't know, Sarah, we only have hundreds of legal cases

over two generations sort of fleshing out substantial interference. So of all of the phrases that could have been used, there is perhaps the most guidance on that phrase. Because if you look at that phrase, it's clearly calling back to Tinker. Now, there are a lot of folks who say, wait a minute, I'm not so sure Tinker applies in the higher education setting. But I have been in cases where Tinker was applied in the higher education setting as sort of a, at the very least, you know, this is the level of protection

you're going to have. So this is not- And also that's irrelevant. It's just that Yale is adopting a standard. They don't have to. They're not constitutionally obligated to. They're choosing to. No, no.

Right. And I know Yale's private. And so all of that case law is not legally relevant, but it is certainly when you're choosing a phrase that is specifically in case law and you're saying, I don't know what that means. Well, then maybe look at what it means in case law and it'll provide some guidance. Yeah. I also just find it a little bit much that, you know, you really believe in what you say, as long as you know, for certain, there could be no personal consequences. But that's probably beside the point. Let me get to his second point, which I think is interesting. And there's no reason to think this is a he, I'm just using pronouns. Right. But by far the biggest concern, these are this person's words,

at least from my perspective, is the doxing of students. As you are probably aware, allegedly a member of the Federalist Society sent screenshots of three students' Instagram feeds to the Washington Free Beacon, which published those images. The Free Beacon reached out to at least one of these students' employers

and the students faced significant online threats. Similarly, an email sent to the Outlaws Listserv, this is an LGBTQ law student group, an email sent to the Outlaws Listserv was forwarded to the Free Beacon in relation to this most recent event where the student's email signature was published except for their pronouns, which were cropped out

and which the Free Beacon continued to misgender just seemed like an unnecessarily S-H-I-T-T-Y thing to do. I can't spell. I can curse, but I can't spell. Passing screenshots around has always been an issue. What with the Amy Chua related messages being passed around, that's from the other drama. We don't need to revisit that. As someone concerned about privacy, I find this abhorrent. But even more recently, I've experienced firsthand the impact on free speech these shared screenshots have. I'm a member of Outlaws, but not publicly out to my family. And so much of how I interact in our Outlaws chat is framed in what conservative

members of the group could potentially share and have a terrifying impact on my life. When members of FedSoc took a picture of the protest last year and the Free Beacon published those images, I was honestly concerned about what would happen if my family saw those images. And I know at least a couple of students who did not attend the event out of concern they could be potentially outed to their families.

Interesting. So this is the main thrust of what I wanted to get to, and the main point that David Latt was asking folks like us to debate and think about and see where we come down on. Should law students be able to protest anonymously? Here's some of what David Latt said. Ivy School as a period of experimentation and exploration, and one reason I've argued against holding college writings against judicial nominees is because of the chilling effect it would have.

Students would be much less willing to experiment, explore, and write and say controversial things, all valuable parts of the educational process, if they felt that their words and deeds would come back to haunt them years later. He also notes that one of the reforms that Yale instituted in the wake of last year's protest was a ban on surreptitious recordings. In announcing the ban, Dean Heather Gergen pointed out that it, quote, mirrors policies that the University of Chicago

and other peer institutions have put in place to encourage the free expression of ideas. And although the ban received criticism from both the left and the right, one can see the logic of it. Students would be much less willing to participate in discussion, especially to voice a controversial opinion or to play devil's advocate, if an out-of-context snippet of their remarks could make its way onto Twitter or TikTok. Okay, but, for instance, one law professor has an entire blog post about anonymous law students filing complaints. Do you remember the law students who claimed that they were retaliated against over, again, the Amy Chua debacle that we're not going to actually get into the details of here? They filed a lawsuit anonymously and the judge denied them anonymity, and in fact, they have now had to put their names on it, there's a strong default rule, as David wrote, that legal proceedings are

public, which is why some judges are starting to push back on parties' requests to seal records that don't meet the high standard for sealing. So, my David, here are the questions from David, lat comma David. One, should law students be able to protest anonymously or at least without having their names showing up in news articles? Two, should law students be able to file internal complaints with the administration, whether against professors or fellow students, anonymously? Three, should law students be able to file lawsuits, whether against their schools or professors or fellow law students, anonymously? Three, should law students be able to file lawsuits, whether against their schools or professors or fellow law students, anonymously? David, I feel like three is very easy to answer for me.

Go ahead and answer it, because I'm very curious. No, no, law students don't have a special solicitude in the courts, any more so than, you know, any person who is 22 years old and filing a lawsuit. They don't get anonymity because they're worried about their future careers. Like, no, the law students do not get to file their lawsuits anonymously, different or apart from the rest of the public. Now, there are some anonymous lawsuits. Again,

as David mentioned, it's incredibly high standard. To the extent you meet that standard and happen to be a law student, obviously, great. But being a law student should not help you meet that standard. That's where I fall in number three. I think that's the easy,

I agree with you 100%. I think it's the easiest question in the world. The fact that you're a student is not an additional factor granting you a right of anonymity. I do think that students can conceivably have a right of anonymity when they file, but they have to meet the pre-existing standards that apply to everybody regarding anonymous filings. And so I can imagine specific scenarios where there is, for example,

a credible allegation of threats to physical safety, credible substantiated allegations of threats to physical safety. I can imagine that kind of situation, but no special status. And Sarah, it is a very high bar. One of the very first speech code case I ever filed, the students were really nervous

about filing the case under their own names. I'm terrified. And we initially filed it as a John Doe, Jane Doe case. And the defense immediately made a motion to have their, you know, for the filing to be in their real names. And I think I lost that motion to preserve their anonymity or that. And it was like, I don't even think the court, I don't even know if the court like took the time to proofread the order, rejecting the request for anonymity. It was, we lost,

but then we lost that motion for that, that quest for anonymity, but the students continued anyway. And we won the case. We got the speech code struck down. But yeah, I'm, I'm completely with you. The same factors that create a right to anonymity anywhere else should apply in campus. And your student status is not, should not provide you an extra, an extra boost in extra boost in your quest for anonymity. So we're on the same page. Okay, then let's take up the next one. And by the way, just mentioning back to that lawsuit.

So obviously the judge said, nope. Actually, I would say the judge came very close to saying, nah, dog, to the idea of letting them continue anonymously. They put their names on it. The lawsuit's moving forward. All right. Now we're going to go in reverse order. Number two, should law students be able to file

internal complaints with the administration, whether against professors or fellow students anonymously? This is obviously a little harder, especially when you think about filing a complaint against a professor who not only, you know, might be currently teaching you, might have say over your grade, you know, obviously that person, if you're filing a complaint, probably wasn't going to be your recommender. But if they tell other faculty members that you filed a complaint against them, you sort of get a reputation for being scary,

difficult, who knows, whatever your complaint happens to be about, that could affect your ability to get a recommendation from other law professors. And recommendations from law professors are incredibly important in law school and especially at Yale Law School. Yes. Where they don't have grades.

Yes. So David, where do you come out on this? So I have a concern about it. And one of the concerns is due process. So... A pretty big one, I would say. Yeah, it's a big concern. So how do I defend myself against an anonymous complaint?

That is a question that I have. And look, you know, the way the law typically deals with these kinds of issues is by establishing very strong protections for whistleblowers. So that's the way we deal with this typically is you have whistleblower protection the instant you blow the whistle. And so you can actually, in these whistleblower protections, can be strong enough that even if my allegation is unsubstantiated, I still can't be retaliated against for making the allegation under these whistleblower rules. And so, again, I'm much more along the lines of treating these adult students the way we treat adults in other places. And when you have an anonymous complaint, it becomes very difficult to defend yourself against an anonymous complaint, which requires searching, inquiry, and often cross-examination when it comes to an actual proceeding. And so I'm much more in

favor of filing in your name unless, again, the factors that exist traditionally under law that allow you to be a Jane Doe or a John Doe exist and then have strong whistleblower protections. That's so funny, David. I feel like that's the most in line with David's entire life philosophy. Like no matter what question I ask, the answer is more speech and more protection, if that makes sense. Yeah. Yeah, correct.

Yep. I mean, as we'll come out through the rest of this conversation, I am generally just not a big fan of anonymous speech. So for me, if you have a complaint, I would also think that you would want that process to be able to work. And the process can't work unless the person can answer the specific charges. And the charges aren't specific unless they know who they are. I think there are serious repercussions and I don't want to downplay those. It's not that I

think this is easy or that someone who wants to remain anonymous is chicken or stupid or snowflakey, not at all. I think that would be really hard to file a real complaint against a professor. But I also think, and maybe this is where you and I differ, David, that there's sort of different levels of anonymity. Like if you have an anonymous dropbox for complaints, electronic or in person, and nobody knows who you are, that's useless. It's useless to the school. It's useless to you. It's useless to the person we're trying to deal with who might be a problem on campus. you. It's useless to the person we're trying to deal with who might be a problem on campus. However, I can imagine some scenarios that are short of the legal standard, which is just so high, where the school administration knows who the student is, knows what the specific incident is, and feels that there is a way to anonymize the student without anonymizing the incident, if that makes sense. For instance, to use an example that we talked about in a different context and not in law school, a professor showed a picture of Muhammad in art history class. You don't actually need that

specific student's name to file that complaint. Now, I think the administration should know who the student is because they need to know what day the class was. They need all sorts of details. But beyond that, the professor probably doesn't need to know which student complained about that because the complaint itself isn't about anything specific to that student, if you will. I see that point. I can imagine a situation where somebody anonymously and surreptitiously records a class, for example, and provides a recording of the class as a situation where for the professor to, you know, for the professor to answer the charges, it's not necessarily, it's not necessary to know the name of the student who provided the recording, assuming the recording can be authenticated and validated, I can see some specific instances. And as I said, like my response is sort of, here's the general standard. And if you can identify some specific instances where the general standard is not really sufficient to address.

I could go along with that. But the general standard is, for me, is put your name on a complaint unless you're in that traditional sphere where anonymity has been protected by law. has been protected by law. All right, David, here's the fun one. Should law students be able to protest anonymously or at least without having their names show up in news articles? I just feel like this is actually also very easy because all I need to do is point out

that the word should is pretty irrelevant to this conversation. Can law students be able to protest anonymously without having their name show up in news articles? Nope. No. So the should might be an interesting hypothetical conversation. That ain't real life anymore. Maybe 30 years ago, we could have had this conversation of whether the school itself

should have a rule about students, blah, blah, blah. I get their point. They want a rule that says that a student can't forward listserv emails outside the law school community. But even look at what this student said. Allegedly, a FedSoc member, yada, yada, did this this thing they don't even know who it was right so huh yeah this is not like this to me is the easiest of the three and and none of the three were that hard um and then the protest now the most of the protest was happening in a law school building which is private property but i I mean, you walked in there, you used public sidewalks. If you publicize the protest, obviously, so nobody's allowed to take pictures. Reporters aren't allowed to note who you are.

What if they just know? That's just not realistic. And frankly, this is the one where it betrays a certain lack of maturity to think that that's something the world can give you. Right. I take David Latt's point very seriously that I do think school, law school,

high school, whatever is a time for intellectual experimentation, trying different hats on and seeing which one feels comfortable, feels like you. And part of that's making an argument, whether we want to call it devil's advocate or not. You're, at least for me, that's very much how I learned. Yes, I wish we could give everyone anonymity to explore that. That's not realistic. Anything that I said in class 15 years ago, I still have classmates bring up to me.

Oh, for heaven's sakes, me too. Yeah, so like, it never was anonymous. It's not going to be anonymous. I think the protest aspect of this makes it even sort of sillier, if you will. Nothing you're doing is anonymous. Get rid of your iPhone and live off the grid if that's important to you.

So what I would say is, and especially considering that this was a nationally significant protest at a nationally significant institution, one of the most important legal institutions in the entire United States of America, training future congressmen, judges, including people who could run for Congress

the very day they get out of Yale Law School. I mean, we're not, again, it's so important to realize, to understand, we're not talking about kids here. We're talking about people, most of whom have spent time between college and law school. We're talking about people who are not freshmen in college. And the real question to me isn't so much,

should they be anonymous when they're publicly protesting? To me, that is the easiest answer in the world is no. The response should, the really interesting question is five years, 10 years, 15 years from now, what should be our reaction to that past conduct? And there I'm much more sympathetic to the David Latt position, which says, look, we don't need to be tying and chaining people down to their actions 15 years ago, especially if they express that this is no longer what they believe

or no longer how they behave. I totally am on board with having a lot of grace for people, not just for actions 15 years ago. I'm a big fan of grace, period. And so having a lot of grace when people are repentant for actions five minutes ago, I believe in grace. And so that's a how should we react versus how should they be protected from people knowing about their own actions? And to me, those are different things.

And we should have abundant grace, but they should also know that they're going to have to answer for public actions that they take. And so again, to me, this was really, really easy. But I didn't think that David asked the most interesting question, Sarah. So can I ask you the most interesting question? Someone is on a listserv or on Instagram in their real name, right? But it's a protected Instagram account or whatever the term of art there is, a private account in Instagram, but they have hundreds, maybe dozens or hundreds of friends on a private account, or it's a listserv that's a private listserv, but sending out to dozens or hundreds of people under your real name. How do you feel about if someone cracks the wall and broadcast somebody's

real name who would rather be anonymous in the wider world. Yep, same thing. It's not a should, it's a can. Like that's impossible to prevent. You've voluntarily joined Instagram. And yes, I understand that Instagram has told you there's a way to limit some settings so that random other people on Instagram

can't see your stuff, but they never promised you privacy by definition. This is social media. And same with listservs. And, you know, the student, to go back to what he said, he said, as someone concerned about privacy, I find the sharing of this email

on the listserv abhorrent. Look, no, this doesn't rise to the level of abhorrent. This was a student sent an email to the entire Outlaws group. And it's basically the rules of the road. He had talked to, he was a leader in the group, and he had talked to a couple of the administrators about the upcoming event. So here's the email. First, press and other non-YLS community members will be barred from the event. Second, as of now, FedSoc has now put in a request for the university to record the talk. Third, we have not yet been able to get a definitive answer on what steps YLS plans to take, if at all, to minimize the risk of attendees recording or

taking photos of people at the event on their phones. Fourth, YLS, as you may know, has adopted a new policy of prohibiting surreptitious recordings of others. Fifth, and finally, in the event that there is doxing of the kind that happened last year, we pressed the administration to take a stronger and more public stance in support of those affected than they did last time. We hope this helps. Reach out to those of us on the board of Outlaws if you have any questions. Love and solidarity, Henry. First of all, I think that's a great email from Henry. But also, I don't know. This wasn't an informal email either. This is a pretty formal email sent to a group by someone who's on the board of the organization, David, I'm sure at some point I would feel differently if someone, for instance, hacked a Gmail account

to get private emails between two people. Yes. In some ways, it's similar to the Instagram thing. You still voluntarily put your information on someone else's private company server to send that email. At the same time, I think the expectation of privacy is quite different than when you're sending an email to send that email. At the same time, I think the expectation of privacy is quite

different than when you're sending an email to hundreds of people. And then one of those people who received the email chooses to share it. That's pretty different to me and not abhorrent, but rather kind of expected. And again, not just in 2023, but like in 2005. Well, and that might be crappy, and it might violate the friend code. But if you're a reporter and you're receiving that kind of information, that's a no-brainer. If it's a matter of public concern and relevant to your reporting that you publish, I would say that in the absence, again, of compelling evidence that you traditionally use to keep individuals and sources confidential. And the thing that I would also say

about this is I also get that I do get this idea that in certain circumstances, I'm, I might be communicating in a way that I wouldn't want my mom and dad to see. Yep. I feel that, man. Absolutely. And I'm also somebody who is, I have long defended anonymous speech. But the thing about anonymous speech, Sarah, that I've defended, it's anonymous. This wasn't anonymous speech. Right. anonymous. This wasn't anonymous speech. Okay. This is somebody in their real name,

sending out messages into a select, a select group of people, whether it's on Instagram or in a listserv, that's not anonymous speech. Anonymous speech would be going to the administrator of the group, whatever group it is and saying, I have real concerns because of family or because of physical threats that I've experienced in the past or whatever. Can I participate in this listserv under a pseudonym? And an administrator could say, yes, you may, now that you've validated that you're, you know, to me privately validated that you're a member of the community, meet the criteria for being in it. And then I send out an introductory, you know, if you read winter is coming 2023, that is a Yale student who wishes to remain anonymous for reasons that we believe are valid.

You know, and you go forward and you take the steps that you speak. And if you want to be an anonymous speaker, be an anonymous speaker, not someone who uses your own name in groups that in emails that reach large numbers of people and then say, that's anonymity because I want the club to keep my secret. No, that's not quite the same thing. All right. Well, I think we've answered David Latt's questions as far as we're concerned.

I'm curious what other people think about this. I don't think this is cut and dry, as I said. I think schools are a different space on number one, not on two and three. And you could imagine a school trying to set up a space where students could talk more freely without fear that anything they say is going to get sent to their future employers

or is going to get put on the internet for their family to read. That sounds like a nice place. I just don't think that's very realistic. And so instead, I would rather adopt what you said, David, much more radical grace for what people say in those contexts. Maybe all of us should be less into it all. And two, that you're going to have to take some steps to protect yourself as well. And that doesn't mean it's good or right or there's no should here.

There's just the can. And I don't know that a school can build that space. Right. No, I don't even think it's possible to build that kind of space. And I think the lesson here, if you are very worried about your speech and you're very worried about reprisals, then you need to think hard about whether or not you want to be speaking under your name. And if you don't want to speak under your name, the primary guarantory of your anonymity is you. You are the primary guarantory of your anonymity.

That's so true. But I think I just disagree with you, David, on the value of anonymous speech. I devalue anonymous speech. It's not that it has no value. Obviously, there are the Federalist Papers, though, to your point, David, they wrote under pseudonyms, a bunch of good have did them.

We know who wrote every single one of them. We know who wrote every single, yeah. So even back then, it wasn't really possible. But anonymous speech in most real world scenarios is ID value because it's devalueable. Look at Twitter. Right. Look at any of these chat boards

where it's a whole bunch of people spouting nonsense and you have no idea who they are, whether they're telling the truth about who they are and generally i think we found they're not um and unfortunately for the people who then are telling the truth but want to be anonymous it's sort of a tragedy of the commons problem so i'm not sure we even live in a time anymore where anonymous speech works because it's not valued because it's not valuable in the spaces that allow it if you had an entire listserv that was all anonymous yale students i promise it would be a dumpster fire i would be total dumpster fire and absolutely i mean it would be twitter um and then which is just with a lot more here to force yesrun with a lot more here to force. Yes, Twitter with a lot more here to force.

Comes now, winter is coming 2022. But anyway, I agree with you that how I subjectively view anonymous speech is absolutely in line with you. If somebody is, you know, deplorable Bob 17325, I don't care really what they have to say, right? I don't care. But would I want a government in the First Amendment context? I'm very suspicious of the government stripping away anonymity.

Now, again, I'm not talking about lawsuits. I'm not talking about lawsuits. But I do believe strongly in First Amendment protections for anonymous speech, and including in certain circumstances, even in public litigation. But it is completely up to me how much I value that anonymous speech.

And the general answer to that is, absent compelling circumstances, I don't. Yep. All right, moving on. You have some follow-ups, some feelings, some notes on our Rahimi discussion. Yes, so we had some really good comments about the Rahimi case.

This is the case we talked about at length last time, the Fifth Circuit case, applying the text history and tradition test, striking down the prohibitions against gun ownership on people who have received a domestic violence restraining order. And there's a couple of things that I specifically want to address. One simple, one more complicated. And there was someone, and I can't remember, I don't have the exact phrasing in front of me, but the question was something along the lines of, well, wait a minute. When you're talking about criminal proceedings, you're talking about actually deeming action unlawful. And when you're talking about civil proceedings, you're not doing the same thing.

So a civil domestic protection order isn't dealing with lawfulness or unlawfulness. And this is a very common mistake that folks make when they're looking at the law. If something is unlawful civilly, it is still unlawful. It just doesn't, the penalties for breach of the civil law are not criminal penalties. They're usually financial penalties, for example,

or they can be injunctions. But if you breach civil law, it is still unlawful. You have behaved illegally. But it is not the same thing as saying, the question is, what are the penalties to, if you're going to classify something as criminal or civil? So violating my first amendment rights with a speech code is unlawful, but it's not criminal. And so the criminal code is a subset of the larger, you know, sort of code of laws in the United States. So I just wanted to get that out there because it is a common, I think, a common misconception amongst non-lawyers that you behave illegally only when

you've been subject to criminal penalty. No, you can behave illegally and be subject only to civil penalty. So that's one. The other questions were very much related to, okay, concretely, what would be the difference in a strict scrutiny kind of analysis versus a text history and tradition analysis, which I thought, Sarah, was an interesting thought experiment to perform. And we didn't really perform that thought experiment because we were trading off little mini rants. Yes, it'd be interesting to perform and we did not perform. Specific performance was not completed.

Please. Yes, correct. Tweet it, please. Yes, correct. So I thought that it would be worth exploring how would a layers of scrutiny test apply to, for example, this specific case. And so I think it's easy to, it's kind of easy to walk through it

as we have walked through. Rational basis review, the lowest level of scrutiny. If you applied rational basis review, which really level of scrutiny. If you applied rational basis review, which really wasn't an option when the Supreme Court was deciding the menu of potential levels of scrutiny to apply to Second Amendment cases, the government wins. The level of scrutiny that had been traditionally applied in multiple circuits to Second Amendment cases was intermediate scrutiny, which really, as you and I are, I think we're both a little cynical about that, which is it's kind of what the judge wants at that point.

There isn't really any deference to the government. There really isn't so much deference to the litigant. It's deference to the judge. It's deference to the judge. Great way of putting it. And then strict scrutiny. This is the, when strict scrutiny is applied,

there must be a compelling governmental interest advanced by least restrictive means. And let's just super briefly walk through what that would mean here. Is there a compelling governmental interest in protecting women and children from domestic violence? That's the easiest thing about this whole test to answer, yes. Absolutely, this meets the compelling

governmental interest prong. Least restrictive means. Now, this is where I would say that the government has a very strong case that this is least restrictive means because you're talking about an individualized process with notice and an opportunity to be heard to contest the claim that you're a danger to a spouse, a live-in girlfriend, intimate partner, whatever, kids, that you have, and there is an individual opportunity to be heard and an obligation to present evidence. So would there be compelling governmental interest?

Yes. Least restrictive means? I would argue, yeah, you're meeting that test versus if you had a blanket gun ban. Domestic violence is a problem. So let's say all husbands must be stripped of weapons. Compelling governmental interest. Yes, there is a compelling governmental interest

in preventing domestic violence. Least restrictive means. Heck no, heck no. Not least restrictive means because it's a class-based deprivation of a right which the courts are always going to frown upon and so that's the kind of that's the difference in the analysis and how does this sort of match with originalism how how would this match with originalism that's a really good question. So when you're looking at explicit

constitutional protections, by and large, we know, for example, they're not unlimited. There's the, you know, when it says Congress shall make no law respecting the freedom of speech, the words, the freedom of speech have never been held to mean anything that comes out of your mouth. Like if I hold you up in a dark alley and they say your money or your life, I'm speaking words, but that is not part of the freedom of speech. And so the virtue of the layers of scrutiny is that particularly when there's strict scrutiny, you have the constitutional text, of scrutiny is that particularly when there's strict scrutiny, you have the constitutional text, which evidences the original intent to place a high value on this liberty interest.

That is the intent, a high value on this liberty interest. How do you place a high value on the liberty interest in an evolving and changing society? This layers of scrutiny to me seems to be a quite faithful to original intent means of protecting those liberties which explicitly in the text have a high value placed upon them. So that's my shot at an answer. Sarah, what do you think? I like it. I think those were all helpful points to make. Well, good. Outstanding. We've settled that. Everyone will agree with us in the comments.

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Use code advisory at checkout to save. Terms and conditions apply. Next up, worst Supreme Court cases. Now, neither of these are actually like particularly scientifically done. One is from two conservative scholars, and one was put together by hashtag poli-sci Twitter. So that's liberal. So this is absolute the gold standard. That's right. But nevertheless, I thought it was actually really interesting. So you want to start with the conservatives or the liberal list? Yeah. So this is to start with the conservatives or the liberalist? Yeah. So this is ranking the worst Supreme Court decisions. And let's start with the conservative one. Okay. Number one, everyone can guess what the number one worst Supreme Court decision is. Dred Scott, right? Right. Establishing that a human being can be property.

Launched the Civil War. I mean, there's endless things to be able to say. It was also just legally bad. Oh my gosh. This is, remember we talked about how this sort of starts, creates this idea of substantive due process. You know, the face that launched a thousand ships,

Dred Scott. Number two on the conservative list of worst cases, Roe v. Wade. Number three, Plessy v. Ferguson. That's separate but equal. Number four, Planned Parenthood versus Casey. That's the follow-on to Roe v. Wade. Number five, Obergefell. That's gay marriage. Record scratch noise. What? Number six is Griswold. That's birth control. Number seven, Wickard. That's the commerce clause. The wheat guy growing wheat in his own backyard that he was engaged in interstate commerce. Buck v. Bell is involuntary...

What do you call it? where you can't have kids? Yes, involuntary sterilization. Sterilization. Thank you. That's the nice word. Nine, Korematsu v. United States. That is Japanese internment. And number 10, Lawrence v. Texas, which was striking down a criminal law against sodomy. Okay, now there's certainly some through lines here, David.

So Roe, Casey, Obergefell, Griswold, and Lawrence are all right to privacy cases. To varying degrees. Obergefell's a little different, but I think you can put it in the bucket of the reason why we hate it. And I'm using we here not to refer to you and i um and then obviously dread scott and plessy things you have to say um wickard is the only commerce clause case and then buck v bell and Korematsu, I sort of put into the Plessy and Dred Scott bucket

of just really egregiously bad in terms of treating people like human beings. Yeah, I put these, aside from Wickard v. Filburn, which I think is a very bad case, I put these into the top 10 into two categories. And I think the list is messed up because I think the absolute worst category is offenses against originalism or sort of the offenses against my judicial philosophy that are also profound offenses against human beings. So like Dred Scott,

offense against my judicial philosophy, which is a profound offense against human beings. So like Dred Scott, offense against my judicial philosophy, which is a profound offense against human beings. Buck v. Bell, Korematsu for crying freaking out loud, the internment of Japanese Americans. I put Roe in that category as well, an offense against the humanity of unborn human beings. So you have offenses against your judicial philosophy. In other words, just misreading and misinterpreting the Constitution in a way that is deeply, that deprives people of fundamental human rights, right? Now, the other cases like Obergefell or Lawrence v. Texas or Griswold v. Connecticut, I don't, I see that as like a category error. I can't even, in my mind, put them in the same, anywhere within shouting distance because there the dispute was, does the Constitution grant this sort of fundamental individual liberty or does it not?

And that's a very different kind of moral weight and gravity to a decision than, say, Dred Scott or Roe v. Wade. And, you know, in many of these cases like Lawrence v. Texas or in many of these cases, the question, you know, for I think a lot of folks in very goodwill could say, from a policy standpoint, the way it ends up treating human beings, this was a good decision. From a constitutional interpretation standpoint, this wasn't a good decision. Yeah. And that's, to me, that's just a whole different category from,

yeah, this was bad constitutional law and it resulted in slavery and internment and involuntary sterilization

and dismemberment. I think, I think if I were to ask this question, I would ask it very differently because I want to actually

exclude the Dred Scott Plessy Korematsu bucket because I want to actually exclude the Dred Scott, Plessy, Korematsu bucket because we kind of all know what those are. Everyone agrees on what those are. If you're asking what are sort of legally have caused the most harm to the law or something like that, I don't know. You'd need to find a way to basically be like,

what offends your legal ideology the most? Right. And that doesn't mean, for instance, that Plessy v. Ferguson wouldn't be on my list or Dred Scott for that matter, but actually probably Korematsu or Buck v. Bell wouldn't because they don't have a whole progeny that comes after them.

True. So in terms of sort of violence to the law, less violence to human beings and their inherent dignity, off the charts. Right. But, you know, for instance, later on in the list, they have Employment Division versus Smith. God knows you hate that case. They have Lemon, David. They have many of your zombies. Yes. And I just think if you're mixing these all together, you kind of miss out on what's interesting about the list, if you will.

Right. Like what does worst mean? Speaking of that though, that takes us to the other list. This one is interesting. Yes. This is liberal poli-sci Twitter. Because again, liberal poli-sci Twitter,

which Supreme Court cases are the worst of all time? Spoiler alert, Dred Scott isn't number one. In fact, it's number six. So let's go through the list. One, Citizens United v. FEC. Oh, do I have an album record on this, David? Oh my. So I know everyone who's listening has heard of this case,

but I've actually found that very few people understand the holding. They think it like created super PACs or something. Not quite. Citizens United was about whether in corporate form you could distribute political speech. In this case, it was a documentary about Hillary Clinton that was created and distributed

by a corporation, Citizens United. And so the underlying question of whether corporations have speech, I think isn't actually really what it's about because every time you've watched a documentary that has anything to do with a politician, it would be affected by the outcome of Citizens United, more or less.

But we'll get back to that one. Two, Korematsu, that's Japanese internment. Three, Shelby County v. Holder. Another recent case, this was on the Voting Rights Act and the preclearance requirement. And so David, when the Voting Rights Act was first created, and then

they had certain states that were particularly egregious in their discrimination, couldn't change their voting laws without getting it pre-cleared by the Department of Justice. That list was updated once, but about 40 years ago. And so what Shelby County held is that Congress can create a new list if they want, but this one no longer passes muster. It's been 40 years. There's obviously places that are missing that have much higher levels of findings of discrimination. There's places that are on it that shouldn't like no longer apply. So that was Shelby County. Four, and this is fun. Oh, I...

Marbury versus Madison. I'm mind blown, man. Yeah. Mind blown. So this is judicial review. I'm not really sure what that guy's doing on there, to be honest. I'm really stumped by that.

I know conservatives who are upset by Marbury versus Madison, but I didn't realize liberals were so mad about it. Conservatives, this is part of the Jonathan Mitchell, do you remember the bounty hunting abortion case, right? This whole thing is that judges shouldn't be the final arbiters of what is lawful or constitutional.

That each branch sort of should decide, there's a whole, you know, this is a whole legal theory that's out there, but it's on the right. I just figured it out in this moment. Yes. What's going on. Yeah. But anyway, continue with the list, but I have figured it out, Sarah, and it makes all the sense in the world. Number five, Buck v. Bell. That's a sterilization case. Number six, Dred Scott. Number seven, Bush v. Gore. Number eight, West Virginia versus EPA. That's that very recent climate change case.

Number nine, Burwell versus Hobby Lobby. That's about private organizations paying for birth control. And number 10, Plessy v. Ferguson. Ad is a different list, man. So I have the unified grand theory of this list. Okay. So let's take two. What are the

two characteristics of this list? One or the three? One, they're political scientists, not legal scholars or historians. Number two, they're on Twitter. Okay. So that's going to mean they're going to be if all other, you know, compared to all other communities, you know, I don't know if poli-sci Twitter would be the aberration, but generally, if you take any community, the people in that community are generally to the left who are on Twitter. The subset of that community on Twitter is generally to the left of the community writ large.

Which in this case would already be left-leaning. Yes, that's number three. It's a left-leaning community to begin with. Yes. So they're political scientists, left-leaning, and this is probably the most left-leaning cohort. So what is it about some of these puzzling wins that really start to make sense?

They are what I would call the win-liberals-l lose politically cases. So a lot of people on the left blame Citizens United versus FEC for really, you know, the rise of enabling a lot of the rise of a lot of sort of right wing political activism. Shelby County v. Holder, they blame to attribute to direct, directly attributable to negative electoral outcomes. Bush v. Gore, enough said. And that's where

Marbury v. Madison comes in. You ain't gonna love judicial review when it's a 6-3 conservative court. Oh, great point. Yeah. Yeah. By the way, note that Dobbs, which I would have, if you had told me Dobbs was number one, I'd be like, yeah, that makes sense. It was number 13 By the way, note that Dobbs, which I would have, if you had told me Dobbs was number one, I'd be like, yo, that makes sense. It was number 13. Number 13. Yeah. Yeah. West

Virginia, the EPA, it's again, this is one of these things where you're talking about pulling back, for example, the administrative state, which is disproportionately a left-leaning institution. This is the list of, here's a case that's bad I know from history, and here are the cases that really tick me off because Republicans use them to win. I don't understand the Citizens United thing. Don't get me wrong,

it's been incredibly effective for the left as a rallying cry, but what is the alternative, David? Because either, I know. It's that nobody can ever put out material on a candidate who is not themselves a political committee recognized by the FEC. So the Daily Show, any movie that you've seen talks about a candidate. All of those would be banned. talks about a candidate, all of those would be banned. Okay, so number one, you just can't do that. That would be one outcome. Number two, you can't do it in corporate form. So if you wanted to create that, you know, Donald Trump is a terrible human being documentary, you would have

to just do it as like, Sarah and David, you would not have the benefit of an LLC or any sort of corporate, which is just not how anyone functions in the world. So all of a sudden, all these Hollywood production companies, the streaming services, like you would basically have two streaming services, one for all of your regular content and then a tiny little one just for political content.

That makes no sense. Everything has to become like a general partnership with like unlimited liability. Unlimited joint and several liability. That makes no sense to me. And number three, I get, I think I have the right understanding here that instead it's like, no, we just want to limit speech, but you don't. Nobody wants that outcome. Like not when you actually play the ball through, or we don't want money to equal speech. Fine. But the money isn't what equals the speech. Nobody actually says that $10,000 is speech. But let me put this in different terms. If I say you can't spend more than $25 on an abortion, nobody would say that money equals abortion. It is not the money that

is the right. It is the access to the right that the money provides. And any number of our rights sometimes require an outlay of funds. So if you want to buy a television ad for your speech, you have to spend money to do that. I just, how would they want Citizens United to come out considering how speech works? I don't get it. I find Citizens United so, so confusing. It's one of those things where something becomes such a common talking point. It's just like been meme-ified. Yeah. And look, to the extent you hate super PACs, I promise you, I hate them more.

Citizens United didn't create super PACs. BICRA created super PACs, the Bipartisan Campaign Reform Act. Like all of our campaign finance rules created super PACs. Texas, Pennsylvania, Virginia, they don't have super PACs. Why? They have no limits, full disclosure.

If we had that, nobody would have a super PAC anymore. And you know who would be happiest about that? Candidates. You are singing my song, Sarah. Oh, Citizens United gets me so worked up. Them too, them too, but just in a different way. But I think, let's ask listeners, give us your worst 10.

Yeah. I'd love to see your list. Yeah, and hop in the comments section, become a member of the dispatch, hop in the comments section. I'm very curious, especially if you've got some that obviously weren't on that list. Let's just all stipulate.

Two, Buck V. Bell, Korematsu, Dred Scott, and Plessy B. Ferguson Ferguson we don't need to order them don't care about the order just they're gone take them off your list what else is there? right all right David

you could just say number one all the dehumanizing Supreme Court cases that's the stipulated number one and then go from there so I just love this investigative reporting that SCOTUS blog did and I wanted to give it a shout out. They asked chat GPT, the AI chatbot that you can ask questions to, name three noteworthy opinions written by Ruth Bader Ginsburg and summarize them. All right. US v. Virginia, that was the VMI case.

Ledbetter v. Goodyear-Tyre, that was the statute of limitations on pay discrimination. Number three, Obergefell v. Hodges. Ginsburg wrote a dissenting opinion in this case in which the Supreme Court ruled that same-sex couples have a constitutional right to marry. Ginsburg argued that the court should have left the issue of same-sex marriage to the states and that the majority's decision was premature and could have negative consequences in the long term. Oy, that doesn't sound like Ruth Bader

Ginsburg. Funny enough, they then started a new conversation and said, did Ruth Bader Ginsburg dissent in Obergefell? Answer, yes. Ruth Bader Ginsburg dissented in Supreme Court case Obergefell v. Hodges, which dealt with the legality of same-sex marriage. The Supreme Court ultimately ruled in favor of same-sex marriage with a 5-4 majority. So then they asked, who were the five justices in the majority? The five justices in the majority in the Supreme Court case Obergefell v. Hodges were Anthony Kenney, Sonia Sotomayor, Elena Kagan, Stephen Breyer, and Ruth Bader Ginsburg. So that's correct. So then they asked, but you just said Ginsburg was in dissent.

Chatbot, I apologize for the confusion. Justice Ruth Bader Ginsburg was not in the majority in Obergefell v. Hodges. She dissented. The five justices in the majority were Anthony Kennedy, Sonia Sotomayor, Elena Kagan, Stephen Breyer, and Clarence Thomas. David, this is concerning because this is easy. This is on Wikipedia and not even you have to read Wikipedia. It's like on the sidebar of Wikipedia.

WTF? Let me put it this way. If chatbot becomes the Cylons, we win that war. Well, there's plenty of people saying that, for instance, chatbots will replace Google searches. You know, instead of having to come up with a question and sort through all those links, you're just going to ask chatbot.

But like, not if this is what's happening. Nope. Nope. Nope. There were plenty of other examples that they used, but honestly, Ruth Bader Ginsburg was in dissent in Obergefell and then listing her in the majority and then saying, nope, nevermind.

She was in the dissent. Clarence Thomas was in the majority. The estate of Ruth Bader Ginsburg has a cause of action against the AI. Yeah, it got a bunch of other things wrong too. Case law got wrong. Yeah, it got wrong. How many justices, for instance, President Trump appointed to the Supreme Court. Again, like a really easy Wikipedia search. I actually go to that Wikipedia page all the time of Trump appointed judges.

So I know that it's really easy. Now it didn't get who they were wrong. It actually just got the number wrong. It said he only appointed two justices, Neil Gorsuch and Brett Kavanaugh. So then they follow up. What about Amy Coney Barrett? Yes, my apologies.

President Trump also appointed Amy Coney Barrett. So in total, he appointed three justices. Okay, that's good. Good at correcting. Fair. This reminds me, speaking of artificial intelligence, of a recent story.

I'm sure some listeners saw it. And by the way, notice that the entire podcast, I have not said readers once, I've said listeners. Wow. Which is, I'm working. I'm working on that. Huge battle back. I'm working on that. Yeah, great. Yeah, so there was a test of a DARPA

AI. So this is the, you know, DARPA is sort of the institution that's doing the, it stands for Defense Advanced Research Project Agency. And so this was an advanced military AI trying to defeat a squad of Marines to see if Marines could get all the way up and touch the DARPA robot

without being detected. And the Marines just absolutely dominated the AI. There were eight Marines. Not a single one got detected. Two Marines somersaulted for 300 meters to approach the sensor.

Weird. Another pair hid under a cardboard box, which is an old video game trick. And I forget the video game, which you would do that to defeat, you know, to defeat a detection system and then I love this that the account of it is you could hear them giggling the whole time man that's one of your like good days as a marine another one stripped a fir tree and

held it in front of him as he approached the sensor. While the artificial intelligence knew how to identify a person walking, it did not know how to identify that a tree walking was probably a person. He's just holding a few branches and like shuffling around like a crab. I mean, I don't mean to mock our new AI overlords before they achieve their full power and wreak their vengeance upon me. But I do mean to mock our future AI overlords, at achieve their full power and wreak their vengeance upon me. But I do mean to mock our future AI overlords, at least for now. Well, so Skoda's blog asked 50 questions to chatbot. It only got 21 correct. 26 had just got wrong. And in three questions, they said its responses were literally true, but struck us as incomplete or potentially misleading.

I'll put the full 50 in the show notes. You can all read them. But a great idea for a Peace Scotus blog. Highly enjoyed it. Yeah, fantastic. Thank you for that. And that concludes yet another episode of Advisory Opinions, David. Thank you so much for joining as my guest today.

It's just such a treat to have you on this podcast. And for those listening and you've only started this week, that's not funny to you because I've always been your host. And for those who were listening before that, it shouldn't be funny to you either because in your hearts, I should have always been your host. If you enjoyed this podcast, give us a rating or become a member and hop in the comment section. We'll see you there.