Advisory Opinions - First Amendment Monday (on a Tuesday)

Episode Date: November 29, 2022

It's censor v. censor, as politicians, academics, and journalists from left to right fight over who gets to block whose free speech. Plus: David and Sarah reconsider their comments about the alleged Alito leak. Show Notes: -Novoa v. Diaz -Villarreal v. Laredo, Texas -Reason Magazine on the stakes of Villarreal’s lawsuit -David’s piece on the meaning of religious freedom Learn more about your ad choices. Visit megaphone.fm/adchoices

That's the sound of unaged whiskey transforming into Jack Daniel's Tennessee whiskey in Lynchburg, Tennessee. Around 1860, Nearest Green taught Jack Daniel how to filter whiskey through charcoal for a smoother taste, one drop at a time. This is one of many sounds in Tennessee with a story to tell. To hear them in person, plan your trip at tnvacation.com. Tennessee sounds perfect. You ready? I was born ready. Welcome to the Advisory Opinion Podcast. I'm David French with Sarah Isger, and we'll just call this one First Amendment Monday. We're going to talk about a bunch of free speech and free expression cases. Each one of them is interesting and they kind of span the ideological divide as to who is censoring whom, Sarah, which is kind of a common thing these days. And probably like when you dig

into almost any era, it's really hard to find that what right censors left and left censors right consistently, they all go after each other when they have power. So that's going to be a big part of the podcast today. We're going to talk about the special master oral argument that didn't seem to go well for Donald Trump at the 11th circuit. We're going to talk a little bit more about marriage because we had a really nice question in the comments that I thought we could address more fully. And we'll end with a short discussion of the alleged Justice Alito leak that we talked about last week. There was some heat in the comments section, Sarah. It turns out that there are some folks who find us super credible when we agree with them and not that credible when we disagree with them.

So we will talk about that just a bit more. But first, let's do a little bit of housekeeping. Sarah, we've got more Supreme Court stuff coming on Wednesday. Do you want to preview that before we dive into our First Amendment discussion? Yeah. So basically on our next episode, which will come out Thursday, David. Sorry. We record on Wednesday. Yes. Comes out Thursday. We will do all things Supreme Court. So first of all, we have a few interesting cases being argued this week. David, do you remember the honest services fraud stuff around Governor

McDonnell and that went up to the Supreme Court? And over the course of quite a while now, 10 years or so, the Supreme Court has really narrowed that incredibly broad criminal statute. So they're hearing two cases on that hilariously or maybe not hilariously, both coming out of events from the Cuomo administration in the New York governor's office, but none actually implicating Governor Cuomo himself. And I think those are worth a discussion. They are also hearing the Texas challenge about Biden's immigration priorities, about deportation priorities. That is interesting on substance, but maybe even more than that, it'll be interesting on nationwide injunctions

and other sort of procedural things that we will make sexy, even if you don't think they're sexy right now, listen. Trust me, these are very interesting. I can go all day about super broad federal criminal statutes. So yeah, it's going to be fun. And then like we did for the affirmative action case before it was argued,

we're going to set up the legal standards for 303 creative that is being argued next week. That's that wedding designer website creator and whether that's a monopoly and whether she must create websites for gay couples per Colorado state law. And also Moore versus Harper is getting argued next week. That's the independent state legislative doctrine case. It's going to be a huge pod on Wednesday. Let's just say that to be able to get through all that and set up those two cases and the legal standards. That way, if you want to listen to the oral argument, we provided you a little background. And then of course, after those oral arguments, we're going to discuss those

cases at length as well. But that's not today, David. Today, it's all about the First Amendment. Yes, today is about the First Amendment. And we're going to start with probably the most newsy of the cases. And it's another case out of Florida involving sort of the Ron DeSantis culture war legislation. So we've had a social media law out of florida that is different from the texas social media law that we've discussed that social media law has been enjoined by the 11th circuit we also have had cases filed against what is called the don't say gay bill but it's not that don't say gay bill we we've talked about that at length it's um but but no decisions have been rendered in those cases yet. But sort of the most expansive law that DeSantis signed was what was called the Stop Woke Act.

And we've talked about that before. The Stop Woke Act was an umbrella law that prohibited, that had application both to public and private institutions. And so what this, and it's not really officially called the Stop Woke Act. That's its informal, its informal title. Its actual title is called the Individual Freedom Act. And Sarah, who could be against an Individual Freedom Act? I mean, really. But it's called the Individual Freedom Act, also known as the Stop Woke Act. I mean, really, but it's called the Individual Freedom Act, also known as the Stop

Oak Act. And it's one of these typical anti-CRT laws that you see where it takes a series of prohibited concepts and prohibits any training or instructions that espouses, promotes, advances, inculcates, or compels students or employees to believe in eight specified concepts. And these are the same concepts you've seen in a lot of the anti-CRT bills that have been passed around the country that apply to public education K-12. Now, this applies to workplaces and private workplaces also applies to higher education. Okay, so that's what's really different about this because longtime listeners will know

that the state has a lot of power, a lot of power to dictate the speech of public employees in K through 12 circumstances, teachers in K through 12. How much power? How is it unlimited? The Supreme Court's never really defined that. But what we do know is that the state, based on all available precedent, has a lot more authority, a lot more authority to govern K through 12 instruction than it does certainly to govern,

say, private diversity training, private education or private corporation diversity training, or to govern higher education. And this gets really interesting, Sarah, because circuit courts have said that even public university teachers enjoy First Amendment rights on the job. So there's a lot of circuit case law. One of the first cases saying that is one of my cases, post Garcetti versus Savalas, which had really limited public employee free speech rights on the job, but not for it left undecided teaching and scholarship. But circuit courts around the country have said, hey, look, you have First Amendment rights if you're a public university professor. And so that's the framework for the Stop Woke Act coming. It came before the same judge who

enjoined a month or two ago the Stop Woke Act as it applied to private corporations. So you've had the injunction against social media law. You've had an injunction against the Stop Woke Act as it applied to private corporations. So you've had the injunction against social media law. You've had an injunction against the Stop Woke Act as it applies to private corporations. And then now this one, Sarah, is applying, applies an injunction to the portion of the Stop Woke Act that deals with public universities. That was long. Is that clear as mud? Maybe the opening line of the district court's opinion will help. It was a bright cold day in April and the clocks were striking 13. And the powers in charge of

Florida's public university system have declared the state has unfettered authority to muzzle its professors in the name of freedom. That was a spicy opening sentence, David. With a footnote, by the way, citing, of course, George Orwell's 1984, going on to write in the footnote. In this case, defendant's argument is like the 13th chime of a clock. You not only know it's wrong, but it causes you to wonder about everything you heard before. Coincidentally, Governor DeSantis signed the law at issue in April, citing back to that it was a bright, cold day in April and the clocks were striking 13.

You don't really need to read the rest of the opinion to know how it came out at that point. That was pretty much the end of the state's chances. But nevertheless, even though I will say there are moments where it, for me, David, it felt a little over the top. I mean, this is positively dystopian and yada yada and other lines like that over the top. I mean, this is positively dystopian and yada yada and other lines like that in the opinion. It also though provided a real substantive chewable decision

where it did jump in on all of the relevant arguments, which I found really helpful as well. Like a number of opinions that we have talked about, Sarah, over the last two to three years, of opinions that we have talked about, Sarah, over the last two to three years, it got spicy. It got what I would say inappropriately spicy. I think this is the same judge who heard the Stop Woke Act challenge to restrictions on corporate speech. And that one began by citing stranger things, if you might remember. Yeah. Yes. So this judge is obviously over it. He's over the Stop Woke Act. But what's interesting about this case is, and I thought he did something pretty clever, which was, he basically said, look, if you are, just to, just to illustrate how bad this case or how bad this law is and it is in its restriction of protected speech. It basically says, look, under this law, you couldn't invite Justice Sonia Sotomayor to

speak to a class of law students and offer a reflection of her own experiences because it endorses affirmative action. So the law is so broad that one provision of the law actually could and has been construed to block any advocacy of affirmative action, which, look, we've had a lot of discussion about affirmative action. We had two days of discussion about affirmative action. And we are both of the view that, for example, Harvard and UNC should lose their case. But we would never, never dream of saying that you should be barred from advocating the contrary side. And this comes from provision in the Stop Oak Act that says that prohibits the inculcation or advancement of a view that a person by virtue of his race or sex, color, national origin, or sex should be discriminated against or receive adverse treatment to achieve diversity, equity, or inclusion.

against or receive adverse treatment to achieve diversity, equity, or inclusion. And so this is a sort of direct frontal attack, not just not on affirmative action, but on advocacy for affirmative action. And maybe more importantly, debate over affirmative action. And again, going back to the opinion here, when asked directly whether concept six, the one you just read, David, is affirmative action by any other name, defense counsel answered unequivocally, your honor, yes. Thus, defendants assert the idea of affirmative action is so, quote, repugnant that instructors can no longer express approval of affirmative action as an idea worthy of merit during class instruction. Okay. Defendants further assert that this prohibition extends to guest speakers, as you said, David, if they are invited to participate within a course. As a result,

according to defendants, university professors cannot organize an in-class debate between guest speakers about the merits of affirmative action if one of those speakers were to espouse, promote, advance, inculcate, or compel students to believe or otherwise endorse the idea of affirmative action. You know, because I think that it's important, David, that those eight concepts that are listed, the sort of eight prohibited things, there's going to be plenty of people who think the university of professors shouldn't be

endorsing any particular concepts, right? It should all be about grappling with ideas and thinking through the best arguments of both sides, et cetera. And so, yeah, I don't, part of me is very sympathetic to the idea that having all these university professors tell students, this is the only way to think about it. And that's what the Stop Woke Act was trying to get at. I can be very sympathetic to on the one hand. But when you write bad laws, as we've talked about repeatedly, David, you end up with stupid results. And here, of course, this is a very stupid result because the whole purpose would be to actually debate the concept of affirmative action. And by doing so, you are going to want to have either, I think it's a very good idea, for instance, to have guest speakers

and each one taking opposing sides of an argument. One of those guest speakers, by definition, taking opposing sides of an argument, one of those guest speakers, by definition, presumably would want to promote, I'm using a term, a statutory term here, promote the concept of affirmative action. Same thing, David, I'm not particularly offended with a professor who is, for instance, great at talking about both sides of an issue, really grappling with the best of both arguments, and then says, by the way, I think it's an important part of this class that you know my bias is heading into this. I strongly believe in affirmative action. I think it is a good for X, Y, and Z reason. Now, we're going to spend the rest of this class testing whether you think that my reasons are strong enough and the logic

behind them. I mean, one could imagine a logic course on that. First of all, one could imagine a statistical course where you're teaching students about polling, for instance, where you're going to want to start with something like that. That should be applauded by professors, at least tolerated by professors as a good pedagogical instrument. I think it's wonderful when students can't tell what their professors believe about something, but I think it's fine when the professor's like, here's what I believe. And so now we're going to discuss all about that topic and make sure that you

understand that regardless of my personal belief. And that's the part of the stop woke act that is stupid. Well, and we centered around, for example, Sonia Sotomayor, but the language here is really broad. So it prohibits training or instruction that espouses, promotes, advances, inculcates, or compels. Now the compel part you can, is probably a most, the most precise of it. In other words,

agree with affirmative action or you don't, or you get an F. It's that, that's probably the, the most solid element of it. But these words, espouses, promotes, advances, inculcates. What if you assign reading that takes a position? Is that going to inculcate this belief and if you know a lot of folks then when we we've had this argument um we've had this argument a lot when you go through the uh the list number one of the eight concepts is members of one race color national origin or sex are morally superior to members of another race, color, national origin, or sex. That one is probably the most unobjectionable element of the Stop Oak Act as far as a prohibition goes. But the reason is because it's also difficult to imagine espousing that as a concept or promoting or inculcating that as a concept without also violating existing non-discrimination laws.

So you have non-discrimination laws that already exist. And if a teacher is sitting there teaching that there's something inherently wrong with black people or white people or whatever it is, then you've probably got some Title VI issues coming there. David, I have a question for you along those lines, because again, I think a lot of people who saw the Stop Woke Act saw it as a remedy to a real problem that they're experiencing in their kids' lives. I mean, this is often in lower schools, but let's take this up in the professor context. A, of course, these professors, the ones being dealt with in this lawsuit, are state employees.

And so one of the arguments from the state was that they are mouthpieces of the state, and this is the state speech, and therefore, you say what we tell you to say, nothing more, nothing less. I want you to address that. But number two, do you think it would pass constitutional muster if you rewrote the Stop Woke Act and said, here are the eight concepts and the eight concepts are written identically to the way they are now the sort of the baddies if you will yeah and uh what it says is if you present um you know reading guest speakers or your own views that compel, inculcate, espouse, promote any of these eight ideas, you must in addition include opposing viewpoints. Okay, so my answer to one dictates my

answer to two. Great. So just to give a little bit of a background and a primer, before a case called Garcetti versus Sabalis, public employee speech, and these are university professors or public employees, and let's just assume that everything we're talking about here is a matter of public concern. If you were speaking about a matter of public concern, your First Amendment interests, your First Amendment rights would attach. Now, that was then subject to balancing where their state also had some interest, for example, in how it ran its workplace, et cetera.

But as a general matter, as a general matter, speaking as a First Amendment litigator, if you could show that a public employee was speaking on a matter of public concern, it was going to be hard for the state to win then. It was going to be hard for the state's censorship to prevail. Your right to speak on a matter of public concern was going to generally triumph. Then along comes a case called Garcetti versus Sabalas. And in that case, the Supreme Court, and we've talked about this before, essentially says this, that, wait, even if it's a matter of public concern, if what you're saying

is part of your official duties, in other words, your words are what the state is asking you to say as part of your job with the state. You don't have any first amendment rights there. That's the state speaking. You are the state's mouthpiece. But then it did something interesting in the opinion, because a lot of the folks who are arguing about this case were saying, whoa, what about teachers? Because teachers are public employees, but it's not like going to the DMV, right? It's a different thing. So the Supreme Court very helpfully, completely, totally, utterly punted on that. And when I say completely, totally, utterly punted, I mean it. They said, totally, utterly punted, I mean it. They said, this opinion doesn't apply to teaching and scholarship. They didn't then say, but Pickering still does. Then it didn't say, then I analyze it

through Pickering. It just left it. It just said teaching and scholarship will be dealt with on another day. And so that left it for years in the lower courts to work this out. And so, Sarah, we've talked about precedent maturing and precedent reaching a point where it's matured so much it has its learner's permit and then its driver's license and it's just rolling around town. Lots of precedent in lower courts has essentially fundamentally said this. If you're K through 12 and you're a teacher and you're speaking, well, then you're the state's mouthpiece. But if you are a professor at a university and you're speaking, you have First Amendment rights. And the reason for that difference is that where there was a lot of pre-Garsetti Supreme Court opinion that said, look,

you know, freedom in the marketplace and ideas in higher education is of vital importance. And in one case from the 1950s, it even talks about how if you don't have freedom in higher education, our culture will stagnate and die. So these are the circuit courts have said, well, if you look at all the pre-Garcetti opinions, the Supreme Court obviously has an extreme interest in academic freedom in public universities. And we haven't really seen them show a whole lot of interest in K through 12. So that's where it stood forever. in K through 12. So that's where it stood forever. One of the reasons why I paid a lot of attention to the justice, to Coach Kennedy case, the praying coach case, was what would it say about Garcetti in the sense of, was he on the job when he was doing this praying, or was he considered sort of

doing it all on his own? And the court said, that's all on his own. It's not on the job. So they didn't even really have to get into Garcetti. And so what Florida is saying essentially is all of that precedent all around the country that says that public university professors have first amendment rights, it's garbage. It's wrong.

It's terrible. They're just state mouthpieces. And so they're launching a frontal attack on the concept that a public university professor has their own independent First Amendment rights when they're on the job. They're wanting to say that the law should treat university professors the way it treats K-12 teachers. So if they win that case, Sarah, then all bets are off. They can say teach against affirmative action, or they can say teach both sides of the controversy. They can say do whatever you want.

And if there's a change in administration and a change of the political party, then the whole curriculum can change in higher education, much the way it does in K through 12. then the whole curriculum can change in higher education, much the way it does in K through 12. And so I think the the every folks who've been involved in academic freedom litigation for a while have said this Stop Oak Act isn't just unconstitutional under existing precedents. It's grotesquely unconstitutional unless you get the Supreme Court to sort of say that Garcetti versus Sabalas opinion, when we've carved out teaching and scholarship,

we don't carve it out anymore, which I think is unlikely. So just to clarify, David, because it would still be content-based, if you're going to teach one side, you must at least offer opposing viewpoints. That would still be content based. And so if you're not under that Garcetti sort of pure state employee speech,

then they can't compel your speech. The end. Right, right, right. So, okay. I know you've said before that there's a really good way around some of this, which is, as you mentioned, right, civil rights laws. Like if you're teaching that one race is inferior, you violated other laws. We don't need the Stop Woke Act for that. But let's follow down the affirmative action thing a little more. That doesn't violate any civil rights laws. And so what if, you know, every professor at the University of Florida is teaching exclusively that affirmative action is the only way to have racial equity in the country. They do not include opposing viewpoints, but they also don't tolerate opposing viewpoints in their, you know, curriculum, questions in class, things like that.

What remedies does the state have? What remedy do students have? What are they supposed to do here? I've had cases not exactly like that, where every teacher in the whole school is espousing one point of view. I've never seen that. I've never encountered that. But I've certainly encountered cases where teachers are intolerant of even student dissent. And you know what? You win those cases. If you can prove retaliation though, basically.

Yeah, sometimes you can. Sometimes it's harder. There's a case that I had. What about me who was just also a mediocre student so when i got a b professor was going to be like yep she's a b student man it also doesn't help that she was trying to defend reagan's cold war policies and this entire class was about literally it was called reagan in the cold war but the point of the class was how like re Reagan was like the worst president ever

and caused the Cold War maybe, or definitely didn't end it. I can't even really fully describe to you in fairness what the thesis of the professor was, but every paper assignment was like, now talk about how Reagan almost caused World War III. And I was like, Reagan did not almost cause World War III.

In fact, you know, and I would get bad grades, but I also wasn't a very strong writer and I didn't have anything to back up my opinions because we weren't reading any of those things. This is such a fun conversation. So anyway, the, if you're saying I got to be because I'm conservative, you're going to lose. I mean, you're going to lose unless the professor says you got to be because you're going to lose. I mean, you're going to lose unless the professor says you got to be because you're conservative. Right. I'll give you an example. We had a case in California where the, and I think I've told this story briefly before, but the teacher gave an assignment of give it, it was a speech and debate class. And he said, give a speech on the

topic of your choice. And so the student got up and gave a speech and debate class. And he said, give a speech on the topic of your choice. And so the student got up and gave a speech on how he became a Christian and why he became a Christian. The professor basically walked out of class and then refused to grade the paper and wrote on the paper in ink, ask God what your grade is. Okay. We won that case, right? We won that case. Um, another case that we had, but what about my case? No, your case, I'm sorry, but fair, but then like get to this university, you know, the state has an interest in students like me actually getting the education that we sort of paid for, which is, you said this class was called Reagan in the Cold War. You didn't have us read anything that

presented any opposing viewpoint on why Reagan might not have been the worst president in the world. And then when I tried to write a paper about why he might not have been the worst president in the world, you gave me a bad grade for a good reason, which is I didn't have any of the reading to back up my thesis. So, okay. Oh, this is, this is so fun. Okay. There are three layers of academic freedom. All right.

Layer number one, top layer, the institution has its own academic freedom. So the institution can say, for example, this history department is dedicated to gender theory in the medieval period. Like that's what, that's what this history department is dedicated to gender theory in the medieval period. Like that's what, that's what this history department is about. Right. And then it can sort of say, okay, we're going to exercise that academic freedom to hire exclusively gender theory experts in the, in the medieval period. But then once the professor is hired to teach medieval gender theory in the medieval period. But then once the professor is hired to teach medieval gender theory in the

medieval period, they're going to have a lot of academic freedom in how they teach gender theory in the middle, in the, in the middle ages. And they wouldn't have that, but they wouldn't have the academic freedom to say, Oh, I was hired to teach about gender theory, but instead I'm going to teach the battle of Gettysburg. You go going that far afield from what the academic

mission, sort of how the institution has defined its academic freedom, isn't going to fly. And then the third layer is students. Students have a degree of academic freedom as well. They don't have a freedom to any particular kind of grade. They're very limited. A teacher can set the boundaries of debate in a class. In other words, you can say, we're debating the Middle Ages now. We're not going to debate, you know, Donald Trump's chances in 2020. You're not going to curse in this class, et cetera. You can set rules. But one thing you can't do is impose punitive reprisals against expressions of disfavored

viewpoints. And so these three things, when it's all functioning together, allow for differentiation amongst institutions, because not all institutions will emphasize the same thing. It allows for differentiation in academic approaches, since not all professors choose to teach in the same way, and allows for viewpoint diversity in students. So when it's working, it's a beautiful thing, Sarah. It's a beautiful thing. The problem is, as you know, that parts of teaching and student evaluation are so subjective that judges will stay out, man. They will stay out. And also what's also quite subjective

are things like tenure considerations. And so you got to really bring the freaking goods if you're going to file a tenure disapproval or a promotion disapproval case. Because they don't like to make these subjective judgments. If there's hard evidence of viewpoint discrimination, then you're going to win. In the absence of that, there's going to be a lot of deference.

I remember my big case where I had a trial over denying a teacher a promotion because of his political viewpoint. It was so obvious from the first second of the case that the judge wanted nothing to do with faculty evaluation. He didn't want to be in the faculty evaluation business at all. So I had to convince that judge that this was something different. And so now here's where I think the sheer number and variety of, and the access of ability to, or access to information of students really starts to matter.

or access to information of students really starts to matter. Your own evaluations of schools, your evaluations of professors, the marketplace of ideas saying, this school is an indoctrination factory. This school is a school that allows academic freedom. These kinds of, this information is, I think, incredibly important. So FIRE, for example, is a really critical resource if you care about First Amendment protections. And I should I should say I'm a former president of fire in public and private schools, whether or not it's obviously not First Amendment protection in private schools, but protection of freedom of expression. And so

there should be a functioning marketplace of ideas that says, if you go here, or if you take this professor, get ready, you you're in for a world of hurt. That unfortunately, that stuff wasn't available for us. It wasn't there, but it's there now. I just think it's maybe like mine is all very circumstantial evidence, but I was a B student in high school and got fives on, I forget how many AP exams, including in classes. I got like a D in BC calculus and a five, five on the AP. Same in government. And then in college, I was a solid B student who obviously did very well on my LSAT. There's, you know, there's some feelings here that perhaps there was retaliation for being a difficult child, being a difficult teenager.

I want to leave the Stop Wilk Act now to talk about some other First Amendment cases that I think fall under this umbrella. And we're going to travel from the 11th Circuit, which is where this case was. And by the way, we didn't mention that Judge Walker was appointed by President Obama. I am curious to see what the 11th Circuit does with this opinion. I think, and I'll be curious what you think, David, that I think it will come out the same way, but much, much narrower with more hand wringing and more discussion of the genuine problems that DeSantis and a lot of political bodies are trying to deal with right now. Which is that there has been a total collapse of the institutional interest in some of that free speech at the college level. And it sucks. And it sucks for students like me and for students who get sort of trapped in that system. And it

doesn't mean that we should change the law about it, by the way, or somehow ditch the First Amendment because of it. But that's what I'm expecting from the 11th Circuit. More of a, we don't like this, we don't like this, we don't like this. However, we are bound by precedent. And as of the Supreme Court's current precedent, these professors implicated by these portions of the Stop Woke Act are not state employees for the purposes of speech when they're teaching in class. I agree with you, Sarah. I think the 11th Circuit is going to affirm most of Judge Walker's ruling, maybe not all of it. And I do not think it's going to quote Orwell. I don't think it's going to quote Stranger Things when it reviews the corporate provisions of it. think the 11th Circuit is going to be more circumspect. And also, I think it's worth repeating that a lot of this stuff that is making people really angry about DEI, diversity, equity, inclusion initiatives, things like racial sorting, things like, you know, constant denigration of

quote unquote whiteness. There have been some civil rights cases filed already under Title VII, under Title VI. And I think you're going to see more of that. I think our friends at, some of our friends in Pacific Legal have filed a recent case. And you'll see more of that. And especially you'll see more of that if the Harvard case and UNC cases come out the way I think that they will. So these civil rights statutes protect people of all races. And so if you're subject to actual racial discrimination, no matter your race, you're going to be able to resort to civil rights litigation. Now, a lot of people conflate being exposed to ideas with harassment, and that's not the same thing. And so we got to be careful about what we're talking about. But we have seen and I think we will see more civil rights cases around sort of the most egregious stuff.

So I think it's fair to characterize this district court opinion in Florida as a very pro-speech opinion. Again, whether you agree with it or not, it's certainly not stifling anyone else's speech. It is simply increasing the speech of these professors, speech that you may not like, by the way. But I think it's worth heading over to the Fifth Circuit on some recent First Amendment cases over there that also came out in a pro-speech way, but maybe with some twists, David, that I thought were worth revisiting. So one of the cases, by the way, we have talked about already on this podcast. This is the teacher who gave the assignment, a written assignment, this podcast. This is the teacher who gave the assignment, a written assignment, which will become relevant here, to write down the Pledge of Allegiance and listen to Bruce Springsteen's song

Born in the USA. And the purpose of this assignment was to teach students that people sometimes recite things every day out of habit and without thinking about what they are actually saying. I'll be honest, when we first ran across this case and first talked about it, I thought the assignment was very different than it turns out the assignment was. To me, if you assign, write down the Pledge of Allegiance, and then listen to Born in the USA, and think about a thing you recite all the time and don't really know its meaning, about a thing you recite all the time and don't really know its meaning, that's an anti-American assignment. But that's not what this assignment was. So one of his students, who is a young black woman, said that she did not wish to participate in this assignment. She felt that the portion declaring America to be a nation under God fails to recognize many religions and does not match her

personal religious beliefs. And because contrary to the words of the pledge, there is not freedom and justice for all in America because she and other Black people continue to experience widespread racial persecution. Okay, so on its face, David, this actually, if you only read that far, actually pretty easy case. Just because you don't like the assignment or don't sort of agree with the readings that you've been assigned doesn't mean that you simply don't have to do the assignment. You still have to do it. You can write down all of that stuff. You can even say, I disagree with this assignment, or I actually have given a lot of thought to the Pledge of Allegiance, and here's all the ways in which I don't recite it mindlessly because I disagree with

all these portions of it, and I choose not, you know, all of that. But you do have to complete the assignment. She didn't. Looks like a pretty easy case. And that her various claims, and she had quite a few, would all be thrown out like on their face. But if you keep reading, her teacher here, this is a senior sociology class in high school by the way which is cool that's i didn't have that option her teacher informed her in front of the entire class that he would give her a grade of zero on the assignment because she didn't do it again

fair enough what's more arnold went on and delivered extended remarks that confirmed that his agenda here was not pedagogical, but personal. As he told the class, and here we go, David, you can have all the beliefs and resentment and animosity that you want, but if you can tell me two countries you'd rather go to, I will pay your way there if they're communist or socialist. Most of Europe is socialist and it's crumbling or it's communism. But if you ever come back, you have to pay me twice what it costs me to send you there. You know, there's a lot of things I complain about. So when it comes time in November, I go vote or I protest in writing, in legal. Those are the ways we do it in America. Where a country will crumble is when people coming into a country do not assimilate to that country. That doesn't mean you forget day of the dead

and whatever cultures you maintain your language. That doesn't mean that, but you're not going to drive on the left side of the road and you're not going to impose Sharia law because it's not this country. But what is happening, and I can say it a lot more than you because I've lived longer,

it's almost as if America's assimilating to those countries. Okay. So she brings a lawsuit and claims that, you know, her first amendment rights had been violated in class and the school district on behalf of the teacher here claims qualified immunity says, look, maybe it is, maybe it's not, but it wasn't clearly established at the fifth circuit. This is decided in the student's favor,

basically saying like, look, this is actually pretty weird. And he's saying some stuff that does make it appear like this is more about inculcation than it is about an actual assignment and making her say that she agrees with the pledge obviously would be unconstitutional so then it goes to this on bonk vote david and this um this by the way is not quite a year old so this isn't new news but you'll see why i'm bringing it up later uh 7-10, they declined to actually take it on box. So that lower opinion by the panel stands. And there were some interesting points, right? The dissent, the ones who want to hear it again

and revisit and perhaps grant qualified immunity, their point was this was a written assignment. We've never had a First Amendment case at this sort of high school level where students can decline a written assignment and somehow that's a First Amendment violation. And the answer from the 10 who were, it gets confusing because they're the dissent, the deniers actually, was like, yeah, there isn't one, but this is a weird case. Most of the time, it's like, no, you must stand for the Pledge of Allegiance. It doesn't change that if you simply say, no, you must write it down. And look, I actually was very sympathetic, but I am perhaps more sympathetic to the other dissent from denial of rehearing. In our circuit, public school teachers

can make students pledge allegiance to Mexico, but can't make students write down our own pledge. The first assignment is a cultural and educational exercise, but the second is a compelled patriotic statement forbidden by the First Amendment. A teacher who gives the first assignment merits qualified immunity, but a teacher who gives the second will have to convince a jury he had a pedagogical purpose. I assume the reverse is also true. So a teacher can make students pledge allegiance to the American flag as a cultural and educational exercise, but can't make students write down the Mexican pledge if he wants to promote el patriotismo. Our law in this area is, in other words, a dumpster fire. We should have taken this case on bonk to put it out.

You know what, David? I will kind of agree with that. Now, that's not the real reason they wanted to take it on bonk. You take a case on bonk because more likely than not, you want to change the outcome at the panel level. But nevertheless, a lot of this First Amendment stuff is a dumpster fire. And this is why we revisited this whole case, David, because there's a mess at the fifth circuit. That dumpster fire had some additional gasoline poured on it this month with a different case that I think people will be kind of shocked about. Maybe not. Yeah, should be. Hopefully, especially advisory opinions, listeners. I hope so. So Priscilla villarreal is a local journalist often critical of the police and she was arrested for journalism and she was held in jail she was

mocked by the officers they took pictures of her they jeered her. They laughed at her. She filed a habeas corpus petition that the government then didn't oppose. And that's how she got out of jail. Then of course she filed a lawsuit alleging the violation of many of her rights, all of the rights, uh, first, fourth, 14th. And the question is, do those police officers who arrested her get qualified immunity? So let me tell you a little bit more about this case. All right, so she's not a traditional journalist.

She posts her stories on Facebook. She has 120,000 followers though. She's one of Laredo's most popular news sources, by the way, because of that. And for instance, she found out that the relative of the chief assistant district attorney was arrested for animal abuse charges and that they then changed that, like they recalled the arrest warrant to pursue a civil settlement instead. So she wrote a bunch about how that was ridiculous and shouldn't have been done and that it was corruption, right?

Because it was the relative of the district attorney. She live streamed police officers choking an arrestee during a traffic stop. They don't like her. That's the point, David. In fact, the district attorney told her that he did not appreciate her criticism of that animal abuse decision. On another occasion, an officer threatened to take her cell phone when she was recording a crime scene from behind a barricade while saying nothing to the other members of the media standing next to her. Pretty good evidence that they don't like her. So she published a story about a man who committed suicide. The story identified the man by name and revealed that he was an agent with Border Patrol.

She uncovered the information from talking to a janitor who worked near the scene of the suicide and then contacted the Laredo Police Department officer, Barbara Goodman, who confirmed the man's identity. By the way, intrepid journalism to like find the janitor to get the name in the first place, then to contact LPD to confirm that she had the right name before she published it. Frankly, that's great journalistic tactics there. Okay. The following month, she published the last name of a family involved in a fatal car accident. She learned the family's identity from a relative of the family who saw a video that Villarreal had posted. Again, she contacted Officer Goodman to confirm the information. The officer confirmed it. Six months later, two arrest warrants were issued for Villarreal for violating Texas Penal Code 36.06C. I'll read it to you, David. A person commits an offense if, with intent to obtain a benefit,

he solicits or receives from a public servant information that one, the public servant has access to by means of his office or employment, and two, has not been made public. So David, just like on its face, this law makes a ton of sense. For instance, you go to someone in government and ask them about an investigation into a company, a public company, maybe, to find out that, you know, ooh, there's something bad going on. There's about to be a huge public scandal around this company so that you can ditch your stock in that company. around this company so that you can ditch your stock in that company. That would seem to clearly violate 39.06C, to intent to obtain a benefit, solicits information from a public servant that the person has access to because of their office and that is non-public information. Great. The problem, as I hope you can see, is that it would appear to apply to all journalism, maybe, anytime you ask to confirm information for a piece before you publish it. So a person commits an offense if, with intent to obtain a benefit, in this case, the benefit that she was said to have obtained was Facebook

followers. Or if you're working at the New York Times, right? Clicks. That's a career benefit to you when your story does well. Or put a scoop behind a paywall, Sarah. Clearly a benefit. Solicits information. You don't even have to get it. Just asking the question would be enough for a public servant, in this case, Officer Goodman, that the public service has access to

because of her employment, correct? And it is non-public, also correct. So she clearly violated 39.06C. Hmm. So the Fifth Circuit very much, the most, finds that there is no qualified immunity for this, that it is such a clear violation of the Constitution, even though it was not clearly established. And by the way, it's worth noting that in both of the cases that we just talked about, it's Judge Jim Ho writing on the pro-speech

side of these. And if that name sounds familiar, we do talk about him quite a bit on this podcast. He seems to keep getting really interesting cases. But maybe most relevantly, he's the boycotter for the Yale Law School stuff. And his argument in that was, this is not an anti-speech boycott. This is a pro-speech boycott. I want the students on campus to be able to speak. And I want speakers to be able to come to campus and speak. And I think that part of the most compelling part of his argument,

and you and I have talked at length about the boycott and sort of our agreement with the concept and maybe our disagreement with the execution, but you can't say he's not consistent. And I do think that these two cases provide an important foundational background to the free speech philosophy of judge Ho. And so his point is,

yeah, I get it. It's not clearly established because nothing this egregious has happened before. And so he cites this case that I think is just, he's right. It's spot on. Basically, police officers come in to execute a search warrant and the person in the home kneels down to pray while they're executing it, not disrupting them whatsoever. And they prevent that person from

praying. And so that person sues and it's like, well, it wasn't clearly established that we couldn't stop her from praying because there's no case like that on point. I mean, it gets to the whole problem with qualified immunity jurisprudence as it is right now. But his point is it is so obvious that you can't arrest a journalist for doing really basic, obvious journalism, getting a scoop and then calling to confirm it with the government body. How could you possibly think that that was a criminal offense? Nor do I believe you did think it was a criminal offense. You just found this. Turns out nobody had been arrested under that for 30 years. It looks clearly retaliatory. We want to let this go forward. And David, the reason I bring all this up and the dumpster fire in that previous case is because this case is going on bunk. So a majority of the Fifth Circuit voted to hear that

case in a, as Reason put it, in a rare move that signals some discontent with Ho's majority opinion. Put differently, it's not looking good for Villarreal, nor for any journalist in the Fifth Circuit who would like to do their job without fear of going to jail for it. Now, the en banc rehearing has not happened yet. We don't know the outcome of that rehearing. But sort of like when the Supreme Court takes your case, your percentages aren't great at that point for whatever that lower panel, that original panel opinion was, in this case, Judge Ho's opinion. Now, maybe they're just trying to clean up the dumpster fire, David. Both this case and that teacher are both First

Amendment qualified immunity cases. They're not split-second officers having to make a decision in the moment. These officers got two search warrants over months to go do this. Yeah, this is deliberate. Very deliberate. I find it fascinating, again, in the context of the Stop Woke Act, in the context of that onion amicus brief

that we talked about, where I said, David, that, you know, the interception of a prosecutor and a magistrate judge involved, which was also involved in this case, right? They sought the search warrant from the prosecutor, sought the search warrant from the magistrate judge and the magistrate judge signed it. Now, of course, in this case, the prosecutor's in on the constitutional violation because as we've seen, she writes about the prosecutor, the prosecutor told her that she didn't like her,

but the magistrate judge. And the question is, if a neutral magistrate signs off on a search warrant, can you really get qualified immunity? Forget the clearly established law. And in the Onion case, David, which in some ways looks kind of similar. Yeah. Anyway, I hand that over to you of is First Amendment jurisprudence just a dumpster fire that we need to start working out at this point? Yeah, I don't think the First Amendment

is really a dumpster fire in general jurisprudence. It's actually pretty stable and predictable except in edge cases. So to give you a sense, Sarah, where the dumpster fire really is, it's really in this K through 12 space where the law is really unsettled and passions are very high and people are very sure they know what they law to be when they're in charge. But when they're not in charge, they are not so sure.

So I'll give you a great example. I've had a lot of the discussions with people who really are passionately in favor of the anti-CRT laws and say, teachers have no First Amendment rights, right? They are the mouthpieces of the state. And you go, okay, if that's the position, then they can be mandated to use preferred pronouns. Well, no. Oh, wait. Hold on. And in fact, Judge Ho has a really, he writes this in that Arnold opinion. He says, imagine that another public high school teacher prepares the following spelling assignment. Oh, and remember, these are, again, under this hypo. The teacher was claiming they needed to be able to memorize the Pledge of Allegiance, and Ho's point was, they're seniors in high school. They've memorized the pledge. So this is not a memorize the pledge assignment that beggars belief. And here he has

the hypothetical spelling assignment for seniors in high school. Imagine that another public high school teacher prepares the following spelling assignment. A worksheet tells the story of a person whose gender identity differs from their biological sex at birth. The pronouns in that story are all left blank. The teacher instructs the students to fill in the blanks of that story with female pronouns. Now imagine that the teacher's required pronoun usage deeply offends one or more students. May the teacher punish students who refuse to endorse the teacher's pronoun usage on the ground that it's just a spelling test to ensure that high school seniors know how to spell she and her. And again, the point here is that the written assignment

isn't the part that matters. And it's not that you can name some hypothetical pedagogical reason. It has to be realistic. You know, it has to pass the smell test. And then here's the kicker, David, because if you're listening to this or reading it, you probably filled in which side

that assignment you think fell into. But if you go back, it doesn't actually say. Does it matter whether the student is offended because she believes strongly in pronouns consistent with biological sex at birth or pronouns that accommodate a person's preference? Yeah, that's why we are in a state of confusion about this combined with high passion. And we have a body of law surrounding K

through 12 speech and expression that I'm not, that has not been fully and adequately developed. And so that's where I think the Supreme Court's going to have to get busy. That's where I think some of you go way back to pull from the advisory opinions archive. You know how much we loved Angry Cheerleader? So much. The Angry Cheerleader.

We love that case so much, but it didn't go maybe as far as it needed to go to help clear some of this stuff up, even though it was, of course, dealing with off-campus communication. It was a good decision, I think a good opinion, but we're still in a bit of dumpster fire territory here. So, but it is, I do think one last thing, Judge Ho, I think he accurately, and if we go back to the Yale discussion, he very accurately explained that we have both a political, legal problem with free speech in this country right now and a cultural problem. In other words, so a judge can be very effective in dealing with the legal problems of free speech.

The cultural problem is the really thorny one because that's where you're often getting into competing free speech interests. So for example, a boycott is an act of free speech, but a boycott also can be used to suppress speech. So you begin to see how complicated it gets. And on that police officer case that again is going on bonk,

I'm sure we'll cover it when it does. You know, Judge Ho had two options. He was like, either the law is unconstitutional or on the alternative. She didn't actually obtain a benefit by having Facebook followers because journalists sort of, by definition, don't obtain benefits from just doing their their basic job. just doing their their basic job um i'm actually inclined to say no it's i think you don't want to get into splitting hairs over what a benefit is on what the overall purpose of that law probably was it's a badly written law they need to rewrite it therefore it's fac overbroad. Yes, absolutely. Absolutely. All right.

Well, man, we've gone for a while and we haven't hit our 11th Circuit stuff. We haven't yet. Well, the good news is on the 11th Circuit, we don't have the opinion yet from the 11th Circuit. So this is the special master case coming out of the Mar-a-Lago search warrant. And the judges, the three panel, sorry, the three judges on the panel, all Republican appointees, two Trump appointees. But either, I mean, you could look at that and say, oh, that's great news for Donald

Trump. It wasn't. Two of the judges, the two Trump appointees, as it happened, were the ones who had already heard this case, at least the very small emergency injunctive part of it that allowed the Department of Justice to keep the classified materials. The 35 minute argument could not have gone worse for Team Trump. 35 minutes were on how the Trump team loses because there's like four different ways and they weren't sure whether, you know, cause you can't really lose on all four because if you don't have jurisdiction in the first place, you can't reach number two, et cetera. So, um, there was no real discussion of how the Trump team could possibly win this. could possibly win this. At one point, the Trump lawyer referred to the search warrant as a raid. And one of the judges interrupted and said, raid, is that the correct term?

And he was like, sorry, I guess that, you know, is a bit loaded, and then continued to use the term raid. It just didn't go well. Interestingly for the government, they brought on a new pinch hitter for the oral argument. We've talked about him before, David. I gave him my best oral argument of last term award. Sopan Joshi, but I pronounced it wrong last time. Joshi, Joshi. I'm so sorry. Now I'm freezing in the moment and forgetting how to pronounce it.

But he's in the Solicitor General's office at the Department of Justice and has now been brought in under the special counsel for that ongoing investigation. We'll see what the 11th Circuit says and just break that down when the opinion comes out. And we'll take a quick break to hear from our sponsor today, Aura. Ready to win Mother's Day and cement your reputation as the best gift giver in the family? Give the moms in your life an Aura digital picture frame preloaded with decades of family photos. She'll love looking back on your childhood memories and seeing what you're up to today. Even better, with unlimited storage and an easy to use app, you can keep updating mom's frame with new photos. So it's the gift that keeps on giving. And to be clear, every mom in my life has this frame.

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Okay, David, next up on our list, we're gonna just, we're gonna get through these fast. We got a comment on the AOPOD that I thought was worth you giving a short answer to. David, you have written several times that you feel the Respect for Marriage Act contains sufficiently strong religious protections that it should be supported. However, I have not seen you do a deep dive into those protections, only reference them in a larger piece. Could you go into them in a future podcast? For instance, the act contains language that reasonable and sincere people hold diverse beliefs about the role of gender and marriage and that

such beliefs are to be afforded, quote, due respect. What does this language actually do in a legal sense? It doesn't seem to have any operative effect from what I can tell. It doesn't tell anyone to do anything or not to do anything, doesn't provide any standard of evidence or review, etc. What makes this text any more important than any other preface to a law? So there's a few things about the Respect for Marriage Act that are important. Here's number one. Number one, the Respect for Marriage Act explicitly does not repeal any existing religious liberty protections. Now, why is that important? Because the Democrats have consistently advanced a bill called the Equality Act

that is an LGBT rights bill that has included within it a repeal of RFRA, the Religious Freedom Restoration Act, to the extent that RFRA implicates the Equality Act. So for a long time, Democrats have advanced LGBTQ rights bills that have contained within them rollbacks of religious liberty. So this bill explicitly refuses to roll back any existing religious liberty protection.

Number two, the bill says, and I'm gonna read this and explain its importance. And it's combined with the language that you just read about, you know, respect, etc. funding or grant contract agreement, guarantee, loan, scholarship, license, certification, accreditation, claim, or defense provided such benefit status or right does not arise for marriage. So what that says is that this bill, which requires state entities to recognize lawful marriages entered into other jurisdictions on the basis without regard to race, sex, sexual orientation. This bill can't be used to strip anyone of eligibility for any of these government benefits. Okay, so this bill cannot be a club or a weapon used to try to deny anyone access to any of these benefits.

weapon used to try to deny anyone access to any of these benefits. This is very important because previously there has been the argument that recognition of same-sex marriage would implicate the accreditation of religious schools, the tax exemption of religious schools. And then the other thing is that the bill says this sort of precatory language or a prefatory language that talks about, you know, sort of the goodwill of the people who disagree. This is really important because if you go back to the Bob Jones case where Bob Jones was stripped of its tax exemption for prohibiting interracial dating, for example, a tax-exempt organization has to be organized for a charitable purpose. And so what the IRS has to do is sort of find that this organization is not actually organized for a charitable purpose, but instead it has sort of an invidious purpose. It has a malicious purpose embedded within it. And if you have this language, and then you have the explicit protection of the

tax exemption, it becomes difficult to the point of impossible for the IRS to say with a straight face to a court that, well, we're going to hold that a religious institution that does not recognize same-sex marriage is the same as Bob Jones, or has not been organized around a charitable purpose. There are people who have also said, for example, that the act creates, quote, new tools, and I'm quoting from a World Magazine article, new tools for progressive activists in the Department of Justice to enforce an obligation to recognize same-sex marriages

on religious organizations that work closely with the government. No, not really, because the text actually only gives a right of action to the government for a person who's acting under color of state law. In other words, they have legal authority that denies full faith and credit to a marriage. So what this is doing is it's restraining the government. It's not restraining individuals, I mean, or private institutions. And so essentially what you have is an act that says, look, if Obergefell falls, then government institutions have to recognize same-sex marriages entered into lawfully in other jurisdictions. At the same time, the government can't use this act to diminish the religious liberty of any organization,

to remove accreditation, to remove tax exemptions, to remove eligibility for grants, and also include sort of bonus language that says, and we're not even saying you're a bad person if you disagree on same-sex marriage. That makes it really, really difficult for the IRS to come in and say, we're going to take tax exemptions because there's no charitable purpose served by these religious institutions which uphold traditional uh teachings uh we can put in the show notes a couple of pieces that i've written that have that have broken this down now does this mean that it's everything you would want religious liberty uh compromise to include no that's why you... Well, David, for instance, is there anything that would have prevented Jack Phillips from being... No. No. No, because, well, there's a couple of reasons. One,

could you draft a federal law that would protect Jack Phillips? And Jack Phillips, to be clear, faced reprisal from state authorities, Colorado authorities, not the federal government. Can you draft language that protects federal legislation that protects the religious liberty of private individuals from state interference? It's complicated, Sarah. It's complicated. The original Religious Freedom Restoration Act actually did protect state and federal, protect religious liberty from federal and state infringement. But that part that protected against state infringement was struck down. But then there was a new law called Religious Land Use and Institutionalized Persons Act, RELUPA, that does protect land use from state, religious land use from state involvement.

So there are actually, it gets complicated the more expansive the federal legislation designed to protect religious liberty from state infringement. It is still the case that the best protection for religious liberty against state infringement is the First Amendment. That's what is the core issue, was the core issue in the Jack Phillips case.

That's the core issue in the 303 Creative case. And could federal legislation be drafted that would help a Jack Phillips or a 303 Creative? Yes. Can you draft it in a way that's going to be clearly constitutional? Harder? Is this legislation, though, so it's no question this legislation doesn't protect a Jack Phillips, but what this legislation is designed to do. Does it make Jack Phillips worse off? No, not at all. Jack Phillips just stays the same. He just stays the same. He just stays the same. But it's something that protects private

institute, provides a degree of protection for private institutions against federal action. Federal action. I think that that's a very important, that's a very important clarification. It's a very important protection, but it's also a limited protection. So David, last thing, the comment section got a little spicy on our discussion about the alleged leak from Justice Alito related to the Hobby Lobby case. That sort of implication that that was evidence of what might have happened in the Dobbs leak. And wanted to know if you had any thoughts to address, maybe further marination on your end. For instance, the denial from the person who supposedly was at the dinner

and who told this guy about the outcome of the case and who was going to draft the opinion. It's not great. It's not the best denial I've ever heard. No. So to give the context again, the person who says they got the leak says that he wasn't there, but he heard from someone who had dinner with Justice Alito and she told him about, you know, how the case was going to come out and that she had been told that

by Justice Alito. The evidence he has for that is one, an email from her that says, hey, had an interesting conversation last night. Give me a call. No email. And then he has some emails and communication that he sent to his staff preparing for the outcome that they wanted in Hobby Lobby. wanted in Hobby Lobby. And so Justice Alito has denied it, but so has that source, the person who he says told him about all of this and the one who supposedly had the dinner in the first place, because this whole thing is kind of a game of telephone. Will you read her denial? Yes. In the interview, Mrs. Wright said that while she did not have her calendars from those days, she believed the night in question involved a dinner at the alito's home during which she fell ill she said that the justice drove her and her husband back to her hotel and that this might have been the news she wanted to share with mr shank that she couldn't put an email right like that's a lot that's pretty weird about that. Yeah. Yeah, that's actually weird.

Yeah. That's worse than no denial. Yeah. Okay. So I still think A, that most importantly, this has absolutely nothing to do with Dobbs. Like none. There's no link to it whatsoever in my mind.

Two, I'm sorry, but it just doesn't tell me much about what Justice alito actually said as we discussed at the time i can come up with a million things that justice alito could have said that that person then interpreted in a way they wanted to that then they wanted to sound in the know so they called their friend and played this gossip telephone game and or that that person then heard what they wanted to hear and started preparing for an outcome of the case that was helpful for them. Again, as someone who did communications, I often only prepared for one outcome of something or other because the other

outcome didn't matter. If we lost, then I didn't need to have anything prepared or vice versa. If we won, I didn't need to have anything prepared or vice versa. If we won, I didn't need to have anything prepared. And I'm reminded, David, of the announcement of the special counsel. If you looked at everything I did that day, you would see an email from me to the head of the Office of Legal Counsel saying, hey, something actually very similar. It's going to say something like, hey, need to hop on the phone. The implication being we can't do this over email. And then the next morning,

you're going to see all sorts of emails back and forth about the special counsel regs well before we ever announced the special counsel. And well before I knew there was going to be a special counsel. It turns out the DAG had just been working really late and wasn't like doing our usual evening meeting. And so I was trying to figure out

what are all the things that he could be working late on that would be important to me. The one I came up with was that he was thinking of appointing a special counsel. And so I prepared for that. It doesn't mean that that was definitely gonna happen or that I had any inside information actually that it was going to happen. I prepared for the thing that I, if that was it that I needed to prepare for. So again, you'd see exactly the same email. You'd see all this preparation. I could claim that I had inside

information about the special counsel before the DAG then told me, but I didn't. So that's all to say, I'm sorry, I live in this world. There's just not enough there there for me to think that they have the proof of a leak in Hobby Lobby. But even if Justice Alito winked and nodded at his dinner companion who then told someone and there was a real leak of the outcome, nothing implicates Dobbs to me whatsoever so I guess all in all I still don't care do you feel any

differently I don't feel any differently I mean is it possible that that the story is that Justice Alito did tell and now he's lying about it I mean look it's I, you know, look, I don't know Justice Alito personally. I don't know anyone involved in this personally, except Rob Shank. I know Rob Shank personally. And the interesting thing to me is, I don't know him to be an untruthful person. You know, I think, I don't know him to be. So I don't, the people communicating it,

but the person telling him, talking to him, I don't know anything about her at all. So is it entirely possible that she said it's Hobby Lobby and Kennedy's writing and Hobby Lobby, you know, Hobby Lobby is going to win and Kennedy's writing. Like I tend to believe Rob that that's what he heard. I certainly didn't hear inside information during that period of time. And I was not just what I wasn't even one degree removed from Rob at that time.

Okay. So, but it's still a game of telephone. Even if she said that it doesn't mean justice Alito told her. I mean, there's just all sorts of problems. And the last thing I'll say, the only comments that annoyed me slightly was this idea that like, this was us reverting to our right wing, whatever we always believe the conservative side,

like, I'm sorry. Part of the reason you listen to this podcast is because we don't always take whatever the politically convenient side is that we don't always take whatever the politically convenient side is that we may even agree with on policy, but not legally, et cetera. And so if you like it, when we break orthodoxy against conservatives, then we should have some built up credibility with you. When we happen to believe someone who is conservative, like we're not heroes when we break orthodoxy the way you want. And then we're just

partisan hacks when we're not, according to you, breaking that orthodoxy. So I don't know. I didn't like that. Assume good faith. Yeah. Yeah. I totally, totally agree with that. Totally. And look in my, in my view, I think one of the things that made me skeptical, and I'll say this again, is not Rob. I do not think Rob is lying. Okay. Let me just state that it's clearly and unequivocally. I've known Rob for years. I do not think Rob is lying. Here's my experience. Lots of people puff and exaggerate what their interactions with powerful people. Lots of people. That is a par for the course. And if I know nothing about the person who was interacting with Justice Alito and Justice Alito denies it, and I have a lot of experience with puffery, a lot of experience with puffery, I'm going to be skeptical. with puffery, a lot of experience with puffery, I'm going to be skeptical. I'm going to be skeptical. I'm sorry. I just am. And, and the, you know, the other thing about it is, Sarah, here's the best way to know that justice, that Hobby Lobby was going to win and Justice Kennedy

would likely be writing the majority opinion. Listen to the oral argument and understand that justice kennedy was a swing justice and very senior and he would likely be given the opinion yes or supreme court bingo there were like a million different ways to guess the outcome right and then what's her track record has she said this before has she been right every time i bet she's had other things like this and i bet she's been wrong some of the time. By the way, David, speaking of that, I am at a hundred percent for guessing the gender of people's babies. So either I'm a genius with like some sort of chicken sexing ability that like I, there is something that I'm looking at, but I couldn't really tell you what it is. Or it turns out that like flipping a coin

over and over again, you can get it right every time. I don't know. I'm probably at like 10, 10 coin flips that I've gotten right. And I just got one right today. So I felt like mentioning it. Phenomenal, phenomenal.

You must read Chicken and Trails better than anybody. I do. You know, have I told you the story of my uncle, the chicken sexer? No, that is one that has been missing. So it's important to understand there is like when chickens are born, you need to sex them because the female chickens are worth something. And basically the male chickens are sorry boys, but they have no external genitalia. There is no way to discern a female chick from a male chick, except that if you look over and over and over

again, like this is your Malcolm Gladwell, 10,000 hours, you will be able to tell the difference, but you won't be able to tell others how to tell the difference. Does that make sense? Yeah. Yeah. So my uncle was leaving the country during the Vietnam war and he got to the Canadian border. And so the story goes, um, they were like, okay, what job do you do? And he's like, well, I'm a theoretical physicist. And he like flips through his book and he's like, oh, I'm sorry. We've already filled all of our spots for theoretical physicists. What else? And he's like, well, I used to sell shoes at my dad's general store. Flips, flips, flips. Oh, I'm sorry. We've filled all of our shoe selling spots. He goes, how about this? Why

don't you tell me what jobs you have open? And the guy's like, oh, okay. So he flips through and finds chicken sexing. They had a chicken sexing job available. And my uncle said, I'm a great chicken sexer. And so on his immigration papers, that is in fact what it says. Amazing.

So maybe I've just inherited that non-existent skill that my uncle didn't actually have. Who knows? That's amazing. I love that story. Okay. Well, that's a great way to end a marathon podcast that listeners, you won't know

because Adam, our producer is a magician, featured multiple failures of my wireless internet modem. And by the way, I heard y'all speaking in exasperation about me. Oh no. When I went offline. So we're going to have a discussion about that on the conclusion of this podcast. But thank you so much for listening.

Please rate us. Please subscribe wherever you get your podcasts. And please check out thedispatch.com. And we'll be back Thursday with lots of Supreme Court material. Sorry, Adam. I clicked on the wrong opinion. Blah, blah, blah. Blah, blah, blah.

Uh-oh, we lost David again. Again? I didn't lose you. There you are. That's so weird. Uh, hello? Hello? Do you? Are you there?

Bizarre?