Advisory Opinions - Give Me Back That Ring, Cupcake

Episode Date: November 12, 2024

Sarah and David kick off the podcast with a discussion on the Vacancies Reform Act and its role in the next administration before turning to gender politics and a case related to a broken engagement. The Agenda: —Tennessee transgender rights case set for December —Rules of engagement —Defaming Project Veritas —First Amendment case on gender pronouns Advisory Opinions is a production of The Dispatch, a digital media company covering politics, policy, and culture from a non-partisan, conservative perspective. To access all of The Dispatch’s offerings—including Sarah’s Collision newsletter, weekly livestreams, and other members-only content—click here. Learn more about your ad choices. Visit megaphone.fm/adchoices

You ready? I was born ready. Welcome to Advisory Opinions. I'm Sarah Isger, that's David French. And David, let's do some freeform podcasting today. I like it. We have a bunch of things. They're a little random. Let's see where our heart takes us. I wanted to start with revisiting something

we talked about in the last pod, which is the Vagances Reform Act, because there's one piece that we didn't talk about. This was the conversation on someone who's either GS-15 or higher within the agency or Senate-confirmed filling a vacancy at the beginning of a new administration. And we talked about whether people who are Senate-confirmed but in an independent agency, a multi-member agency could do that even though the Vacancies Reform Act explicitly says it doesn't apply to multi-member boards and bodies.

But of course, to me, that means you can't use the Vacancies Reform Act to fill a vacancy on a multi-member board, which is different than using a member of a multi-member board to fill a vacancy on a multi-member board, which is different than using a member of a multi-member board to fill a vacancy somewhere else. But there's one other aspect to holding a position under the Vacancies Reform Act that we didn't talk about. You hold it by virtue of your current position, i.e. you wear two hats. So for instance, if you are currently

the Deputy Solicitor General, that's how you are acting attorney general. Right? You are deputy solicitor general and acting attorney general. You can't be an acting on your own. Right. So how can you be a member of an independent agency and also acting attorney general reporting to the president. And by virtue of that weirdness, that's not of course mentioned

in the Vacancy Reform Act, is it almost like a constitutional avoidance thing? Like that they would just say like, yeah, you can't be a multi-member board member and hold one of these acting positions because by virtue of then having to wear those two hats, that's weird. Well, you know, and I think it's important context here.

One of the reasons why we're talking about this is over the last few days, there's been unfolding a little Senate drama over how much of a rubber stamp is the Senate gonna be to Trump nominees. And so there's kind of this fight over, is the Senate going to be to Trump nominees? And so there's kind of this fight over is the Senate going to, it's going to have a what around a 54 seats, 54 Republicans. So you know they're going to be able to push through

nominees in the Republic, they're going to be able to push through particular judicial nominees. The question is the other nominees and how much of a rubber stamp will the Senate be and also what options does Trump have if the Senate says no to any given person? And so this is why this acting appointment issue is very live, very interesting, and it remains to be seen how it's going to work out. And really just those first few days of a Trump administration,

when you are filled with actings and what we call landing teams, the landing team are the people who sort of show up to get things in order and don't necessarily stay in government or hold those specific positions once the Senate confirmed folks arrive. David, there's another issue to talk about when it comes to those first few days of the Trump administration, and that is positions of the executive branch before the Supreme

Court. The biggest one, of course, is the United States v. Scrametti case. Question presented, whether Tennessee Senate Bill 1, which prohibits all medical treatments intended to allow a minor to identify with or live as a purported identity inconsistent with the minor's sex, or to treat purported discomfort or distress from a discordance between the minor's sex and asserted identity, violates the Equal Protection Clause of the Fourteenth Amendment. This is the Department of Justice that sued Tennessee arguing that this law violates the Equal Protection Clause. And David, we've certainly seen in the past when a new administration comes in that they not often, but in really big cases, reverse

the position of the previous administration and therefore reverse the government's position before the Supreme Court. What is interesting about this one is that it's being argued in December. And to reverse positions post-argument, I can't think of a time that that's happened. Listeners, feel free to raise one.

So that would leave a few possibilities. One, that they hold re-argument if the government switches position and simply allow an intervener party to come in and argue that position. Or two, that the Trump administration actually does not change positions on this case, rolling the dice, believing that, in fact, their sort of preferred outcome will prevail at the Supreme Court regardless and make good law regardless of the government's position. But I think they'll face a lot of pressure if they try to take that last position that somehow the Trump administration is taking a position against these types of state laws.

So that's one to watch. Oh, is that? That is absolutely one to watch, Sarah. I mean, it's fascinating because there would be standing of, say, parents to challenge this. So it is not as if the case goes away in the same way that the Title IX case would likely go away. So the Supreme Court had blocked implementation of Biden's Title IX rules, especially regarding

transgender issues. Well, those Title IX rules are just not going to be the Trump team Title IX rules. So it's easy to see how that case could just fall away. This case, however, comes to the court in a posture, again, as you said, filed by the United States. So if the United States no longer wants to prosecute this case or no longer wants to pursue this case, then they could drop it.

They could absolutely drop it. And I could easily see at oral argument, you know, at Justice Roberts, who doesn't necessarily always want to be jumping in with both feet into the culture wars, saying to Solicitor General Prilager that, hey, wait a minute, what are we doing here? Or the other, I guess one option would be for the court to just simply postpone the argument to say, we're going to punt this argument until February, and then that would give the Trump administration time

to decide. See, I feel like that's kind of inappropriate for the Supreme Court to pre-guess that an administration might want to switch positions, almost suggesting that they should. Yeah. I think you have to hold the argument in December. And then if the Trump administration switches positions, I guess I think the most likely outcome at that point is not re-argument, not allowing an intervener, and just digging the case, or dismissing the case,

and finding a different vehicle down the road. There'll be plenty. Now there will be plenty. I mean, as we said, these bans are not, it's not unique to Tennessee. The United States is not the only party who has standing to challenge these bans. So this is going to keep coming up until it's decided. You know, I do wonder if there's sort of a

Marvie Harper kind of element here, because Marvie Harper, remember, gutted the independent state legislature doctrine. But there was a strong argument before the case that it was mooted out by the actions at North Carolina prior to the case. And some of the dissenters were like, why are we even hearing this thing? So it is very interesting.

I'm very glad you highlighted that because it's an issue that's not going away, even though that case could go away. And so what do you do? What do you do? What do you do? I do you do? What do you do? Just wanted to highlight that one. I mean, obviously, we'll be covering the oral argument on that case in December, but lurking over the entire oral argument will be this question. So we'll, we'll re-up this entire conversation come December when we'll probably know who

the attorney general is incoming, and potentially even who the solicitor general could be incoming at that point. All right, David, a few circuit cases that we wanted to talk about. Should we start with engagement rings? We got to start with engagement rings. I mean, this is one of these fun topics that, okay, it's not super hot button, but I would imagine a lot of people at some point in their lives have asked this question. Hey, if I break off an engagement, what happens to the ring? And why would I say that some people have that idea, that question? This guy had that question. I had that question. I had that question. Many, many, many years ago, before I met Nancy, I broke off an engagement,

had given an engagement ring, and the question was, what happens to the ring? And well, now we have a Massachusetts Supreme Judicial Court ruling on a ring, Sarah, slightly more expensive than the one I was trying to recover years and years ago. I had a totally different picture of these two people when I read the facts of this case. One hundred percent. I figured out their age as I kept reading, reading the facts of this case and when I

looked up a picture. So should I just read the facts as stated? Yeah. The Massachusetts Supreme Court. And then I'll try to fill in some visual gaps for y'all. Yeah. In the summer of 2016, Johnson met Satino. The two started dating. Over the next year, they traveled together, visiting New York, Bar Harbor, the Virgin Islands, and Italy. Johnson paid for these vacations, expecting nothing in return. the Virgin Islands in Italy. Johnson paid for these vacations,

expecting nothing in return. Johnson also showered Satino with lavish gifts of jewelry, clothing, shoes, and handbags. It was customary for Johnson to give Satino the receipts for these gifts. They never answer a big question here that I have, David. Were they gift receipts, or was the price on the receipt?

I don't know. Yeah, the way it was reading to me is he was giving the receipts to sort of prove how much money he was spending. I know. Yeah. I know. Okay. So Johnson also helps Satino with certain medical expenses. For example, after Satino told him that she was considering dental implant surgery, Johnson agreed to

pay for the procedure, which consisted of two parts. That's going to be really relevant. He paid for the first part during which her upper teeth were extracted. Gosh, what on earth? Wait for it. OK. The couple started looking at engagement rings. Eventually, Johnson bought a $70,000 diamond engagement ring. He gave the receipt for the ring to Satino. Then he asked Satino's father for permission to marry her.

Later that month, he asked her, he presented her with the ring at a prearranged dinner at a restaurant in Cape Cod. Satino accepted the proposal and the ring. The happy couple was greeted by applause by fellow restaurant patrons. I have no idea why that line was included, but it's delightful nonetheless.

I liked the touch. This is a very vivid statement of fact. I really appreciate it. Soon, however, Johnson began to notice certain of Satino's behaviors that he found to be troubling. Satino, in his view, was becoming increasingly critical and unsupportive of him. She repeatedly called him a moron.

Morons in quotes. Yeah. Treated him like a child, complained about how he used his cellular telephone, and berated him over spilled drinks. It didn't say spilled milk, but I was curious. What drinks? What is this backstory behind these spilled drinks?

She did not accompany him to treatments when he was diagnosed with prostate cancer. If something went wrong, Satino blamed Johnson. When the couple quarreled, Satino would yell at Johnson and storm away on the few occasions that Johnson defended himself. Johnson also began to feel as though Satino did not appreciate his accomplishments. Satino, still Johnson did not consider canceling the planned nuptial.

Then one evening, following an argument, Satino made a comment to the effect that quote, she was a good looking woman and she could get a man whenever she wanted, end quote. Stormed off to bed, leaving her cellular phone behind. Troubled by Satino's statements, Johnson looked at Satino's cellular telephone and discovered a message from Satino to a man whom

Johnson did not know. The message stated, quote, my Bruce is going to be in Connecticut for three days. I need some playtime, end quote. His interest piqued. He continued to peruse Satino's cellular telephone. He found additional messages from the man, including one voicemail message in which the man referred to Satino as Cupcake

and lamented that the two did not see each other often enough. All right, that's going to be the end of the engagement. Yes. Johnson is going to break it off. He is going to sue her for the engagement ring back. This lawsuit is going to last six and a half years. Their relationship lasted just over one year. So that tells you so much about this.

Also, she's going to counter sue for the promised second portion of the dental surgery, because if you remember, he only paid for her teeth to be extracted. He did not pay and she cannot afford for the implants, which I guess at least she counter afford for the implants, which I guess, at least she counter sued for $43,000. Okay, so David vivid portrait painted and I think we're all picturing a certain type of couple. Yes. It's not a May December relationship, at least a December gold digger relationship, right?

at least a December gold digger relationship, right? I was totally picturing older wealthy guy, second like trophy wife type setup. Especially when you're talking about giant amounts of money being spent, handing over the receipts to like prove how much money, like, hi, look how rich I am. And then this message back to him, like, I'm a really good looking woman. I'm not going to lack for people.

Yeah, I had a picture. I had a picture, Sarah. Did you go Google this couple? I did, in fact, Google this couple. OK, so first of all, what I might not have even looked because I would have been so sure about who these people were in my head. Except that later on when she explains this guy who's calling her cupcake and that, you know,

she wants playtime with... Yeah. ...it says they've been friends for 40 years. And I'm like, well, wait a second. She's supposed to be 25 in my mind. So how can she have had a friend for 40 years? So, in the picture, I don't I'm not trying to be mean or disrespectful. I don't know what you were gauging her age as. And

in fact, reporters have asked and the lawyers for these folks will not disclose their age, etc. But I don't know. I'm going 60 David. She's 60. Yes. 6, 60, 59, yeah. Okay, she has glasses in this photo. She's wearing a very conservative high necked shirt with a sort of frumpy black sweater over it and a, you know, single cross necklace has sort of, this is, I'm going to say some things that are kind of mean now, but it's to help paint a picture. She has glasses, no makeup, sort of blonde-ish hair, but not dyed-ish blonde hair. Yeah, right, right. The sort of bang straight blonde hair to the shoulder that you would see on a 60-year-old

woman. Also, she is a school teacher. Yeah. This is just a, it's a much sadder story when you realize it's not some blonde bimbo. No, no, no, no. This is like an older than middle-aged couple just past middle-age. And when I heard Cupcake and Playtime, I had this whole picture. But yeah, so then the case goes up all the way to the Supreme Court of Massachusetts. And it's a really fascinating discussion of when do you have to give back the engagement ring?

And traditionally, there was this concept of a conditional gift. In other words, there's a gift that I'm giving you, but there has to be a condition fulfilled for the gift to be a permanent gift. And the condition here being the wedding. But there was a common law concept that said, wait a minute, you're gonna have to surrender the ring. If you have bought a ring and if you've given it to your fiance and the relationship breaks off,

you can't get the ring back unless you can establish fault on the part of the ex-fiancee, that it was her fault. And this is why you had all of these allegations, like the cupcake and the playtime and the calling him a moron and the spilled drinks and all of this stuff. So you had to pour out your relationship drama into your court pleadings because the traditional rule was unless I can show fault I can't get back the ring. And so what the court does here is basically

say wait that's old stuff that's outdated stuff because we don't ask you to show fault to get a divorce anymore. So, nope, this is just a pure conditional gift. Regardless of fault, even if I break off a relationship because I've found another cupcake somewhere else, then I still get the ring back. Really a very interesting case with discussions of stare decisis, but I found that outcome, A, fascinating, B, of course, consistent with sort of no fault divorce law,

but C, I also then found it interesting, if they're gonna go with the no fault stuff, why pour out all of the fault into the court opinion? These poor, this poor woman woman, she has for all time and posterity, you're going to get that one side of the story, right? Except that the lower court found that he was at fault for breaking up the relationship because she was able to prove that she wasn't unfaithful, that this was just a long time friend and they did not have a sexual relationship.

I found that whole thing sort of just by itself really fascinating because in my mind, David, you don't have to prove infidelity. You just have to suspect infidelity and her having some guy call her cupcake and say she wants playtime, to me, even without sexual infidelity is enough to break off an engagement. If you don't have trust anymore, it doesn't really matter whether in fact she was unfaithful. And the fact that then she just proves in court that she wasn't unfaithful after the

relationship has been broken off. I might feel differently if he already was satisfied that there was nothing possibly wrong, but no, no, no, we're talking years later at the trial, she proves that she wasn't unfaithful. And so then they find that it's his fault that he breaks up the relationship. I think that's why the Massachusetts Supreme Court

felt the need to kind of walk through some other things that might have been an issue here, like not going to his prostate cancer treatments. Oh, yeah. Yeah. So all of that, everything you said, Sarah, I agree with 100 percent, you know, because there was this other fact here. This is turning into a relationship discussion. We just use this as a pretext to get into this. We clearly wish we had a relationship advice pod. So here's what it was like as I was reading it. He's a longtime friend that the fiance didn't know about. Who calls her cupcake. Calls her cupcake. Yeah, right.

I mean, if somebody then says, oh, yeah, this person who calls me cupcake, and then there's this reference to playtime, and I've never heard of this person, and it's a totally platonic friend, trust me. I'm like, I don't think so. You know, under what circumstance if I describe that set of facts, does a normal human male go, oh, you've cleared it up. The secret platonic friend who uses like pet names for you. Why was I so suspicious? I mean, my bad. You're exactly right.

And after you had just said, I'm a beautiful woman, I can get any man I want. And then you're texting this dude about whether he wants playtime. Yeah. Again, I don't think it matters whether you ever consummated the relationship. That is grounds for breaking off. An engagement. But David, now we get to some law questions. OK, let's get to some.

You've explained. Oh, now you're going to make it boring, Sarah. You've explained about the fault aspects of this, that basically Massachusetts, and I think now the majority of jurisdictions, New York, Pennsylvania, I know we're on the list, they're not gonna look at fault. The person who purchased the ring gets the ring back. But that, like why?

And the answer is because also in a majority of districts, an engagement ring is considered a conditional gift. It's a gift upon the condition of getting married. But I got to be honest, David, I've never understood an engagement ring and why it's a conditional gift. The ring is the I want to marry you gift. Right. It's the gift for agreeing to marry you,

not to actually getting married. And so, and I have legal proof of this too, which is after you get married and then get divorced, guess what we consider the ring? Separate property because it was a gift received before the marriage. Interesting. Okay.

According to the conditional gift theory, it's only a consummated gift upon the marriage and therefore you like, it should be common property at that point, but you can't have it both ways. Okay. Okay. I have always from the guy's perspective been completely completely in on the idea this is a conditional gift. But- Let's break this down.

No, let's just stay on this for a second. But I was gonna say, your logic is very compelling because what this is is a sign of intent. That's right. Yes. Okay. Because otherwise you would have some people at least who would give the ring at the wedding itself, right? If it were a conditional gift, maybe sometimes you give it ahead of time,

sometimes you give it at the wedding because it's all about the marriage itself. But when you pop open the little box on one knee and say, will you marry me, the ring is an inducement to say yes to that question. Not... Aha! to say yes to that question, not. It's to say yes to the period, like let's be engaged and test me out as an actual husband because that's what an engagement period is. So you would say the conditional, let's imagine that,

let's imagine that I asked somebody to marry me and I slid the ring on their finger and I said, will you marry me? And they say no, but I got the ring on my finger. You would say that I get the ring back, but not if I slide the ring on the finger and they say yes because the actual condition has been fulfilled then which is saying yes to the engagement. But if I put the ring on and they say no to the engagement, is possession nine-tenths of the law there, Sarah?

It's not a possession issue for me. Okay. It's what the ring actually is. Because even if it's an inducement to say yes, I would argue. Yeah, okay, you're gonna lose me now. You're gonna lose me now. I think that I would argue that the gift

is to entice you to say yes to the question, but it's the gift first. It's like when a bower bird bills this whole bower to get a woman, a lady bird in this case, a lady bower bird. You know, he's showing her the house and is like, look at this amazing house, don't you like this house? Like that's what the ring is supposed to do.

It's like, look at what I, just the smallest inkling of what I might be able to provide you if you say yes to this question. It's the if, right? So you can put the ring on and be like, hmm, you know what? Nope, this is not enough of a like Bowerbird, you know, house dance situation, a bird of paradise doing their amazing dance.

You get, the bird of paradise is a better example, David. You do the whole dance. And then she's like, meh, I watched the dance and the dance isn't good enough. That's what I kind of think the ring is. I look at the ring, the ring is to me, it's the dance. And then I say, no, not good enough. I think I still get the ring though, just like I obviously get to keep the memory of the Bird of Paradise dance. Oh my gosh. No, no. Now this is a classic case of overreach, Sarah. You had me, you absolutely had me with,

okay, if I say yes, I have, you know, the condition for the actual gift, which is the engagement ring, not a wedding ring. I have- But if that gift upon her saying yes, it's a, this is the question, I guess. Is it a gift when she says yes, or is it a gift to induce her to say yes?

If you believe it's a gift after she says yes, as in you said yes and now I give you this gift, then I agree with your theory. But then why show the ring before when you're simply getting her to try to say yes? That to me is an inducement. No, so the ring is a symbol, not an inducement. Okay, so if I'm in a relationship with somebody

and I don't want the situation to be where they're on the fence until they see the size of the ring and you're like, oh, why didn't know he was really committed until it was instead of one carrot, it's two carrots. No, I see the ring. Then he should stay in the box. You then get on one knee, hold the box. You say, will you marry me?

She says yes, and then you pop open that box. Then I would totally be on board with your reading of it. But when you show her the ring first, in fact, in most videos that I've seen, it's open box, will you marry me? That's the order of operation. And I think that order is legally relevant. Oh, strong disagreement.

Strong, the box opens. This is the symbol, not the inducement, not the inducement. And if she says yes, then in your theory, the condition for the gift has been satisfied, which you kind of had me coming along here, kind of had me coming along here. And then, no, this idea that the ring itself is an inducement, I just think that's at odds with what it actually is. So what happened in your situation, David, where'd the ring end up?

I think the exact quote upon making a very, very, very polite request for its return was, I sold it and kept the money as compensation for the pain and suffering you put me through. And so that was the end of that conversation. That was the end of that. So yeah, That was the end of that. So yeah, did not pursue it. Under my theory, she was correct. Under either of my theories. Under either of your theories, you were correct. I'm much more sympathetic to your,

what we'll just call your primary theory. Your primary theory, yes. That's fair. Because of course, my other theory doesn't happen ever. I don't think I've ever heard of a situation where she takes the ring, puts it on, says no and then runs. I know. That's one of those situations where the kind of, that would be, if it ever went to court,

Sarah, that would be a bad woman stays in jail. I know. There'd be some unclean hands. Unclean hands. Unclean hands. Wait a minute, you took the ring and ran away. Said no and ran. No. Okay, but now David, let's take the law out of this

for a second. Not who's legally entitled to the ring, but who's morally entitled to the ring. And I think in your situation, which we don't need to get into all the facts of, but you got engaged under good faith. You believed you wanted to marry this woman. Then during the course of the engagement,

facts and realities came to light that made you question whether this would be a successful marriage. You broke off the engagement. And I think, David, you would say the fault for breaking off that engagement, if we were determining fault, lay with you, as it was your choice to break it off. I think the fault question should be basically like, it's a version of who broke off the

engagement, but the other person can't act in such bad faith just to have technically not been the one to break off the engagement. Whose choice was it? And in this case, it was your choice. Under those circumstances, I feel morally the other person gets to keep the ring. To me, it was more a matter of honor than law that, you know, like many relationships,

we were just not two people who should be married. And so it was sort of like the Titanic had already hit the iceberg, Sarah. Who was going to issue the order to abandon ship first? That was the question. Titanic already, the watertight doors were not holding. This thing was going down. And who was just going to issue the order to abandon ship first? And so that's why it never like the idea of like law

getting involved. This was a, this was an honor question, not a law question. But okay, let's take it out of your relationship. Do you think that the person who breaks off the engagement gets the ring back? I think it's a general matter, yes. Well, we're having a real gender divide here. This is identity politics is invaded. Yes. Well, we're having a real gender divide here.

This is identity politics. It's invaded. Hey, as a representative of men, give back the ring. You have no idea like how much, you know, if you're doing the like the three months salary thing, like you're talking about a major time slash monetary investment and yeah. Ladies, that's your ring. You do what you want with it. I've seen earrings, I've seen necklaces,

sell it for cash. This is, man, this is where identity politics works a real injustice, Sarah. All right, next case. But before I introduce the case, David, I've got a question for you. Yeah. You are a were a practicing First Amendment lawyer. I am in jail for tax evasion. You publicly say that I'm in jail for murder. Is that defamation? Yes.

Okay. Well, then I think we get to introduce this case. Do you want to introduce it? That was, yes, he explained. That's going to be what this case is sort of about. Yes, exactly, exactly. And maybe not murder, but like you're in jail for tax evasion, but someone says you're in jail for, let's say, assault, maybe not murder. Yeah, is it, the question is, is it defamation if you have been punished for something,

but then the media says you have been punished but for something else, and you subjectively believe that that something else is much worse than the thing you were actually punished for. So for example, if I was, say, in jail for armed robbery and CNN reported that I was in jail for jaywalking, that's not correct. But I have no damages there. There's no...

In fact, they've done me a favor. They've actually helped my reputation by false reporting. But in this, if you have a case where you actually are suffering a legal repercussion, is articulating the wrong reason for that legal repercussion, actionable defamation, that's the question. Okay. Introduce our facts of the case. This case is Project Veritas versus Cable News Network, Inc., which you might know better as CNN. So here are the basic facts. In February 2021, Twitter suspended Project Veritas, which the court describes as an investigative journalistic organization, most well known for its undercover reporting.

Its suspension made headlines on February 15th. Ana Cabrera and Brian Stelter of CNN discussed Twitter's ban of Veritas during the broadcast. This, the discussion of the ban is the basis for the lawsuit. So on air, Cabrera suggested that Twitter banned Veritas for promoting misinformation. Veritas disagreed with this characterization and demanded a correction,

contending that Twitter banned Veritas for violating Twitter's publication of private information or doxing policy. When CNN refused to issue a retraction, Veritas sued for defamation So the question here is if you were suspended for violating a privacy policy Do you have a defamation claim if someone was states that you were suspended for? Defamation I mean for for misinformation. for example, when the suspension initially happened,

Brian Fung, reporting for CNN Business, immediately reported that Twitter permanently banned Veritas and he accurately noted, as the court says, that the ban was for violating the platform's policies, prohibiting sharing or threats of sharing other people's private information. Four Days Cabrera tweeted from her own account saying that Twitter banned Veritas for repeated violations

of Twitter's policies prohibiting sharing or threats of sharing other people's private information without consent. Then you go a few days later and Cabrera and Stelter are talking about the ban on air. Cabrera then says, we're starting to see companies cracking down to try to stop the spread of the misinformation

and to hold some people who are spreading it accountable, Brian. For example, Twitter has suspended the account of Project Veritas, a conservative activist organization. At least that is how they couch themselves with followers. But this is part of a much broader crackdown, as we mentioned by social media giants that are promoting misinformation. And here with Stelter's response, yes, Project Veritas, a very

controversial conservative group got swept up in a Twitter policy by violating multiple rules on the site. And so the question is, is that defamation? And the 11th Circuit Court of Appeals said, essentially revived the lawsuit. This suit had been dismissed. Now the suit is revived. And so, yeah, the case is going back down for further proceedings. I liked some of the cases that was cited

that I was not aware of, David, called Guccioni the Hustler Magazine. Guccioni sued Hustler for defamation based on an article published in 1983 that stated, quote, Guccioni is married and also has a live-in girlfriend. Guccioni maintained that the statement was not accurate because the article, in using the present tense, accused him of committing adultery at the time of publication in 1983 when he had only committed adultery between 1966 and 1979.

For a mere 13 years. Okay. Man, I can totally see his grievance. The Second Circuit held that the statement was substantially true, focusing on the difference between being labeled an adulterer versus a former adulterer. The court observed that the article labeled Guccione an adulterer, and given the extremely

long duration of Guccione's adulterous conduct and his recent divorce, the statement was substantially true. The Second Circuit explained that the average reader would understand adulterer to include a man who unabashedly committed adultery for 13 of the last 17 years and whose adulterous behavior ended only because his wife ultimately divorced him. Therefore, because the truth was so near to the facts as published, that fine and shaded distinction had to be drawn to sustain a charge of libel, no legal harm was done. Interestingly, that was actually used to distinguish that case because there the Second Circuit was not using a sort of comparative harm, as in which one's worse? The former adulterer or the adulterer, they were saying like there was no difference and that it's only a question of the truth. And in this case, of course, there just was truth.

Yeah. That they were the same. But I did find this question interesting, David, that do you look at just whether the statement is true or false? Or do you look at whether the distinction between the two statements caused the harm? Those are slightly different questions.

And lots of jurisdictions do use the distinction between the two statements, between the truth and the false thing they said. Is that, did that cause the harm? Or is it just that the statement was false and now we go to trial? Right, yeah, that's a really good question. And I think in some ways what you're dealing with,

if the statement is false, but there's no harm at all, then you could win a liability judgment with zero damages. In other words, what are the damages from publishing a false statement that is actually not harmfully, that did not cause concrete financial harm by any meaningful measure. That is absolutely a key question in any defamation case

when you're getting to the damages element. But I think the actual defamation, the actual defamation when it comes to is it just that it is false? No, it's not just simply that it is false. And of course, we're dealing here with public figures. So then we got into the actual malice standard as well. But I think that what was interesting about this, so you had two individuals here. So you had Cabrera and you have Stelter.

Now, I see a big difference between these two, according to at least the facts as described in the opinion. Because in the opinion, it states that Cabrera tweeted something correct, but then four days later said something wrong, said something false. So here you have, she tweets from her own account saying that Twitter banned Veritas for repeated violations of Twitter's policies prohibiting the sharing or threats of sharing of other people's private information.

And then four days later says it's part of this crackdown on misinformation. So that's where you're going to get your sort of actual malice element satisfied. Because remember, actual malice, it doesn't actually mean I have malice in my heart. What it means is I knew the statement was false or I made it with reckless disregard for its truth or falsity. And if I've tweeted the truth and then four days later say something else. Then you've got a lot of evidence that. You've got a lot of evidence that you're of that actual malice

that you made the statement with knowledge that it was false. Stelter, it's different. Stelter responds. Yes, Project Veritas, a very controversial conservative group, swept up in a Twitter policy by violating multiple rules on site. And then Veritas General Counsel emails the CNN objecting to the misrepresentation and demanding a retraction and correction. So the Stelter comment to me is not, does it satisfy actual malice?

Because all of the, in real time, Stelter should not have all of CNN's reporting and all of Cabrera's tweeting imputed to him in the moment. He gave a vague statement, multiple policies, very vague statement. To me, that's not actionable defamation. Then we get into the demand for correction and no correction. That tilts it again in another direction.

So yeah, I agree with the ruling here in this case. And I think the two elements to me that really stand out are the tweet followed by an inaccurate statement and the demand for correction followed by no correction. So compare this to the Palin case against the New York Times and that time difference seems to make a huge difference, right? You personally tweeted something four days ago and then you personally are sitting on air saying something very different as evidence of actual malice versus the New York Times published an op-ed several years ago that you were probably aware of, but now a whole bunch of time has passed. You didn't write it yourself. Can that then be used as evidence of actual malice? And then you also, in the Times case, issued a correction.

Yeah, so I will admit that I was coming at this from someone who is on TV pretty frequently and hosts will often, often's the wrong word. See, here I'm defaming hosts right now. Hosts will sometimes- With actual malice. Hosts will sometimes say something that I know isn't accurate. And then I'm in a weird position.

Because do I correct that person on air? Or do I just say something like what Brian Stelter said, which is, you know, you know it's what I always do. Yeah. Yes, there are multiple things at issue because I figure like as long as I'm not specifically like repeating what they said, and then I move on to the thing that I know to be true.

Because also in the moment, you don't know whether they are right or wrong. Like you're like, ooh, that's not how I read it. Maybe I missed it. I don't know. You obviously can't go back and look. There was something about the Supreme Court and I'm on with a host who is not. This isn't a legal show. And I think, you know, she said something, I'll use a, this is not the real example, but you know, it was like, Justice Kavanaugh wrote the six three opinion for the court. I'm sitting there going like, ooh,

it was actually Gorsuch and it was five four, something like that. Right. And so I just said, you know, the Supreme Court has had more divided cases this year than last year, as you noted. So like I did agree with her. Yes. But like I knew it to be wrong also, but I didn't repeat it for listeners.

Anyway, that's not interesting to anyone listening to this, except I sort of felt for Brian Stelzer in this situation. 100%. Yeah, 100% because I've been in that situation as well, Sarah. Now there are some times when things are set and I just know 1 billion percent this is wrong, but I also have like four minutes on air.

So, you know, I remember one time I was described as a former chaplain in the army rather than a JAG officer. And in the moment I made the decision not to correct that and just went into the discussion. You know? Yeah, you have limited time. Maybe you're sure, maybe you're not. The last thing you want to do is be really sure and then it turns out you're wrong. And like, maybe it's not the point.

I don't know. Yeah. And my instinct when I hear somebody say something that I think is wrong, but now the chaplain thing, obviously, I knew I wasn't a chaplain, right? But even in something where I feel pretty darn confident that I'm right, when I hear a host who's looking at the issue, been prepped by producers, very smart person, the first instinct I have when I hear something like that is not, oh, they're completely wrong. It is, oh, am I maybe wrong about this? And so you immediately retreat to hedge language. So for me, the Stelter situation was like, that's hedge language.

That's not actual malice. That's clearly hedge. Multiple reasons. Because he wouldn't say multiple reasons if he didn't know that at least one of the reasons was on the doxing part of this. Because otherwise, she only said one reason. So when he then says multiple reasons, that's how you know it's hedge language. He's not going to cite the specific, and he clearly knows at least one other thing,

but he's now unsure if maybe they cited two reasons and he just missed it. The correcting thing, David, is, I think, where the rubber hits the road. Yes, completely agree. You tweeted it, therefore you knew it was false. And things happen on live TV, but you refuse to correct it. And instead we're going to stick by the thing that you knew was false. I actually thought this was going to be a pretty difficult case for

Project Veritas to actually win when it goes back to trial until I got to that part. And I think that is tough because I think then you've checked the actual malice box. You're presented with all the information that you knew it was false. You said, like you knew at one point what the truth was. You said something different on TV. When that inconsistency that you yourself have made was pointed out,

you decided to stick with the thing that isn't true? Yeah, it's the one, two, three. It's the tweet. It's the second statement that's false, which, okay, just reading it most charitably, maybe you forgot, you know, who knows? But then you have the request for correction and it's not answered. And I, you know, here's the thing, Sarah.

I'm very interested as to why there was no correction. Very interested in that. interested as to why there was no correction. Very interested in that. Because one of the things that I sometimes worry about in this world is when people have categorized an institution or an organization or individuals in their minds as they are the bad guys, that you are less responsive the bad guys, that you are less responsive to the bad guys, right? So if you have decided that they're part of the problem, that they are, they operate in bad faith, they're a malicious organization, whatever subjective judgment you've made, or even if it's like based on some real evidence that this is, these folks are bad actors, that these folks are bad actors. You still owe them the truth.

You still owe them the truth. And you see this often in the First Amendment context. This isn't a First Amendment case, it's defamation case, but you see this often in the First Amendment context where once an institutional organization has decided that somebody is a bad actor, they will do zilch, nothing nada to proactively protect their rights or to proactively correct mistakes. They just sort of have this bad people stay silent point of view.

But that's just not the First Amendment. And sometimes flipping this around in the defamation context, bad people don't deserve a correction. Bad people don't deserve the truth. That's no way to run a railroad in a media organization. All right, last case. The Sixth Circuit has decided to take a case on Bonk that we had touched upon briefly, David,

and this might actually be interesting enough for us to cover the oral argument when it happens. I agree, yeah. Do you want to introduce the case? Yeah. So this is a case involving, it's a pre-enforcement challenge to a policy prohibiting use of, well, a policy requiring use of preferred pronouns. And so the question then is, can you have an anti-harassment policy that's going to prohibit or require the use of preferred

pronouns? And so the lower court had said, and in the Sixth Circuit, let me say the three-judge panel of the Sixth Circuit, had said that this pre-enforcement challenge is going to fail and is going to fail on it for a couple of reasons. One of them is, look, you know, if you're talking about an anti-arrasment measure, if you're talking about tinker and material disruption to the educational environment, well there's evidence that even the plaintiffs have acknowledged that use of biological pronouns instead of preferred pronouns causes an enormous amount or a large amount of emotional distress to students that can be disruptive to the educational environment. So the Tinker analysis would apply here and to protect the students from,

I'll just use the term biological pronouns instead of preferred pronouns. And so then the other argument was that the Sixth Circuit panel rejected was that this was compelled speech. When they said, no, not actually compelled speech because there's other ways of talking, which include, may permissibly use no pronouns at all or refer to classmates using first name. So there are ways around the requirement to use preferred pronouns that would allow you to just not use pronouns at all. And so very interesting argument

and the, I mean, very interesting case. The Third Circuit, as we said, the three judge panel had rejected the plaintiff's case. Now this full circuit is taking it. It's going to go en banc. And my best guess there is they did not take this en banc to put an exclamation point at the end of the original ruling. My thought is they took this case to say, you know, requiring

use of preferred pronouns is going to be constitutionally problematic and anticipatory injuries are not going to be enough to allow the substantial disruption element of Tinker to come into play. And on that panel, it was Judge Strontz writing with Judge Davis joining, and then Judge Batchelder dissenting. I wanted to read one paragraph from her dissenting opinion, because I will say, Judge Batchelder

has a wonderful reputation as a brilliant judge, but not normally as a spicy judge, but I found this paragraph,fully spicy bachelors. The majority proceeds from this premise as well, concluding that there is no compelled speech because students are not compelled to use preferred pronouns. They can comply by avoiding the use of otherwise ordinary and commonplace biological pronouns and by instead referring to these particular classmates by name only, using no pronouns at all. Obviously, this awkward adjustment of using no pronouns requires

the speaker to recognize and accept that gender transition is a real thing and that it applies to these particular students. The majority also concludes that there is no viewpoint problem here because the district has expressed no view about whether gender transition is good or bad and the students remain free to discuss or debate it. Just footnote here, David, I will say I found that upon first reading, you know, through the majority opinion first, I was like, oh, they do have a good point here. It's not they're not taking a view on gender transition, actually. Okay. Here's what Judge Batchelder said.

That is like saying the school has taken no viewpoint on ghosts when it has students debate whether ghosts are good or evil. But the plaintiff's point would be that there is no such thing as ghosts! Exclamation point. And the school has no business forcing children to believe in ghosts! Again, whether you agree or disagree, PDE's position is that gender transition is fictitious, just in ghosts. Again, whether you agree or disagree, PDE's position is that gender transition is fictitious, just like ghosts. I thought that did a pretty good job

of providing a metaphor to explain why a viewpoint neutral rule like this doesn't really work in this context when you're forcing the student to speak. Regardless of viewpoint, the compelled speech is a separate doctrine, really, from a viewpoint neutrality factor analysis. You're compelling them to say something they don't think is real. Whether you think it's good or bad, it doesn't matter. You're still compelling them to speak. Well, and I also want to talk about this case in the context of, okay, like, wait a minute here, because the issue is not,

are trans students now vulnerable to harassment? Okay, so that is not the issue because harassment is not hearing words you don't wanna hear. Okay, that is not the definition of harassment. And so this often happens in the anti-harassment context where schools who do have legal obligations to protect students against harassment

will often write very broad prophylactic rules that are designed to prevent the possibility of harassment. And when you read these very broad prophylactic rules, this is the origin of college speech codes, for example. They're wanting to prohibit any language that can get within shouting distance of harassment. So they're writing these rules that don't just prohibit harassment, they prohibit a lot more than harassment. Well, the First Amendment doesn't permit that.

And so the question here is, really, truly, is the use of biological pronouns harassment full stop? Is the just the use of biological pronouns harassment? And the answer to that, I don't think can be yes, consistent with the First Amendment, because that would essentially be saying that these words, that the use of these words by themselves, just the use of the words by themselves, constitute harassment. And that's very substantially changing the definition of harassment, which requires severe and pervasive conduct that is so severe, it's conduct that is so severe and pervasive that it prevents somebody

from receiving the benefit of the educational program. That's what harassment is, is not hearing things you don't like on occasion. That is not harassment. Even things you don't like that go to core identity issues. That's not what harassment is. And so I very hard for me to see this policy surviving on Bonk review. Okay.

But David, let me reframe this rule as a rule that you are not allowed to call someone by pronouns that they don't want to be called by. And then let me ask why schools can ban someone from using the N-word, or can they? Well, that's it. You know, we had that interesting Title VII case recently, whether a single use of the N-word can constitute hostile environment harassment. And in like, imagine a school that just has a blanket rule. this is a word you cannot use at this school. And then imagine a, I think I know your answer to this one, but imagine a rule that said,

you cannot call someone that word who does not want to be called that word by you. So that rule would mean that, for instance, black students could use that word if they gave permission to other black students to use that word, but gave permission to other black students to use that word, but the white students couldn't. Well, you know, interestingly, as part of harassment anti harassment law, one of the elements is it the speech or conduct has to be unwelcome.

In other words, so there's already an element to harassment that says, the conduct has to be subjectively unwelcome and then objectively unreasonable. So in other words, if you have a, let's just take it out of the racism context or let's keep it in that context. If you have two students quoting rap lyrics back and forth to each other, for example, that's not unwelcome,

even if the language is really over the top, right? So the unwelcome is part of the element of the hostile environment harassment. So in that circumstance, in all harassment cases, the unwelcome is an element. Now, the interesting question then becomes, can I just presume unwelcome this and ban a word? Yeah, could the school have that rule or could I sue the school as a student for violating my First Amendment rights to say a word? So I do not think the school can presumptively ban a word. I do think that if you have a black student who is saying, Johnny is saying the N-word

to me, the school can absolutely intervene at that moment and tell Johnny, you have to stop. And in fact, there's going to be legal obligations to then at that point intervene. You are telling a student, you are calling a student by the N word. You're going to have to stop that. That's absolutely within the school's purview. But to just simply ban the word under the presumption that in all circumstances it constitutes harassment. I just don't see how the law can support that. Well, David, this has been a treat of a little podcast.

Yes, yes. I mean, I gotta say that the engagement ring discussion, that's why you come to advisory opinions. I mean, I'm so curious about people's three, what they view of the three versions, right? The engagement ring is a conditional gift, the engagement ring is simply the gift upon saying yes to the engagement itself, or the engagement ring is an inducement, and you get the ring regardless of your answer to the question.

And all I'm gonna say is I know my guys, the guys listening are with me. Okay, I know my guys are listening, but I'm just a special appeal to the female listeners of Advisory Opinions. Reject Sarah Iskher's identity politics. And look at the objective fairness of the situation. All right, we'll talk to you guys next time

on Advisory Opinions and maybe read some of the best comments about that conversation. Ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh,