Advisory Opinions - You Can’t Preach Jesus Here | Interview: Judge Rebecca Taibleson

Episode Date: March 24, 2026

Judge Rebecca Taibleson of the 7th Circuit Court of Appeals joins Sarah Isgur and David French for a conversation about her path to the federal bench. But first, the Supreme Court's unanimous Olivier v. City of Brandon decision on free speech zones, the viral Afroman jury verdict, and the Pentagon Press policy ruling.The Agenda:–Olivier v. City of Brandon, Mississippi–Afroman and the Streisand Effect–U.S. judge rules against Pentagon press restrictions–Cauliflower and Mark Twain–Interview with Judge Rebecca TaiblesonOrder Sarah’s book here.Advisory Opinions is a production of The Dispatch, a digital media company covering politics, policy, and culture from a non-partisan, conservative perspective. To access all of The Dispatch’s offerings—including access to all of our articles, members-only newsletters, and bonus podcast episodes—click here. If you’d like to remove all ads from your podcast experience, consider becoming a premium Dispatch member by clicking here. Learn more about your ad choices. Visit megaphone.fm/adchoices

Ready? I was born ready. Welcome to advisory opinions. I'm Sarah Isger. That's David French. And we are going to start with Olivier versus Brandon, a decision from the Supreme Court about a street preacher who was arrested for preaching outside an amphitheater outside the free speech zone, but wants to now challenge that free speech zone on First Amendment grounds.

Then we will continue with more First Amendment cases, including drum roll. You guys all asked for it. Yes, we're going to. going to cover Afro-Man, okay? But we've got three other First Amendment cases, the Pentagon Press Policy case and two quick cases out of the Fifth Circuit to decide whether I keep my First Amendment merit badge from David. And last, we have a new friend of the pod, Judge Rebecca Tabelson of the Seventh Circuit, was confirmed late last year. She just got her commission. So we're going to talk about what it is to be a new circuit judge, where you get a robe, and how she interviews clerks.

What is a feeder judge looking for in the year 2026? All this and more on advisory opinions. Where are my gloves? Come on, heat. Winter is hard, but your groceries don't have to be. This winter, stay warm. Tap the banner to order your groceries online at voila.com. Enjoy in-store. prices without leaving your home. You'll find the same regular prices online as in store. Many promotions are available both in store and online, though some may vary. In communities across Canada, hourly Amazon employees can grow their skills and their paycheck by enrolling in free skills training programs for in-demand fields. Learn more at aboutamazon.ca. All right, David, we've got some things to cover before we can get to Judge Tabelson. First off, let's eat our vegetable.

Although these are tasty vegetables. They're like, you know, really good cauliflower. By the way, I was, I've been reading Ron Chordow's biography of Mark Twain and picking up little Twainisms. And my new favorite is, I'm going to get it slightly wrong, but it's cauliflower is cabbage with a glow up, basically. I'm like, yeah, that's cool. Okay, so we're going to eat some cauliflower. This is the decision we got from the Supreme Court late last week. We talked about the oral argument. This is Olivier versus. city of Brandon. Now, if you remember, Mr. Olivier was convicted of violating a city ordinance restricting expressive activity near a public amphitheater. Or to remind you of the facts, he's a street preacher in Mississippi and believes that, you know, I guess through a bullhorn shouting his religion at other people as part of his religious calling. Here's now from Justice Kagan's unanimous opinion. His vocation sometimes took him to the sidewalks near an amphitheater in the city of Brandon, where he could find sizable audiences attending events. Olivier was apparently not the only speaker attracted to that area, and the activities there

caused some disruption. In 2019, the city adopted an ordinance requiring all individuals or groups engaging in protests or demonstrations at around the time events were scheduled to stay within a designated protest area. Olivier checked out this area but found it too remote for communicating his message, so he returned, along with his signs and loudspeaker to the sidewalk fronting the amphitheater. And there he was arrested by the Brandon Police Chief for violating the city ordinance. The next month, Olivier pleaded no contest in municipal court, imposed a fine of $304, one year of probation, and 10 days of imprisonment to be served only if, during his probation, he again violated the ordinance. Olivier did not appeal, paid the fine, and served no prison time.

The question is, Olivier would like to go back out to where he was and not in his little BS free speech zone over in the back by the dumpsters, but in front where their people actually are and do this again. But of course, he would like to not be arrested this time. So he wants to challenge the ordinance on free speech grounds. And the question is, can he do that when he has already been convicted of violating this law because of this case called Heck. David, this is a unanimous decision basically saying, yes, he can challenge the law and not overturning heck, but saying, guys, guys, let's be reasonable on what heck actually said and actually meant and don't overread vague sentences from heck. But can I just start

substantively, David, because you've worked a lot on these free speech zones. And especially on college campuses, they would, I mean, put them in absurd places or they'd be so tiny. they were silly and obviously violative of the First Amendment. At the same time, I totally get like you're walking into a theater and you don't want to be accosted by five different people protesting vaguely obscure things with a bullhorn in your face while you're walking in on a date when you actually like, you know, took the effort to put on heels and hire a babysitter. It ruins the vibe.

So, David, give us a little like First Amendment-y stuff, substantively here on how Olivier is going to do when he challenges this law. The basic rule here is this is all being evaluated if you're talking about speech zones against the context of reasonable time, place, and manner restrictions. In other words, you can reasonably confine free speech to certain locations. You can confine free speech to certain times. You can regulate the manner of it, like how much bullhorning will there be? So for example, bullhorning in a public park in the middle of a city, not nearly as much of a problem as a bullhorning in a sleepy residential neighborhood. So reasonable, content neutral, time, place, and

manner. And, you know, when you're talking about speech zones at college campuses, they missed the reasonable part time and time again. They would put the speech zone maybe in a pin out near the football stadium where people don't walk by. or one of my favorites was the Texas University that the entire speech zone was a gazebo. And my friend Greg Lukianoff asked like a physicist to calculate what total mass, what would be the mass of the students if they all tried to exercise their free speech rights at once in the same gazebo. And he said it would be a mass of human flesh compressed to the density of uranium 238. So that is not a reasonable time, place, and manner restriction.

So, yeah, there are circumstances where you can block bullhorning. There are places where you can create speech zones, but it all has to be against the backdrop of the standard of reasonableness. And now we don't know from this case how reasonable that speech zone is. Obviously, you know, Mr. Olivier did not find it reasonable. He wanted to be closer to the action. But that's not at issue in this case. Does it matter what he's yelling?

Just sorry, one more question. because in theory what he's been yelling has been, if not actually vulgar, bordering on vulgar, calling women names, for instance, that are not curse words, but would imply that they have sex for money. You know, there is a level at which you're going to talk about, and we've talked about this earlier, you know, there is a point at which words, in which a person can be engaged in a form of street harassment, sort of a disturbing the peace, engaging in very belligerent conduct where they're going to cross into some other content neutral, generally applicable rules governing public behavior in a public park area. If you're talking about a public park area, there's going to be a lot of leeway here.

You're going to have a lot of ability to say some pretty tough stuff. Can I read you this description? Olivier's preaching included loud personal insults directed at attendees, including yelling, whore and drunkard, which he described as biblical terms for sins relevant to his community. Okay, but David, as you were saying, that's not actually what this case is about, this is about whether he can challenge the ordinance at all based on this previous Supreme Court decision called Heck versus Humphrey. Okay, so I'm going to read you the facts of heck, and you're going to see just how wildly

different they are from Mr. Olivier. But the reason I really think this case is important is because it kind of shows the problem with precedent, that every line of a previous case gets expounded upon philosophically as if it's handed down on tablets, and the facts kind of get lost, and the obvious distinction between the facts gets lost. Okay, here's Heck v. Humphrey. Roy Heck had been convicted in state court of manslaughter and was serving a 15-year prison sentence. While his appeal was pending, he filed a 1983 suit in federal court naming two prosecutors and a police investigator as defendants. Heck alleged that they had committed misconduct, such as destroying exculpatory evidence to gain

his conviction. He sought as a remedy monetary damages attributable to his unconstitutional conviction. The question was whether 1983 allowed the suit. The court held that it did not. The court took us settled that Heck could not use 1983 to challenge the fact or duration of his confinement and seek immediate or speedier release from custody. A claim of that sort the court noted must be brought in habeas corpus proceedings. And so too, the court held, Heck could not use 1983 to seek damages deriving from a conviction unless it had already been overturned. To be sure, Heck could not get damages by way of habeas action, but in suing for them under

1983, Heck was in truth mounting a collateral attack on the validity of his conviction and thus intruding on the habeas statutes domain. And here's the money line, David. When a state prisoner seeks damages in a 1983 suit, the district court must consider whether a judgment in favor of the plaintiff would necessarily imply the invalidity of his conviction or sentence. A judgment for heck would have done so for his success rested on proof discrediting his conviction. His 1983 suit, therefore, could not go forward. But David, the differences here are so obvious. This isn't someone who is continuing to be in custody, continuing to have a punishment because of this. It's all prospective relief.

It's not even damages for what happened to him before. This is just injunctive relief so that he doesn't get arrested again if the ordinance is invalid. And I think the problem, as Justice Kagan pointed out, this whether a judgment in favor of the plaintiff would necessarily imply the invalidity of his conviction or sentence, if you read the reason, that in its broadest sense, which the Fifth Circuit did, which is how the Supreme Court got this case, then any 1983 suit about this ordinance challenging its validity would make his previous conviction invalid. Like if you sued in the city of Brandon about this and were like, I just want prospective relief because I would like to go be a street preacher. You know, David French is sick of the New York Times. And they're like, you're right, David, this free speech zone is, you know, unconstitutional.

violates the First Amendment, then Mr. Brandon's conviction would obviously also have been invalid. So heck, can't be read that way. So this was a unanimous decision. But I think, you know, if you talk to justices or clerks, frankly, and really drill down on this idea of like, hey, when you join an opinion, you know, you're not the author of it. When you join it, do you go through and look for lines like that that are super broad to make sure they can't be applied to a few facts that won't make sense. And the answer you get is, first of all, justices do not line at it, each other's opinions. So they literally would not change that line anyway. So it's up to the writer. And that the writer and the clerks who do the drafting and stuff, that's not the exercise

they're involved in. And yet later judges and lawyers read these lines as if every word were thought through and adverb and everything. And it's like, ugh, that's not the author's intent, which is a bit of a problem, and maybe especially for textualists, like, well, you wrote it. It's the text of the opinion that is now precedent. A lot of this isn't dicta. A lot of it isn't dicta. And there's a lot of dicta. In other words, you know, for those who are not up on the lingo, that it's not the exact holding of the case. It's the explanation of the reasons for the holding. And yeah, technically you're not supposed to hang the moon on dicta. You're not, technically you're not supposed to. But in

reality, when you're an advocate, you're grasping for anything you can grab a hold on, and you will grab with both arms a broad statement in dicta or a statement indicta that is directly helpful to you? Absolutely. And yeah, I mean, it just can't possibly be the case that all of these opinions are line by line considered by all relevant parties and agonized over by all relevant parties. But going back to the case itself, you know, the difference here clearly is he just took the L on the first conviction. He just said, I'm taking, I'm pocketing that loss, and I'm going for a dub in the future. He was very clearly not challenging, although if he'd won, if he wins, it would, you know, cast into doubt the legitimacy of the original conviction,

but not in a only conceptually, not actually. And that's the big difference. This case called Woolley will now control cases like Olivier. Let me just read you the facts of Woolley because they are kind of fun. George Maynard view the live, free or die motto on his New Hampshire license plate as repugnant to his moral and religious beliefs. David, I don't totally understand the religious objection to live free or die. But, okay, anyway.

So he covered those words with reflective. tape in violation of a state statute. Maynard was convicted for that conduct three times over in state court, receiving mostly suspended sentences involving small fines and short jail terms. After the last proceeding had concluded, and presumably anxious that there not be a fourth, Maynard brought a 1983 suit in federal court seeking a declaration that the state statute violated the First Amendment and an injunction to prevent its future enforcement. New Hampshire argued, as its front line of defense, that the suit was precluded because Maynard had already been subjected to prosecution under the challenged law. In the Woolley case, the court rejected New Hampshire's argument on the ground that Maynard's

suit sought only to prevent further prosecution under the New Hampshire statute. So Mr. Maynard got to move ahead and challenge live free or die. Fun case, David. I get to logic. I mean, would you say to everyone who is in the Soviet Union, you have two choices, fight for freedom or like or die or can can somebody live in a totalitarian country and choose to live there i you know i don't i don't know it's it's an interesting i think we're allowed to have hyperbole in our rhetoric this is taking from a long line of great american speakers this is a it's witness correct i'm sure it was they're pretty strict about this stuff sarah they're not into hyperbole all right i get it i get it david when we come back we're

We're going to talk more First Amendment fun, just a lot of cases actually on the First Amendment, including, I know, you guys are waiting for it. Afro-Man. This episode is brought to you by FedEx. These days, the power move isn't having a big metallic credit card to drop on the check at a corporate launch. The real power move is leveling up your business with FedEx intelligence and accessing one of the biggest data networks powered by one of the biggest deliver. Networks. Level up your business with FedEx, the new power move. All right, David, we ate our cauliflower. Now you've got a choice between the interim decision in the Pentagon Press case or Afro-Man. I'm going to let you decide. Oh, you know the decision. It's Afro-Man. Go for it, David. Okay. So this is a wild story that nobody was tracking until four days ago. And then all of a sudden, four days ago, Afro-Man, in the middle of a war in the Middle

East, basically takes over social media. Because here are the basics. So going from the New York Times story about the trial, on Wednesday, Ohio jury ruled in favor of the rapper Afro-Man after a civil trial in which law enforcement officers accused him of causing him mental distress by using footage from their 22 raid on his home and a pair of music videos. The rapper, whose real name is Joseph Foreman, was sued in 2023 by seven officers with the Adams County Sheriff's Office in Southern Ohio. They said in a complaint that Mr. Foreman's use of their images and the music videos and to promote his brand had caused him to suffer humiliation, ridicule, mental distress, embarrassment, and loss of reputation. So he had a little moment of fame in the year 2000. So he's had a moment of fame before.

And his song, his famous song, and I'd never heard of it. Are you serious? You'd never heard the song? It might not be my genre of music that I'm really paying close attention to. The song was called Because I Got High. I was going to go to class before I got high. I could have cheated and I could have passed, but then I got high. It was like every kid's anthem.

I'm taking it next semester and I know why. Because I got high, because I got high, because I got high. Okay, okay. It's coming back to me now. It's a catchy little ditty. It's a bot. It's a cat. So basically he writes these songs that are, I would say, Sarah, I don't know how you interpret them,

is obviously insult comedy parody. So he takes, there was, he had cameras inside his home. And on the night in question, the night that launched a thousand hip-hop videos, four deputies, two sergeants and a detective were acting on a search warrant. So they raid his home in August 2022. They were, apparently the warrant was rooted in allegations of kidnapping and drug trafficking. There were no charges. But he had a security system and he watches it and he watches the police officer.

break down the door, watches him rummage through all of his stuff. He claims that they took, when they took cash from his house, they returned it $400 short. And so he does these video, he does these music videos entitled things like, will you help me repair my door? Was the very catchy name of one of them. A lemon pound cake was the name of another. Okay. The lemon pound cake one is the best. So this overweight officer, like, is walking by, sees the pound cake, and then double takes the pound cake. He doesn't actually eat the pound cake or anything. He doesn't do anything with the pound cake. So he makes this whole song, Lemon Pound Cake, which is now very popular online. There's T-shirts you can buy that say

Officer Lemon Pound Cake. And Afro-Man has this line where he's like, I get it. I'm a big boy too. But like, you know, you know you want a slice of that pound cake is basically the gist. And in one of the music videos, he's insulting one of the, I think calls him a son of a bitch and then says, I'm having sex with your wife. And by the way, he uses the officer's names. That is important here to the First Amendment question. Yeah, yeah. So he uses the names and he claims that he's having sex with one of the officers' wives.

So, Sarah, this case, I don't know who was advising these officers. So this was the Streisand effect on steroids. And Sarah, correct me if I get any of the. these details wrong, but there was a blogger who had a video or pictures of the Streisand Estate, and he had posted it on a blog that he had that nobody trafficked. Nobody went there. It got no hits at all. And Barbara Streisand got very angry that he posted these pictures, so she demands that they be taken down. When this famous person then makes this demand, then everybody learns, oh, wow, there's pictures of Barbara Streisand's estate online, and the traffic just

mushrooms. So it had the exact opposite effect. She's trying to get her estate out of the public eye by trying to sue to sue this blogger or this web designer. It goes everywhere. So it had only six views. This is the Streisand thing. The Streisand picture had six views before she filed her lawsuit and then 420,000 after. The millions of people now, I mean tens, hundreds of millions of people who now know about Afro-Man and Lemon Pound Cake. It's stunning. So let's talk a little substance here. Why was this a bad idea to bring this lawsuit? If he's doing two things. He's doing one. He's saying their names. So he's bringing them into the public arena. And he's saying transparently, at least about one of them, a transparently false thing that he was having sex with the man's wife.

So why is it a bad idea to bring this lawsuit? Don't they have him dead to rights? He is broadcasting their faces publicly, profiting off their image and likeness and lying about them, Sarah. So why do they lose the case? And, you know, it really goes to this notion that there is such a thing as satire. And you can say false things when they're clearly satirical. However, if you're going to sue and claim it's defamation, you're getting into this weird box.

And there was this moment in the cross-examination where the lawyer for Afro-Man is questioning the officer who Afroman claimed he had sex with the man's wife. And he says to the man, did he have sex with your wife? And he says, I don't know. Yeah, that was a weird moment, actually. I'm confused about it still. If he said no, emphatically and clearly and unequivocally, then the question is, why would have anyone have taken this seriously? Oh, because then it's obvious satire.

If you say, no, my wife's never met Afro-Man. There's no chance. There's no chance. Nobody could believe she's having sex with Afro-Man. And obviously you're not going to say yes. Because then it can't be defamation anymore because then it's truth, right? So you have to say, I don't know if my wife is having sex with Afro-man? It was wild. It was wild because it was so obviously satire. And honestly, my biggest question,

Sarah, in this case is why it went to a jury to begin with. When you have these cases, you have such obvious satire. And look, as far as using their faces and their names, these are public officials who he's accusing of violating his rights. I mean, they don't have a right to confidentiality in these circumstances. And so the fact that, the fact that, The fact that it was satire was so obvious that I'm just stumped as to who thought this was a good idea to file the lawsuit. And I'm actually somewhat stumped that it even went to a jury to begin with. By the way, we did get a question from a listener about this. We just got mostly you guys yelling at us that we needed to cover it.

But we got one question from a listener because the court order at the end says that plaintiffs and defendants will split costs. and this person was like, isn't that super weird? And doesn't it seem like the judge is trying to help the officers? So a couple things that are just fun litigation facts. One, the American system, as it is called, means that you pay your own way in court. So even if you win, you still pay your own attorney's fees barring some specific statutory, you know, thing like in 1988, David, in federal court. So that would seem really weird, right? That not only, like, it's not that one side has to pay the other, but you actually,

split them, meaning you like you aggregate all of everything together and then just divide that in half. So the other side who's, you know, super profligate benefits, not quite. So costs generally do not mean fees, which I know is annoying and stupid. Cost means like the filing fees and stuff like that, not attorney's fees and stuff, you know, the things that actually cost a ton of money. And generally controlled by statute. So this is an Ohio state case that was tried by a judge with a ton of experience. I am not an expert on Ohio law, but I am willing to give the benefit of the doubt to the judge that, in fact, there is some statutory provision in Ohio that just says you split the cost, not the fees, in a case like this. There is another really interesting and funny part of the K, well, several,

because this was a televised trial. And so the footage of the trial just starts to go everywhere. and you can see while the music is playing, people in court are trying to keep a straight face. Like, people are struggling to keep a straight face. Like, this is so obviously just over the top. Well, Afro-Man's also in a full American flag suit bopping to his own songs. Yes, he's viving to his own song in an American flag suit with American flag sunglasses that he's wearing inside.

And which then led to the other interesting lawyer choice, which was for his lawyer to essentially say, look at what my client is wearing. How could you take this man seriously? Which was fair. In other words, he's showing, it's not that he was doing anything necessarily wrong dressing like that. He was showing how over the top this whole thing was.

And the fact that it was so over the top gave us the clear indication that this was all satire. And David, there's this one point. So there's, you know, he looked at my lemon pound cake and they destroyed a door and his camera system. That's not okay. But I think the one thing that Afro-Man really had going for him on the facts is that they said they took X amount of money from him, you know, cash. And when they returned that cash, they returned at X minus $400. And so he was like, you took $400 from me, give it back. And then they were like, oh, we looked into it and they actually just miscounted it on the front end. And so we didn't take $400. And there's just no way for him to prove they took $400.

or that they lie. Like, so maybe he's out $400. Maybe he's not. I don't know. But you can see being pretty angry about that. If you believe you knew exactly how much money was there that they took, then they give it back $400 less. And then they're just like, no, no, we just never took that amount because we're bad at math.

Like, yeah, I'd write a rap song about that too. Like, that's insane. And the whole thing was that they came to his house for kidnapping and human trafficking on a tip. And a tip that included that allegedly he had some sort of dungeon. Yeah. And he's like, I will, he has a whole line of like, I will kidnap a blunt. I may kidnap your burger if you look away too long, but I don't kidnap people. I'm too lazy for that.

The guy is just hilarious. And then when he gets out of the, when he gets out of the trial and he's just like, yeah, freedom, America, yeah. It's the greatest. Like, Afro-Man for one brief shining moment brought the United States of America. America together. All right, David, we have a couple other First Amendment cases worth mentioning. So this Pentagon case got a lot of headlines. This is the new Department of Defense press policy that a bunch of outlets and across the ideological spectrum said they would not sign and therefore had their hard passes to the Pentagon revoked. The New York Times sued, claiming that this was

unconstitutionally vague and violated the First Amendment. judge on an interim basis, right? This is the question of whether they were going to get an injunction against that press policy on the front end. A judge said, yeah, it is unconstitutionally vague, and it does violate the First Amendment. This is worth comparing, by the way, David, why it was different from that AP case brought against the White House that went to the D.C. Circuit, and the D.C. Circuit was like, no, nope, that policy is fine. Pretty different policies. So in The DC AP case for the White House, remember the AP keeps their pass to the press briefing room, you know, and all that stuff. What they revoked was the AP's designation as being in the press

pool. So to go into the Oval Office for pool sprays or to travel on Air Force One for specific trips to meet foreign dignitaries and stuff like that. The White House is like, yeah, it's viewpoint discriminatory. But these aren't non-public fora. They are nothing, in fact. They are just private. And that's where the DC Circuit, like, rubber hit the road. And they were like, yeah, actually, this has no First Amendment designation because it's not a forum of any kind that has been opened up in any way. In the Pentagon case that was just decided, both sides agreed that the Pentagon areas that press are allowed in are non-public fora. By the way, we should just say forums because that's what normal people would call them, but lawyers call them forum.

and it's annoying and stupid and I don't like it. So feel free to call them forums in your comments and emails. But the idea was that I found interesting, David, the unconstitutionally vague thing, I don't know that I actually agree with that part. It'll be interesting how that goes on appeal. I don't know how specific you need to be, but I thought it was actually okay. The first amendment question, though, it was unconstitutionally vague under the Fifth Amendment. The first amendment question was interesting to me because the judge held that it was disdustive. discriminatory on viewpoint, but not political viewpoint, right? Because the daily caller, National Review, they all refuse to sign this as well. So it's not right versus left. The judge

held it was positive versus factual, basically. If you are unwilling to commit to never writing a non-positive story about the Secretary of Defense or the Department of Defense that you can't sign this thing and therefore you can't have a hard pass. And that that's, is viewpoint discrimination. I'm not sure I can think of another case like that, David, where the viewpoint wasn't an actual viewpoint that you hold on an issue or partisanship, but rather I intend, I don't intend to write just positive things. Right. It's very interesting. I mean, I absolutely, it's the case that propaganda is a viewpoint. Pro-government propaganda is absolutely a viewpoint. And so I think it actually effectively illustrates how we're in an authoritarian moment,

but not necessarily a very ideological moment. That, in other words, the imperative isn't to support the right or support a particular conservative ideology. The imperative is to support the actions of this administration. The imperative is to ratify, approve of, cheerlead, etc., whatever this administration is doing. And that's why it's a propaganda viewpoint, not a necessarily an ideological viewpoint. It's fascinating. So all of these cases, the AP case and this Pentagon case, are both in their interim eras, if you will. So the AP case last I checked PACA had been argued before a DC Circuit merits panel. The previous DC Circuit decision was a motions panel. That was back in December. So we could get that AP decision like any time now, I suppose. This, you know, the government could appeal

just again on this interim basis to decide whether they get the injunction or not. And then you're still going to have to go back and do the merits side as well. So always like now pointing out the difference between the interim dockets because they exist at the lower courts as well, versus the merits docket. And David, you know, there were these two other First Amendment cases out of the Fifth Circuit. The D-Ray McKesson won, the Black Lives Matter activists who an officer sued claiming that McKesson's negligence in organizing the protest led the officer to suffer injuries. And the Fifth Circuit held with a dissent from Judge King that it can go to a jury. It's not like sort of per se protected by the First Amendment. And another case, they held that

James Wesley Berger, an 18-year-old high school senior who had put threats on Roblox, that that could also move forward. Because initially, the indictment had been tossed out that no reasonable juror could find that Berger's statements were true threats outside protection of the First Amendment. But the Fifth Circuit held that a trial on the merits is necessary to evaluate the sufficiency of the government's evidence. So, David, we have seen this repeatedly in a lot of cases that the Fifth Circuit. is becoming less First Amendment protective, sort of along the Justice Alito lines. You know, you have Justice Alito in the Crush video case, in the Westboro Baptist funeral protest case, and in the violent video games case. And all of those cases, Justice Alito would have held that that was outside First Amendment protection as just not valuable speech that we need to worry about.

The Fifth Circuit seems to be following that. Although, as David Lapp pointed out in original jurisdiction. Another way to read these cases is just the Fifth Circuit wanting stuff to go to juries, like the Afro-Man case. David, I'm just curious, again, from your First Amendment litigation experience, I don't know. How am I supposed to think about that? Because I do want juries to decide stuff sometimes. But when it comes to the First Amendment, that's a counter-majoritarian thing. Like, I don't want majorities to decide whether speech is good or bad, I guess. The role of a jury in a First Amendment case is really typically pretty narrow. So, for example, if it's a defamation case and you're presenting truth as a defense, a lot of times what you're doing is you're adjudicating the truth or

falsity of the underlying allegation. And that was Afro-Man sleeping with your wife? Yeah, exactly. Exactly. And so there's factual questions at issue that are quite relevant. However, that is not the norm in a lot of First Amendment case law, a lot of First Amendment cases, you're not dealing with too many questions about the facts. I mean, so, for example, in Olivier, we know what he was doing. We know what the ordinance is. There isn't a lot of factual dispute there. Now, if he was accused of, you know, public disorder or public nuisance sort of misdemeanor

or crime, there would obviously be, he might raise a First Amendment defense, but there might be some, there would obviously be some factual elements to that. But it is it, it is not the norm in my practice to have very many factual, relevant material factual disputes in a First Amendment case. That is not, now, it is quite normal to have, you know, factual disputes around, say, damages, but where you really do get into the factual disputes are much more when you're, when you're claiming retaliation. In other words, an action was taken against me that might be otherwise lawful, but it was actually motivated by an unlawful purpose to punish my First Amendment expression. And the jury trials that I had in the First Amendment context were retaliation jury

trials, where you really were adjudicating and litigating motive. And that's another area where you're going to have the jury get involved. Is it crazy for me to want to split the baby sometimes and say, for instance, maybe, you know, if we're having to err on one side of the other on the front end, maybe let it go to trial. Again, if it's a close call, like in this Roblox case, I think that's interesting, right? Do we think those were true threats? Maybe a jury should decide that. And then, you know, if the prosecutor argues things or the jury instructions are a little on speech issues, then you can appeal your conviction on First Amendment grounds after a jury has found whether a reasonable person would consider those true threats. Because

I guess I think it is a factual question. Sometimes, you know, you're on these multiplayer games and someone puts a threat in. It's very clear that that is not a true threat. It's satire. It's talking crap, et cetera. But there's other ways for it to very much be a true threat on those. And I guess I do want that to go to a jury. And then I want it to be appealed on First Amendment grounds after we have a jury finding

on the facts rather than making all these decisions on the front end. Is that, can I still keep my first. Amendment absolutist badge? Well, I mean, I think in the context of, is this a threat, if you have a legal definition of a threat that has factual elements to it, I mean, whenever you have the factual elements, you're going to have a jury question if it's material, right? So I don't, I don't think you're compromising anything if the actual standard, if the actual question has factual elements to it that are material to the outcome. So you've kept your First Amendment street cred, Sarah. All right, when we get back, Judge Tabelson is going to tell us how she really climbed Mount Everest to meet her husband and it all went as planned.

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I like to be prepared. That's why I remember 988, Canada's suicide crisis helpline. It's good to know, just in case. Anyone can call or text for free confidential support from a train responder any time. 988 suicide crisis helpline is funded by the government and Canada. And without further ado, we'll bring in our special guest of the day, Judge Rebecca Tabelson. Now, Judge Tabelson has many claims to fame. On this podcast, she is going to be the least amount of time serving on the bench circuit judge that we've ever had. So we're going to get the

freshest takes about being a new circuit judge. Also, she clerked for then Judge Kavanaugh and then Justice Scalia, but maybe more fun than any of the other facts about you. You met your husband preparing to climb Mount Everest. Can we just start there? Wait, you were preparing to climb Mount Everest or he was prepared? Both of them. Okay, okay. Let's hear this story. Yes. I mean, this is definitely the place to start because this is like the first and last interesting thing about me. And I have to, I have to turn the modesty dial down a little bit here. Neither of us would planning to or did summit Mount Everest, which is like a very sort of, you know, high technical skill and expensive endeavor and that takes months. Instead, we were both going to the base camp,

which is about 20,000 feet, which is more like a hard hike for someone that's in like reasonably good shape. But yes, I, let's see, we are between college and law school and we were both doing some like volunteer work before law school. And both of us took a break independently from our volunteer work to do a trek up to the base camp of Mount Everest. And Ben, my husband, his dad came to meet him. And I actually met Ben's dad in the Kathmandu Nepal airport. We were in the same passport line together. And we started chatting.

And Ben's dad was like pretty soon and pretty awkwardly like, oh, you're going to marry my son. And I was like, okay, okay. I mean, you know, we'll just. It's nice to meet you. And it turned out we were trekking with the same agency. So we were going to the same hotel. And we were on different routes, but that like crisscross up to the base camp of Mount Everest.

And so I met Ben at the hotel. And when we got out of the van, the first thing his dad said to him, Ben hadn't seen his dad in like nine or ten months, was, look what I brought you. And then I got out of the van. And there I was. This is the most Jewish dad. a broad story ever. I met a Jewish woman

in the passport line. This is it. I figured it out. He was like, I crushed it. And you know what? He was totally right. Like, when I, by the way, before I ever met Ben,

I knew what his SAT score was. Okay, so just to add to this, like, you know, picture. And when I saw him, I thought, wow, that guy was pretty handsome for his SAT score. And anyway, yeah, then we crossed paths all the way up Mount Everest,

which is you have less and less oxygen as you go up. So it's a little bit like being at a bar and getting sort of tipsier and tipsier every time we saw each other. And so by about 15,000 feet, I was also like, oh, we are getting married. And then I would say about three years later, Ben came to the same conclusion.

And here we go. Okay. Next important question. So I ran these numbers for Judge Kavanaugh, for his placement. He was the ultimate feeder judge. And it's like not even close. I think he's the number one feeder of maybe all time to the extent anyone has run those numbers. So he would have four clerks a year at the D.C. Circuit. And his ending stat was that 3.4 average per year clerked for the Supreme Court.

So, Judge, did you feel a lot of pressure to get that Scalia clerkship? Did you know that you would be like the loser clerk if you couldn't nail down? I felt a lot of pressure to get the Scalia clerkship. I don't think I realized at the time. I clerked for him pretty early in his tenure. And so he was definitely sort of a feeder then, but it wasn't quite at the, you know, levels that you're describing because he was, I think it was his fifth year on the bench.

He, you know, helped me at every step of the way. Like he, you know, reviewed my application to the Supreme Court. And when I got the interview with Justice Scalia, he was my first phone call. And he was like, okay, just to be clear, you need to kill this. and, you know, like gave me topics to research, which were basically all of constitutional law. I was like, okay, Roger. And then, you know, he has this amazing story about,

because this funny little story about how Justice Cabinet does, even now, something like 16-ish years later, he remembers exactly where he was. He was driving somewhere in Bethesda when I called to tell him that Justice Scalia had hired me. And I always love that little story when he tells him, tells it to me. And I relate to it more and more now that I'm a judge because I'm just so invested in my law clerks thriving. And I mean, as he was, I mean, I really cannot overstate how

influential Justice Kavanaugh and Justice Scalia have been for me. But it is such a fun part of the job to get to mentor and champion this next generation of lawyers. So I too will probably remember exactly sort of like where I was. Wait, wait, wait. You were on your first. set of law clerks and you've known them for like a hot second. Like you just got confirmed. I don't even know if you have a robe yet. Did your commission arrive? Are we heading for Marbury versus Madison? Like your, what is happening? My commission just came last week. So I'm official. My robe, let me tell you, getting a robe is a surprisingly niche and difficult and expensive process. I am like really, I'm very petite. I'm 5'1 and I'm just very small. And so I had to have this very custom

robe made. And in the meantime, while it was coming, I definitely purchased something on Amazon called a children's judge costume, which I then promptly forgot to bring to Chicago multiple times for my sittings. So I had to raid the robe lockers of other petite female judges who fortunately do exist. And yes, I have law clerks and they are wonderful. They are... Wait, how much is a rope? The custom one was like $500. Oh! Yes, I know. I'm sounding like a... I guess I'm sounding like a career, public servant that I am, but that's not nothing. And you just pay for yourself. No, the trappings of the judiciary can cost a surprising amount. I looked at, I once looked at

Barrister's wigs. Don't, don't ask me why. But $600 for your typical, you know, like the wig that they wear in, yeah, in England. So that's price gouging. It's just horsehair. Okay. Well, to paraphrase David Latt, what's underneath the robes? Are you always in business attire no matter what? Such a good question. I love the robes because they really take a lot of pressure off of attire selection for the purposes of oral argument. When you do feel like everyone in the room is sort of looking at you, they're already

scrutinizing your facial expressions and when you're typing and when you're not typing. So I'm grateful to at least not have my clothing choices scrutinized. That being said, you go directly from oral argument into conference with your fellow judges. I am in fact wearing a full suit like underneath the rope. So it's nothing exciting. So switching gears, we've been talking about the newness of it all, which means that the whole confirmation process is very fresh in your mind. And I'm always interested in the career path of judges. In other words, when did you have this glimmer in your mind that I think I'd like to be a federal judge? and how did you then move from a glimmer in your mind,

I would like to be a federal judge, to becoming a federal judge? I mean, in one sense, you do have job openings posted in that we know when there are vacancies. But it's not like you're sending in a CV to a central HR facility that is then screening applicant. How do you get from A to B on this? Well, the glimmer question is going to be

sort of the answer is sort of embarrassingly early, but it's because I just looked up so much to the judges, that I clerked for. So it was impossible to work for Justice Kavanaugh and Justice Scalia and not sort of want to be them. And, you know, that, so that was the case early on. But then, you know, you so what you do is you sort of put that idea out of your mind because it feels like, you know, deciding that you want to win the lottery. There's no way to go about it. And it makes no sense to organize your life around that principle. And so, but one thing Justice Scalia said to me

that was very influential was he knew that Ben, my husband, is from Wisconsin, and he said, you know, Rebecca, go, go to the middle of America, go to Wisconsin, your legal skills will make more of a difference there, you'll have a bigger impact on your community. And we did. And that was not because I was trying to be a judge. It was for the reasons Justice Scalia said, and also because we wanted to raise our kids here in the Midwest and near family. But it was obviously ended up being sort of dispositive for me in terms of becoming a judge. And then, you know, when I was here, I have been working for the Department of Justice for the last decade in the U.S. Attorney's Office here in Milwaukee, which is one floor down from my chambers right now.

And then I did a brief stint, well, I guess a two-ish year stent back in D.C. at the Solicitor General's office. But then we came back here for all the aforementioned reasons. And, you know, there are two seven-circuit seats in Wisconsin, and that's a pretty small number. and so it, you know, it didn't, it wasn't something I was planning on and, you know, Judge Sykes is not, you know, aged. and so I wasn't sort of eyeing that seat in any way. But when she did decide to go senior, you know, she has been a mentor to me and I've looked up to her for a long time.

You know, we sat in the same building. So, yeah, when she went senior, I thought, oh, wow, that would be quite, quite an honor and an opportunity. Even then, though, it feels like a complete long shot, like lightning has to strike. And so even then, you don't sort of turn your life upside down, I don't think you should.

You sort of try to keep being the person that you want to be applying for this job. And if it works out, it works out. And if not, there are lots of other meaningful ways to be a lawyer. So in the process, you're obviously a presidential nominee, but also your senators have a role in this as well. How did that work from the standpoint of I'm first talking to senators, then talking to the White House? or what does that, what are the nuts and bolts of that process? It's different in every state. The way it works in Wisconsin is we have two senators and they, obviously, everyone has two

senators. But our two senators have appointed a nominating commission that considers all applications for vacancies to federal judgeships. And each senator has appointed three people to this nominating commission. And so essentially around the same time that the White House was interviewing candidates, the nominating commission was soliciting applications, and they asked for an application that looks very much like a Senate judicial questionnaire. So it's a similar, very similar. And so I, I both interviewed with the White House and applied to the nominating commission. And then the

nominating commission interviewed me and many others. And then it deliberates and the commission put out a list of, gosh, I want to say four or five people who were approved by the commission, which requires if I think a vote of five, six of them. So to a certain extent, a little bit bipartisan there. And the senators have sort of, in theory, pre-committed to respecting the nominating commission's work. That doesn't always mean that the senator's going to vote to support you. And one of my senators did not.

But I was happy to have at least gone through the in-state process out of respect for that process as well. Ultimately, really, it feels like the final call is, of course, with the White House where it should be. But we did have that parallel state process. Can we do sort of a tick talk of how, sorry, that's a political phrase, but now it's been co-opted by an app. I mean the line by line, you know, timeline. So you have your hearing. They vote in the Judiciary Committee. Then you go to the floor. They have now voted to confirm you to, you know, offer their advice and consent to the president. Okay, you have the vote. What's the timeline between that

and getting a robe. So, okay, I was confirmed, I think I want to say end of October. At the time, the next step is the president signing your commission. And I believe at the time I was confirmed the president was on a trip to Asia. So there was a little bit of delay. But he signed my commission the first week of November. So pretty soon. But you didn't get that commission until like yesterday.

I got that commission like on Friday, I think, or last week sometime. So again, to go back to Marbury v. Madison, you know, Marbury had, the commission had been signed, but it had not been delivered. Yes, although my understanding is that it was with the calligraphers, so I don't know that the calligrapher has any constitutional status. Like, you know. But it hadn't been delivered. I mean, if Marbury was just like, yeah, it was signed, I'm a judge now. Like, he could have done that too. He could have. Now, I had some pretty good indicia that the commission was really signed and on its way to me, including a call. from the president himself telling me that. Adams could have sent a note to Marbury that he signed it.

Like, it's Jefferson that was the problem. It's true. You're right. You're right. But happily, we did not end up in that situation. So we went, Justice Kavanaugh's forming in, and that is actually the official kickoff. And you start getting paid at that point. And then I flew back here to Chicago and went right to the courthouse and got the keys and got my Chicago chambers and got my parking. pass and met with the sort of key court personnel and things like that. And then a strange and little known fact is that it's sort of up to you when to start hearing cases. I, as a sort of,

you know, box checking workaholic just started hearing cases immediately. So I had my first sitting in December, which, you know, I had got the cases right away. But you can take some time to set up chambers if that's what works better for you. David, are you ready for our Marvel What If with Judge Tabelson? I mean, I would love to to do a Marvel What If with Judge Tabelson. So, Judge, as you know, we did this with Judge Bebis last week. And we bring the question to you, what is your, you know, fork in the road hypothetical for the Supreme Court that you would like to explore that, you know, didn't happen, could

have happened, whatever. And then we want to go live in that hypothetical Marvel what if world. So starting around the 1960s, the Warren court undertook a process of sort of basically developing a pretty detailed and reticulated code of criminal procedure that it derived from the fourth, fifth, and six amendments. And then through incorporation, that pretty detailed code of criminal procedure applied not just to the federal government's investigation, arrest, and criminal trial, but to those processes in every state in America. I think, you know, the best, so examples are things like Miranda, right, which is a prophylactic Fifth Amendment rule that requires a very

specific warning to people who are arrested at a very specific time, or things like the exclusionary rule map against Ohio, which is not just about the underlying constitutional right, but prescribes a specific remedy that now applies in the federal courts and also in every state court and land. And, you know, the list goes on. There are very specific rules about things that, I don't know, for example, judges or prosecutors can and cannot say during trial about, say, a defendant testifying or not. So these are actually quite carefully reticulated. And I think, you know, that constitutional interpretation was not inevitable. So it's interesting to think, you know, what if we hadn't gone down that path? And I have two hypotheses, which are really obviously just hypotheses, but, you know,

the first is that states would have developed their own criminal procedure codes that would have experimented with different ways of guaranteeing the basic constitutional rights that are in the fourth, Fifth and Sixth Amendments. So you can imagine alternatives to Miranda or you can imagine alternatives to the exclusionary rule as a remedy for constitutional violations as sort of laboratories of democracy idea, you know, that the states could have played with that. And the second thought I have is that we might have a lot more criminal trials than we do have today. As we all know, the vast majority of cases are resolved by plea. And that is because, in large part, the criminal trial and the litigation that leads to a criminal trial is so resource intensive now that no government,

state or federal, can possibly do very many of them if it hopes to achieve anything else. And so the system just has to. It relies on having a huge majority of cases resolved by guilty plea. And I think that's due, at least in some part, to this constitutionalized code of criminal procedure, which requires a lot of litigation in the lead-up to trial. and it raises the stakes of a lot of what you might think of as a somewhat small trial error to sort of the constitutional level. And of course, once the state makes a mistake, it can't retry someone because of double jeopardy. And so the government has to devote essentially a lot more resources to each criminal trial.

And that, I think, puts a lot of pressure on plea bargaining. So that's my hypothetical marvel what if. I love that what if because we really don't talk about it anymore at all. So Kagan writes her master's thesis before law school on Map v. Ohio under this sort of assumption that map is going to get overturned any second now. And you see Nixon talking about the Supreme Court. He's only talking about this criminal procedure stuff and how we need to overturn all of these Warren Court, you know, criminal flim flammery that's, you know, rising the crime rate across the country. And like that was the big concern with the Warren Court. We look back and talk about more of the, like,

culture war stuff, obviously Roe as like a, you know, post-war in court, still war in court thing. But at the time, it was all the criminal law stuff. And now we have mind wiped it. And there's no real discussion about ever doing it, except in like your one L law school class where it like blows your mind to think there could be something other than the exclusionary rule. And then you're like, huh, that is an interesting experiment in your mind. And we're never going to do anything about it, I guess. And like, that makes me a little sad because on your first point about the laboratories of democracy, I like that idea, but of course, I mean, some are going to be like find sort of a good answer and some are going to find a bad answer. And so like, you know, tradeoffs there. But on the

second point about trials, that seems like a bad tradeoff that we made, actually. Yeah, I would agree with that. And I, you know, I think the exclusionary rule is not the only natural inevitable consequence of a Fourth Amendment violation. In other words, it's not the only way to address a Fourth Amendment violation. And so is there room for something else? And, you know, there have been discussions of, well, what if you allow the admission, admit the evidence, but we eliminate a large majority of the immunities that surround policing. So there's a, if you've actually been damaged, like you've been damaged in a concrete way, and it wouldn't count that it's actually evidence against you in court. But if you've been damaged, you in a concrete way by the violation of your civil rights, having fewer immunities or no immunities, but no exclusionary rule, I don't know. Is that adequately protect the constitutional interest? It's a very interesting question.

Yeah, I agree. I think in some ways, if you're looking at the big, if you're thinking, if you're trying to answer the big picture question, how do we deter unconstitutional conduct by law enforcement? The exclusionary rule and the immunities are sort of two sides of that coin. And in some ways, maybe courts are thinking of one, whether when they're enforcing the other or vice versa. All right. Last question, do you, Judge Tabelson. What does a clerk interview like with Judge Tabelson's chambers?

I mean, you come from a long line of feeders, you know? Judge Scalia was a feeder. Judge Kavanaugh was a feeder. You have, you know, a paternal lineage here. I do. I do. And I've in many ways, I really, and this is like a replica here of sort of the Kavanaugh and Scalia Chambers with things. is barred from both of them. And the clerkship interview is, you know, no, is like that as well. So I have a, I usually sit with them for an hour-ish, and it's a lot of getting to know them.

Personality is very important to me, people that have character and integrity, and also who are authentic, who I feel like are not trying to make themselves seem other than they are to me. I really value that. And I also ask some legal questions, but it's not. illegal pop quiz. I try to ask questions that seem at least likely to be in their wheelhouse based on their writing sample or the classes they've taken or I sort of let them, you know, pick a subject and then I probe it with them just because I want to get a sense for how they talk and think about the law, which is what I do with my law clerks all day long. And then my clerks interview them, usually in two groups of two. And I sort of let the clerks, you know,

shape that how they want. There are some clerks who are naturally drawn to the sort of Scalia law clerk interview mode, which is, you know, a lot of, you know, difficult legal questions and a little bit pop quiz-like. And then there are other clerks who ask more questions about, you know, how people work and, you know, what their personalities are like. And so I, I tend to get, like, a balance of views from my law clerks. And then I bring everyone in. I also have my, my JA, Olivia, who's, like, truly remarkable sit with, sit with interviewees for a bit. Because Olivia's views are really important to me. So then I have everyone in and I won't tell anyone what I think until they all tell me what they think, and we talk about it for a while. And that's very much like

sort of a hybrid, honestly, of the sort of Kavanaugh and Scalia modes of hiring, which I don't know, worked for me. So it ain't broke, right? How many people would you interview for four slots? Oh, I don't have a great, I don't have a stable answer to that question yet because my hiring has been, you know, at the beginning I had to hire super quick for four people who could drop everything and move to Milwaukee immediately for a stub term. So then I did a lot of phone interviews and I did a lot of triage and I relied on people I trust basically to find me excellent lawyers. And that worked. Then I hired pretty quickly for 26. Now I'm taking my time and doing a lot more interviews, honestly, for 27 and now thinking about 28. I have not yet sort of developed like a full MO.

But I am picky. I mean, my clerk's saying I'm picky. But a lot of it is because it's just, you know, it's really important to find someone that's not only a really smart lawyer, but also it's going to be a nice person to work with here for a year. It's small, close-knit chambers. And so I don't know, I spend a lot of time to try to find that. Will you give us one of your legal questions that you would ask in an interview? Yeah. So if I'm unsure, like, what substantive area of law to ask about, then because let's say

their writing sample doesn't sort of immediately generate interesting legal questions. No, I want to see if you will hire me for a clerkship. Ask me the question. Okay, I try to ask something really, really broad. I'll be like, name a Supreme Court case that you thought was excellent or bad and tell me why. And then I'll let them talk. And then I usually, I'm, you know, reasonably well read on the Supreme Court. Usually I know the case and can sort of further pursue.

And so then I will, I will drill down on that case with them. And if we can drill down on like, you know, different opinions or different cases that touch on it. Let me ask you this. You ask that question. And I'm immediately, I'm immediately like wargaming my answer out, like doing that instant. Do I go with the obvious what I really don't like or the obvious what I would really like? Or do I go a little more obscure? No, go obscure.

You want to throw her off a little because you don't want her to be too steeped in the case. That's why I'm going pork producers. How much does she really have on dormant commerce clause at the tip of her mind right now in this interview? I'm in a crusher. No, I'm not. Yeah, you might. Don't ask me. I would immediately launch into a 30-minute tirade on bong hits for Jesus, Morse v. Frederick.

I would feel like that might be in the sweet spot of not one of the big super famous. Another strategy, which is not a winning strategy, I shall tell, which is just to try to pick something, to try to pretend to be me, basically. You know, that is very obvious. I'm going to go out. Pick something from the year you clerked for Justice Scalia that he wrote and be like, it's brilliant. Right. Exactly.

Exactly. This sounds like Judge Tabelson. and I just think this is the best opinion of all time. And I'm like, mm, okay. All right, Judge Tabelson, thank you for joining us as the junior justice friend. Sorry, I've promoted you too soon. Judge Tabelson, thank you for joining us as the junior judge friend of the pod. And we hope to have you on as the junior justice soon off.

Thank you guys so much. It's been a delight. Well, David, that was fun. have our junior judge friend of the pod. I love it. I love it. And I always like to hear the stories about how it all happened. Because I think of all of the categories of public official, the process of becoming a judge is the most opaque. And I just like, you know, more people to see inside it and see what it's like. Well, in our next episode, we have some oral arguments this week. And most importantly, on Monday was the oral argument on that ballot received case, right? Everyone agrees you have to have

submitted your ballot by election day. It has to be time stamped or, you know, postmarked or whatever. But are state laws allowing the ballot to be received after election day, unconstitutional? Is election day? Election day is election day? So oral arguments were in that case. We'll talk about that. And we have a dissent from the denial of cert in the Villareal case, David. This is that Fifth Amendment journalist who was arrested for doing journalism. And the Fifth Circuit held, nope, you cannot hold the officers liable. So another immunity case bites the dust, David. Okay, David, that's it for us today.

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