UNBIASED - Why Pence Dropped Out, Trump's Ballot Disqualification Trial Begins, Biden's AI Executive Order Explained, SCOTUS: Can Public Officials Can Block Users on Social Media?

Episode Date: October 31, 2023

1. Mike Pence Suspends 2024 Presidential Campaign; Here's Why (2:27)2. Trial Begins to Determine Whether Trump is Disqualified from 2024 Ballot in Colorado (6:35)3. SCOTUS Hears Oral Arguments in Two Cases Re: Whether Public Officials Can Block Users on Social Media (16:07)4. President Biden Signs AI Executive Order (27:34)If you enjoyed this episode, please leave me a review and share it with those you know that also appreciate unbiased news!Subscribe to Jordan's weekly free newsletter featuring hot topics in the news, trending lawsuits, and more.Follow Jordan on Instagram and TikTok.All sources for this episode can be found here.  Learn more about your ad choices. Visit podcastchoices.com/adchoices

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Please gamble responsibly. Gambling problem? For free assistance, call the Connex Ontario Helpline at 1-866-531-2600. BetMGM operates pursuant to an operating agreement with iGaming Ontario. You are listening to the Jordan is my lawyer podcast, your favorite source of unbiased

news and legal analysis. Enjoy the show. Welcome back to the Jordan is my lawyer podcast. Happy Halloween. If you're listening to this on Tuesday, I have four stories for you today. So we're first going to talk through why Mike Pence suspended his presidential campaign. We're going to run through some numbers. We're going to run through his campaign finance situation and kind of give some context to his decision. The next story will be about the trial that started on Monday in Colorado over whether Trump's name will appear on the 2024 ballot in Colorado. The third story will be about two cases that the Supreme Court is hearing today, and they both pertain to whether a government official can block an individual on social

media or whether that constitutes a violation of that individual's First Amendment rights. And the fourth story will be about President Biden's most recent executive order surrounding AI and what that executive order says and whether there's any potential liability that can arise from this executive order. Before we get into the stories, let me just remind you to please leave me a review on whatever platform you listen on if you like what you hear today. If you already have left me a review, thank you so much. I did have some questions as to how you can leave reviews. It really depends on what platform you

listen, but on Apple Podcasts, you can just scroll all the way down to the bottom of my podcast page and it has five stars there that you can just tap on or there's actually a write a review button that you can actually type out more and leave an actual review. On Spotify, right under my podcast name, there's just a star option that you can click. As far as the other smaller platforms, I'm not sure how you would do it, but that's how you do it on Apple Podcasts and Spotify. As always, my legal disclaimer, yes, I am a lawyer. No, I am not your lawyer. Without further ado, let's get into today's stories. Over the weekend, former Vice President Mike Pence announced the suspension of his 2024 presidential campaign. Why? To put it simply, his chances of winning were slim. I think we all knew that, or at least those of us that pay attention to the polls. On top of that, he didn't

have the campaign funds. So just a couple of weeks ago, all of the candidates filed their reports, their financial reports. They were due, I believe, on October 15th. And that's when we kind of got a better idea as to how much cash these candidates have at the current stage in the race. So let's talk about Mike Pence's polling numbers first, and then we'll get into the financials. Pence was polling around 4% in national polls of the Republican electorate. The reality is the top three GOP presidential candidates are Donald Trump, who's polling significantly higher than the rest. He's at around 60%. And again, all of these numbers that I discuss will fluctuate depending on which polls you're looking at. But Donald Trump's numbers are

pretty consistent around 55 to 62% in some cases. And then Governor Ron DeSantis of Florida, he's pulling at around 13%. So he's second in line. And then you have Nikki Haley, who's pulling at around 8%. And then behind those top three candidates, you have Vivek Ramaswamy. He's at around 5%. Pence was right under him at 4%. Then you have Chris Christie at around 2% to 3%. Tim Scott at around 1% to 2%. And then Asa Hutchinson and Doug Burgum at 1% or less.

When you combine the low polling numbers with the fact that he didn't have the campaign funds, it didn't make sense for him to keep going unless he thought he had a fighting chance. In some cases, like with Tim Scott, he's sitting at around 1% to 2% in the polls, but he actually has a lot of cash on hand. So for him, he's someone who can continue going and not go into debt or risk too much, whereas for Mike Pence, it didn't make sense for him to continue on. As I said, just a couple of weeks ago was when the campaign finance filings for the third quarter were made public. Pence's campaign, according to that report, had $1.2 million on hand, but they had around $620,000 in debt. If we compare that cash on hand number to the front

runners of the GOP party, Mike Pence is significantly behind. Nikki Haley's campaign finished the third quarter with around $11.5 million on hand. Governor DeSantis reported about 12 million on hand, and Trump's campaign reported around 37 million on hand. And as I said, Tim Scott, he's kind of the exception to this rule. He's actually second in line when it comes to cash on hand. So he reported 13.3 million on hand at the end of this third quarter, which is more than both Governor DeSantis and Nikki Haley, who are taking the second and third top spot right now. So for all of those reasons, Mike Pence took the stage at the Republican Jewish Coalition Donor Conference in Las Vegas on

Saturday, and what he said was in part, quote, the Bible tells us that there's a time for every purpose under heaven. Traveling over the country over the past six months, I came here to say it's become clear to me this is not my time. So after much prayer and deliberation, I have decided to suspend my campaign for president effective today. Rather than endorsing any one candidate in particular, so of course sometimes we'll see if certain candidates drop out, they'll endorse a different candidate, Mike Pence didn't do that. Instead, what he said lead us to victory, but lead us with civility back to the time-honored principles that have always made America strong and prosperous and free. End quote. So I hope that gave you a little more context as to why Mike Pence decided to suspend his presidential campaign, but let's now talk about this trial that started on Monday in Colorado, which is seeking to disqualify Donald Trump from the 2024 ballot. If the Citizens for Responsibility and Ethics in Washington group, which is who brought this lawsuit on behalf of some voters,

wins this case, what that would mean is that Donald Trump's name wouldn't appear on the ballot in Colorado, but voters could still write his name in. Okay. So he just wouldn't be that stated candidate for the Republican party. The basis of the lawsuit is the disqualification clause of section three of the 14th amendment. I have talked about this clause before, but what it says in short is that a person who held public office and therefore took an oath to protect the Constitution and thereafter engaged in insurrection or rebellion against it or provided aid or comfort to those that did engage in insurrection or rebellion, that person can no longer hold public office. And this clause has really been talked about a lot, I would say, in the last couple of years,

since January 6th, because this idea has been raised, can Donald Trump run again based on what happened on January 6th? Similar lawsuits have been filed in states like Florida, New Hampshire, Michigan, Minnesota, just to name a few. But the Colorado case is the first to go to trial. In fact, some other cases, like the cases out of Florida, have actually been dismissed for a lack of standing. So lack of standing is when the judge determines that the party challenging the law or, you know, suing doesn't have the authority to do so. So the case in Florida was dismissed for lack of standing. And Donald Trump's team tried to get the Colorado

case dismissed for the same reason, but the judge let it go forward. You may be wondering in a case like this, who is being sued? Is it Colorado? Is it Donald Trump? It's not Donald Trump. And it's not the state of Colorado. It's actually Colorado's secretary of state. And the reason is the secretary of state is the one who's responsible for putting the names on Colorado's ballot. So both in the primary election and the general election. Because the secretary of state can't just decide herself to not put a candidate's name on the ballot, the lawsuit was brought so that a judge would be the deciding person, right? So the judge would order the Secretary of State to either put Trump's name on the ballot or keep Trump's name off of the

ballot. Keep in mind, though, that this case will likely end up in the Supreme Court due to the nature of the issue. This is an issue that really has not been litigated before. We saw a similar case, but different in the sense that it didn't involve a president, and I'll talk about it a little bit more in a second. But it's not an issue that's been really litigated, and it's a constitutional issue. And if it does end up in the Supreme Court, which it likely will, what we know is that the court has a conservative majority six to three, right?

So the chance that this doesn't go in Trump's favor is slim. So just, you know, keep that in mind. Another thing to note is that this, quote unquote, insurrection ban has only been applied once in recent years. And that's the case I was just talking about that's similar but different. In that case, one of the people involved in January 6th at the Capitol was also a New Mexico County Commissioner. And he was actually removed from office last year based on this insurrection ban. And the party that brought that lawsuit was the same party that's bringing this

lawsuit against Trump. To touch on the disqualification clause a little bit so you have a better understanding of what's really being litigated here, the disqualification clause was enacted following the Civil War in 1868. The intent of the clause was to preclude former Confederate officials from holding federal or state office. However, even since its enactment, no one's really been sure as to how to enforce the disqualification clause. So let me tell you what happened. In that same year that the disqualification clause was enacted, Chief Justice Chase was, at the time, he was just a circuit judge in Virginia. And he issued this ruling that said the disqualification clause was intended to be an exclusive punishment for participating in an insurrection or rebellion. What that means is it didn't require a separate act of Congress to enforce it. It was, in and of itself, an exclusive punishment. Then,

Chief Justice Chase gets put on the Supreme Court bench, where he serves as Chief Justice, obviously, and he decides another case surrounding the Disqualification Clause. This is in the same year, by the way. All of this is happening in 1868. And in that case, he actually issued a completely different ruling. So what he held was that the Disqualification Clause was not, in and of itself, self-executing. And in the absence of congressional legislation, the Disqualification Clause could not disqualify a public official from holding office. So as you can see, two conflicting rulings. Now, obviously, the Supreme Court decision takes precedence over the earlier circuit court ruling, but the point being,

there's never really been clarity as to how this disqualification clause is supposed to be enforced. Is it self-executing or not? Then, two years after that, in 1870, Congress enacts a Section 3 enforcement statute. The relevant sections of this enforcement statute allowed federal prosecutors to remove people from office who were disqualified by Section 3 of the 14th Amendment. And the way that they did this was by a writ of quo warranto. So what that's basically saying is that a federal prosecutor has to be the one to remove an official from office for violating this, you know, disqualification clause. But then those sections of the enforcement statute were repealed much later in 1948 when the federal code was revised. So as you can see,

while section three of the 14th amendment still exists, no one is sure how it's meant to be used. The constitution doesn't provide any guidance. And that's what really makes this case so complicated. Because of the complex nature of this case, the judge overseeing it actually set forth nine critical questions that she wants answered throughout the trial in order to help her in making her ruling. And not all of the key questions that she laid out have to do specifically with the disqualification clause. It's more of just a general understanding of all of the issues presented in this case. So the questions are these, how often and on what basis does the Secretary of State exclude candidates based on constitutional

deficiencies? Two, what is the process for drafting and approving the major party candidate and statement of intent and who can revise or edit it. Three, what is the meaning and historical application of Section 3 of the 20th Amendment? This deals with presidential succession. Four, explain the 2022 revisions to Chapter 3, Section 15 of the U.S. Code. That is otherwise known as the Electoral Count Reform Act. Five, the history and application of the Disqualification Clause. Six, is the Disqualification Clause self-executing? So again, this is the issue that Chief Justice Chase decided way back when in 1868, and this is

just a question both sides are going to have to present their own arguments. Does the disqualification clause amendment apply to presidents? What is the meaning of engaged and insurrection as used in the disqualification clause? And nine, did Trump's actions meet the standard set forth in the disqualification clause? And the judge's order specifically says this list is not exhaustive. It is simply meant to provide the parties with guidance as to the current issues on which the court would find most helpful to hear testimony when deciding this matter. The judge also said she hopes to issue a ruling by Thanksgiving, and Colorado's Secretary of State has separately said that there is a hard deadline of January 5th for the resolution of the

case because that is when she has to certify the names of the candidates that'll be on the primary ballot. So we should have a ruling relatively soon, perhaps within the next month, but possibly before that. So I will update you once the judge issues her ruling and kind of do what I usually do and give you more context as to what led her to that ruling. Let's take a quick break. When we come back, we will talk about some oral arguments in the Supreme Court, as well as President Biden's new AI executive order. the supreme court justices are spending their halloween hearing oral arguments in two cases concerning a public official's use of social media both of these cases are pretty interesting they both have the potential to shine a different light on the First Amendment when it comes to social media.

The first case is called Linkey v. Freed, and the other case is called O'Connor Ratcliffe v. Garnier. They both deal with the same question, though the facts are slightly different and the outcome at the appellate level was different, which will make complete sense by the time we're done with this story. But the question is, can a public official block a user on social media if it's on a personal account rather than a government account? So again, this will all make more sense once we go through the facts of the case, but let's talk about Freed first. The specific question in Freed is this, whether a public official's social media activity can constitute state action only if the official used the account to perform a governmental duty or under the authority of his or her office. If we put this another way, what it's asking is if a public official's social media account is a personal account, does that constitute state action? Why is state action

important? State action is important because it determines who can and can't violate your First Amendment rights. For instance, if you and your friends are having an argument about politics and your friend punches you in the face, your friend may have committed battery, but they didn't violate your First Amendment rights. Your friend is just a private citizen. They're not obliged to comply with the First Amendment requirements like our free speech from government intrusion, not, you know, friend intrusion, parent intrusion. It's government intrusion. However, if you're arguing, let's say, with a police officer and that police officer arrests you based on differing views or whatever, that arrest may violate your First Amendment rights because the arrest constitutes state action. That police officer is a state actor, right? So let's talk quickly about the facts of each case, and it'll start to make more sense if it doesn't already. In Freed, Freed is the city manager of

Port Huron, Michigan. So city manager is his official title. Lindke is a resident of Port Huron, Michigan. So city manager is his official title. Lindke is a resident of Port Huron, Michigan. During the pandemic, Freed was posting updates to his Facebook account, his personal Facebook account, about the steps the town was taking in order to keep the residents safe from the pandemic. Freed was answering their questions. He was soliciting feedback by posting surveys, things like that. Lindke wasn't happy with the way the town was handling things, so he would often comment on Freed's posts expressing this, expressing his dissatisfaction. So Freed then decides he was not only going to delete Lindke's comments, but he was also going to block Lindke, which meant that Lindke wouldn't be able to visit Freed's page anymore, his Facebook page.

So Lindke files a lawsuit, and he says that Freed is denying him his First Amendment rights because he couldn't express his speech to this government official. But the court didn't agree. What the Sixth Circuit said, and the Sixth Circuit said, and the Sixth Circuit is, of course, the appellate court that has jurisdiction over this, you know, over Michigan, but other states as well, said that because Freed had been using a personally created Facebook page and not an official Facebook page, Freed wasn't engaging in state action and therefore wasn't violating Linkey's First Amendment rights. He wasn't bound by the Constitution because this was not considered state action. Furthermore, the Sixth Circuit said that a public official engages in state action

and is therefore bound by the Constitution only when the official performs a legally mandated duty of his office or invokes the authority of his office. But Lindke says, no, no, no, the Sixth Circuit got it wrong. The court misunderstood the inquiry and its attempt to identify these conditions for finding state action was misguided. So Lindke is arguing to the Supreme Court that a public official can act under color of law even when not executing a legal duty or drawing on the formal powers of his or her office. And because in this case, Freed was using his Facebook page to post information about city programs and policies, share communications from other city officials and offices, solicited feedback from the public by sharing surveys, posting job postings

for a new assistant, communicating with other constituents. He was acting under color of law and is therefore bound by the Constitution. It doesn't matter that it was a personally created Facebook page. So that is the first case. So remember, the Sixth Circuit ruled in favor of the city manager. The second case, Garnier, is very similar to Freed, yet an opposite outcome from a different circuit. In Garnier, the specific question is whether a public official engages in state action by blocking an individual from the official's personal social media account when that official uses the account to feature their job and communicate about job-related matters with the public but does not do so pursuant to any governmental authority or duty. So it sounds pretty similar, right? Here's what happened in Garnier. but does not do so pursuant to any governmental authority or duty. So it sounds pretty similar, right?

Here's what happened in Garnier. Two elected members of the Poway Unified School District Board of Trustees in San Diego, California, used their personal Facebook and Twitter accounts to communicate with the public about their jobs and about, you know, things happening within the district, things like that. Two people who were parents of children that attended school in that district would often comment back to the district members' posts on Twitter and Facebook. Again, dissatisfaction. The parents were not happy with what was going on at the school district, so the two district members decide to block the parents. The parents sue. And the Ninth Circuit found in favor of the parents, ruling that blocking the parents was a state action that violated the First

Amendment. The court held that the elected officials used their pages, even though they were personal pages, as public fora because they, quote, clothed their pages in the authority of their offices and used their pages to communicate about their official duties, end quote. And the Ninth Circuit actually noted the Sixth Circuit's decision in Freed and the split in decisions, but ultimately decided against using the logic that was used in Freed. So now the school district officials have brought the case to the Supreme Court, and they're asking the justices to answer this question once and for all. So as you can see, two very similar cases, but very different rulings. In Freed, they ruled in favor of the city manager saying this was a personal page. There was no state

action here, therefore not violating any First Amendment rights. But in Garnier, the two school district members, you know, they couldn't block the parents because that was a state action that violated the First Amendment. So it'll be very interesting to see how the Supreme Court rules in these cases. And this, to me, is one of those cases that will, you know, it won't

be released till the very end of the term because there's pretty far-reaching implications of the decision. It is a big issue. We're now talking about interpreting the First Amendment in light of social media, and that's a big thing. So these cases actually mimic an issue from 2017 involving former President Trump's Twitter account, and this was a big case that the Supreme Court never heard. In 2017, the Knight First Amendment Institute and seven other people that had been blocked by Donald Trump on Twitter, sued Donald Trump. And they argued that blocking them violated the First Amendment. And here's what happened. The lower court in that case agreed with the seven people and the institute that sued Donald Trump. They said this was a violation of

their First Amendment rights. The appellate court also upheld that ruling. So then Trump brought it to the Supreme Court. And what Trump argued is that although the case should be reviewed by the Supreme Court because this is a big issue, the case would be moot once President Biden took over in January 2021. Because at this point, you know, Biden had won the 2020 election he was taking over. So Trump said that the Supreme Court actually shouldn't hear the case, even though it's a it's a pretty big issue, as he acknowledged, because Trump had been sued as president and he would no longer be president once President Biden took over.

Therefore, the Supreme Court should vacate the appellate court's decision and instead instruct the appellate court to dismiss the case entirely as moot, which would mean that the lower court and the appellate court's ruling would no longer be precedent. So that's what Trump argued. And the Supreme Court considers the case at 11 consecutive conferences. They met about this case 11 times, and they ultimately agreed with Donald Trump and said the case is going to be sent back to the appellate court with instructions to dismiss it as moot. But the justices knew it was only a matter of time before the Supreme Court would have to hear this issue. In fact, when the Trump case was sent back to the appellate court, Justice Thomas wrote a concurring opinion, and he said in part that the case, quote,

highlights the principal legal difficulty that surrounds digital platforms, namely that applying old doctrines to new digital platforms is rarely straightforward. And he continued by saying, quote, we will soon have no choice but to address how our legal doctrines apply to highly concentrated, privately owned information infrastructure, such as digital platforms, end quote. So they knew it was only a matter of time, right? So while Freed and Garnier are rather, you know, they're low-level cases as far as the official capacity that the parties hold, but the decision will have far more broad effects and it'll apply to officials at the highest of levels, such as the president. I have included both of these cases, both Freed and Garnier, in the sources section of my website. You can always find it at jordanismylawyer.com or at the link in the podcast description. So if you are interested

in reading more about these, I have the sources there for you. The fourth and final story is about this AI executive order that President Biden signed on Monday to both oversee and invest in AI. What does it mean? Well, first of all, we have to remember an executive order is a directive from the president to various agencies within the executive branch to carry out certain duties, right? So as an example, in this case, the executive order directs the National Institute of Standards and Technology to set standards for testing in order to ensure safety before these AI systems are released to the public. From there, the Department of Homeland Security, another agency, will apply those standards to various infrastructure sectors

and establish a new board called the AI Safety and Security Board. So you're directing all of these agencies within the executive branch to do various things in order to achieve the objectives. This executive order is really broken up into eight parts, and it's very broad. It covers everything from, you know, the use of AI in federal agencies to civil rights to consumer privacy protection. But the eight parts that the executive order is broken into are these. New safety and security standards for AI, which includes things like requiring some AI companies to share safety test results with the government, AI watermarking so people can tell what's AI and what's not. That's something that's definitely needed. I get accused of being AI every other day,

so AI watermarking will certainly help. Protecting consumer privacy, it's pretty straightforward. Advancing equity and civil rights, so ensuring AI algorithms aren't furthering discrimination and also creating best practices on the role of AI in the justice system, which is interesting, so how will AI impact sentencing, crime forecasting, all of these things within the justice system? Protecting consumers overall. This goes beyond privacy. This dives into areas like how are consumers being educated using AI?

Ensuring consumers aren't being deceived, things like that. Supporting workers. How will the labor market be affected by AI and how can the government support those workers that may be affected by a potential disruption? Promoting innovation and competition. This includes grants for AI research. Working with international partners. So how will AI be standardized around the globe, and developing guidance for federal agencies' use of AI. So again, very broad, covers a ton of different topics within the AI realm. But more importantly, let's talk about what this executive order means before we wrap up this conversation. Is there potential liability

attached to it for those that violate it? After all, an executive order isn't a piece of congressional legislation. It's different, right? Yes, it's different, but an executive order still has the force of law. What does that mean? Certain executive orders set forth violation penalties. These can range from monetary penalties to criminal penalties, being imprisonment or whatever else. And of course, this particular executive order pertains more to the companies that are creating and training AI systems than it does private citizens, but still allows for penalties nonetheless. The executive order cites specifically to the Defense Production Act,

which allows the president through executive order to direct private companies to prioritize orders from the federal government as they pertain to domestic production. And as you might imagine, domestic production can it can be everything, anything that includes the domestic economy. So former President Trump and President Biden have utilized the Defense Production Act for many, many things in relation to the pandemic. But it can also be used in relation to anything that affects our economy domestically, including AI. So this is the president's way of assisting in the AI regulation sphere. I'm sure we'll see Congress introduce legislation of their own soon. I mean, Chuck Schumer, he just held a private forum with AI industry leaders just a couple of months ago. So it'll come. But obviously, Congress is dealing with many other things at the moment. So this is the president's way of stepping in and saying, hey, let's get the regulation going here and doing what he feels is necessary to be done. That concludes today's episode. I hope you enjoyed it. As always, if you did, please go ahead and leave me that review. I hope you have a great Halloween. I hope you have a great week. And I will talk to you on Friday.