Advisory Opinions - Horseshoe Theory

Episode Date: December 13, 2019

David and Sarah offer a quick take on the British electoral landslide, revisit the IG report, give two cheers to Trump's anti-Semitism executive order, and then discuss the virtue-signaling side of the conservative porn wars. Learn more about your ad choices. Visit megaphone.fm/adchoices

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A day of sunshine? No. A box of fine wines? Yes. Uber Eats can definitely get you that. Get almost, almost anything delivered with Uber Eats. Order now. Alcohol and select markets. Product availability may vary by Regency app for details. Welcome to the second Advisory Opinions podcast. This is David French with Sarah Isger, and I'm pleased to report this time I am not recording from the inside of a gymnasium-sized bathroom.

Or at least that's what it sounded like when I listened back to the recording last time. This time I'm actually recording from the Dispatch Franklin, Tennessee office's NBA room, Sarah. You should see it. It's got a life-size poster of Magic Johnson battling Larry Bird for a rebound. It's got a fat, huge- Impressive, but showing your age. Yeah. Well, yeah, showing my age. Sorry. And it also has a huge picture of Kobe. Look, I'm multi-generational. I've got Larry and Magic. I've got Kobe. I would have Akeem Olajuwon.. I would have Akeem Olajuwon.

You'd have, oh yeah. I'm of the Akeem Olajuwon generation. But are we, are we both Gen X just on different ends of Generation X? No, I am the oldest millennial. Oh, okay. I think I'm bordering on like the oldest Generation X. So. Also, even if I weren't, I would totally deny ever being part of Gen X. So like, I judge y'all pretty harshly. That's so unfair. Although my generation did kill. It's pretty bad when you'd rather be a millennial.

My generation, in fairness, did kill the greatest form of music ever to hit the pop culture scene, which was the hairband era. Oh, God, yeah. Yeah, yeah. We killed it with grunge, which is just a tragedy. I don't know. I had the Eddie Vedder Pearl Jam, that little knife necklace he had in junior high. I was so alternative, you know?

That's outstanding. Well, we're not going to talk about grunge today. We're going to talk about several things, lots on the plate. So we had a Brexit result, not a Brexit, a British election result, which was kind of like confirming Brexit yesterday. We've had more time to think about the Inspector General report. There was a extremely controversial Trump administration executive order about anti-Semitism. And then we're going to wind up with talking a little bit about the, if you follow conservative Twitter at all, the conservative porn wars. And we're going to pack that into slightly less than an hour. So let's just start, Sarah, with the hot takes on the British election result last night. So this is perfectly translatable into American politics, right? Oh, I just love,

I mean, it's great when Twitter is an expert on everything, like Twitter's an expert on missing planes, Twitter's an expert on shark attacks, and today Twitter's an expert on the British electoral system. So I worked in the House of Commons in, what year was it? 2002. And first of all, I have no hot takes on today's election because, for instance, saying you worked in American politics for several months back in 2002 would be pretty irrelevant to today. My experience is totally irrelevant, except for

the fact that you're so immediately struck by how much it does not map onto our system whatsoever. Their elections don't map onto ours in terms of how they're won, how they're campaigned, how they're conducted. I actually wrote my thesis on the Americanization of British campaign communication, but part of why you could do that is because they're pretty different. And so while they were adopting some of our techniques, you're still trying to map it onto a totally different parliamentary system. And second, the issues don't map onto ours neatly at all. This is not And second, the issues don't map onto ours neatly at all. This is not, you know, Republicans and Democrats light or something totally different.

So I think, you know, Joe Biden had a statement out today that this is what happens when you move too far left. And then I've seen others on Twitter, you know, pointing out that Boris Johnson was for all of these things that would be traditionally actually part of the Democratic Party over here. Yeah, all that's true or not. Stop, stop trying to make fetch happen with the British elections on our system. Yeah, you know, Jonathan Chait had, he had apparently just ready to go with the post, dunking on a whole bunch of people who had predicted and who had been arguing for years that Corbyn was demonstrating the future for Democrats, that he was paving the way for Democrats. A lot of those written right after the 2017 election where Corbyn did a lot better and the Labor Party did a lot better than expected. And you didn't see too many of those hot takes today. And you didn't see too many of those hot takes today. I do think that here, can we get about as basic and rudimentary as humanly possible and still call it analysis? Are we going to go into British common law?

Because you know how I love that. No, no, no. No. Like, how about this? How about this? This is the kind of content that we want you to subscribe to the dispatch to receive. Candidates matter. How about that? Yes.

Okay. Yeah, you know, I think it was interesting. I looked at some exit polling, and it showed of all of the various subcategories of British voters, all but one of the subcategories listed it as their top reason for voting that Jeremy Corbyn not become prime minister. And that actually probably does have some parallels in the American 2016 election. Right, right. Yeah, yeah, absolutely. Absolutely. I think even the people, if you went back in 2016 and looked at, and you can correct me if I'm wrong in this, if you looked at the subset of voters, which was really large, who did not like Donald Trump and did not like Hillary Clinton, the large majority of those vote broke for Donald Trump. Two to one, so that demonstrating that this was absolutely a change election. And if they were going to vote to keep somebody out of the Oval Office, that somebody was going to be Hillary Clinton. So congratulations to the British people on another victory for democracy or something.

Well, I would say congratulations to them on not having a socialist anti-Semite as prime minister of one of the greatest civilizations on the face of the earth. That's the main takeaway I took from it. I had from across the pond in a very sort of ignorant but national sovereignty kind of way supported Brexit. But I also from across the pond was looking at this rise of anti-Semitism in the Labor Party with a lot of shock and horror. And hopefully, hopefully a defeat this large, I think it's what Labor's worth showing since around 1935, will cause them to rethink at least some of their path. I mean, some of the polling was saying that 87% of British Jews perceive the Labor Party as anti-Semitic. I mean, this is, and there had been internal investigations of the Labor Party that demonstrated a shocking level of acceptance and endorsement of

outright anti-Semitism. I mean, it was really stunning. So to the extent I had a real rooting interest in it. I saw one write-up that had, you know, going back to when I was born, basically, of, you know, things Jeremy Corbyn and the Labor Party have done that could be construed as anti-Semitic. But, you know, that, after I said, like, there's nothing to map onto the American system. Now I keep saying, well, that kind of maps on. Rise of anti-Semitism across clearly Britain, some in Europe, I think, but also the United States. Like our numbers bear that out as well. We are getting to that later in our conversation, we are. Absolutely. Absolutely. Well, that's the, you know, the dispatch, we try to foster a non hot take culture. So that's our non hot, but quick take on the British election. But let's move on. I have one British hot take, which is their bread is so much better than ours. I mean, the pastries are better, the bread is better, the tea is better. You just you've never had a cucumber sandwich until you've had it in London. Well, you know, can I, can I confess as to what a limited world traveler I am? I have spent a grand total of two nights in the United Kingdom in my entire life. Just two nights. Oh, what a shame. You're missing out on what the world calls the worst food but i just have a real soft spot in my

heart for well my daughter my oldest daughter spent the summer uh she goes the university of tennessee at a study abroad program at oxford and she came away actually liking british food and as a somewhat of an amateur expert on british politics. So I drew heavily on my 20-year-old for this scintillating analysis earlier in the podcast. All right. What's next? I'm particularly curious because, again, for those who didn't listen to the first podcast, Sarah, former spokesperson for the Department of Justice at Ground Zero for a lot of the events in the run-up to the Mueller investigation, was present in the DOJ for the vast bulk of the Mueller investigation, has real insight into this process and into the Russia investigation. And so I was really curious if after, you know, four more days of public commentary,

what were your thoughts on the IG report on reflection? And what were your thoughts on the reaction to the IG report on reflection? So I do love marinating in IG reports, you know, like I, if you just imagine, yeah. So I think upon some more time, just me and the IG report hanging out long walks on the beach, the politics matter so much today and so little big picture at all. You know, we talked about how both sides claimed victory. And the more I thought through it, gosh, the more I thought none of that will matter in two more days. Right. Because we'll move on to some other outrage.

And what will matter is, frankly, the IG's FISA investigation that he's doing now to see whether these errors applied to all the whole FISA process. And also, and I had this conversation with another former senior DOJ person a couple nights ago at dinner. Can you imagine being a FISA judge and reading this and how that's going to affect the next time a DOJ attorney walks in with a FISA application to you. You're both going to have a lot more questions for that attorney, but also are you going to trust the answers? And even if that attorney says, you know, your honor, I swear this is the information that I've been given. Like, well, do you have the right information?

Right. Mr. DOJ attorney? So I think this has far lasting consequences to the FISA process and to the judicial process involved with FISA. And then of course, there's the culture at the FBI problem where I just think Chris Wray, I think he's the right guy for the job, but what a hard job it is to get FBI agents not to let political considerations influence law enforcement decisions, but at the same time to be accountable to political appointees and to embrace where there's contradiction there and yet, you know, be able to fight through it. And that's not something that you can just call everyone into the gymnasium and explain really easily where that line is. You know, one thing that I think struck me, because there's going to be another report, or there's going to be another phase to all of this before we put to bed the entire

Trump-Russia, Hillary Clinton-Russia deal. We're never putting it to bed, ever. Trump-Russia, Hillary Clinton-Russia. We're never putting it to bed, ever. Well, yeah. I guess there's one more big official act, and that's going to be the Durham report, or whatever Durham. I love how Trump called him Bull Durham in a rally. Yeah, it's great.

I'm sure it's fun. Have you seen him, too? He's got the good beardy mustache thing going on. Oh, he does. Yeah, no, Google John Durham. And if you want to feel confident about your 1876 sheriff, like John Durham would have been great at that. Yeah, he looks actually like the stereotypical small town Southern trial lawyer. Yeah, and he's not at all, but yeah.

small-town Southern trial lawyer. Yeah, and he's not at all, but yeah. I can totally see him in a seersucker suit in July in a courtroom in Mississippi. So we're going to have that. The two Utes. Exactly. So we're going to have that. What? Prytel is a Ute. But you have to say it with that thick, syrupy Alabama accent. Might be some cultural appropriation if I try to do that. So we're going to have that. And I think that, so here's what I wonder. So we had the inspector general who sort of said, I didn't see any political bias. In the opening of the investigation. in the opening testimony was very interesting because he really emphasized that.

And in fact, when he was asked, have you seen any political bias in re-upping the FISA, something we discussed, he actually did have an answer to that, which was, you know, I can't speak to that, basically, is what he said. But he definitely left open the possibility that, you know, he just, you can't get inside someone's head at that point or something or other, you know, in the point that all of the errors seem to go one way, all 17 errors. I do think that's a law enforcement hammer and nail issue, or at least easily explained as a law enforcement hammer and nail issue as easily as it's explained as political bias. But nevertheless, there you are, 17 errors

all going one direction. Right, exactly. And I think that's the distinction you carved out in the first podcast that was borne out in the testimony. And one thing that struck me in that was it's as if he took a look at what happened. And I think that you could, you could, the most reasonable explanation for all of the mistakes in the re-up is bias of some sort. And the question then is, is it political bias or is it the kind of bias that, that we talked about last time, which is, I think we've got our man bias. That this is the bias that happens, infects law enforcement all the time. We're surveilling someone guilty. We don't have it yet, but we're going to get it. And we just have to make sure we keep surveilling him until we get it. So that's a possibility. But I think the political bias point has also got to be a

possibility as well. I think on the inception of the investigation, that's the point where if Durham, that's the point where I think most people are going to be interested to see if Durham contradicts the inspector general. And I think the inspector general's conclusion there wasn't so much there was no bias. It's just that I didn't see the evidence of bias, which is a different kind of thing. It's just that I didn't see the evidence of bias, which is a different kind of thing. It is. And but I will say it's also the the system that we have. I don't want him conjecturing whether. Well, despite having no evidence of bias, I feel like there was. Yeah, exactly. Exactly. Yeah, that's exactly right. You I Durham has evidence, great, let's see it. But I also don't want to hear that from Durham.

And what the inspector general testified to was that Durham presented something about his findings to the IG, and it did not change the IG's mind, is what the IG testified to. Durham obviously disagrees. Barr, it appears, disagrees. So, yeah, to your point, and we're back to waiting. Exactly. We're back to waiting. So here's my bottom line on Durham in relation to the IG report. If Durham comes forward with no real material evidence that's different from the IG report but interprets it differently, I'm much less interested in that than I am in whether he comes forward with materially different evidence that betrays bias. And one of the first things I can

think about is the area that we talked about as being redacted in the IG report, which is this additional details about Mifsud. But I don't think it's Mifsud, because I think that if the IG had known about Mifsud, he would have said something about it. But that's my bottom line. I think it's also relevant to point out that this isn't just a redo of the IG report. Durham does have a different mandate, A, but also B, different abilities than the IG. So he can go into the other national security alphabets, CIA, ODNI, et cetera, to look for things that the IG is limited. He really can only IG himself within DOJ. Former DOJ employees are not really under his purview in the same way.

Non-DOJ employees are not under his purview. So it is, you know, Durham has other stuff that he could be bringing. But to your point, we will wait and see. But it would need to be something like that. Yeah, exactly. Exactly. All right. Well, let's move on to topic three, because we've got a lot we got a lot to cover. And this was interesting this was a new york times fail that sort of lit the uh lit twitter on fire for a while where when you actually looked at the law what was happening was both less in one way and more than meets the eye and this is the new york times wrote a um had a reported piece that on i believe it was Tuesday, where they said that Trump was reclassified.

And Jeremy Peters on the byline, two respected reporters. These aren't, you know, dum-dums. Right, right. And it said that Trump was going to reclassify Judaism as a nationality for purposes of federal anti-discrimination law, specifically Title VI of the Civil Rights Act of 1964. He was going to reclassify Judaism as a nationality in accordance to allow federal, to allow the Department of Education, for example, because Title VI deals with education, to respond to growing incidents of anti-Semitism on campus. And also that they were going to use a definition of anti-Semitism drawn from the State Department, which has taken a definition from the International Holocaust Remembrance Alliance, IHRA, that had free speech problems.

And so Twitter kind of erupted on two counts. One saying, well, wait a minute, if you're calling Judaism a separate nationality, isn't that fostering an anti-Semitic trope? Isn't that playing into anti-Semitism, which often accuses Jews of having dual loyalty? And oh, by the way, being a Jew is not being the same as being Israeli. Israeli is a nationality. Judaism is a religion. And then it also raised free speech concerns because some of the definitions in the IHRA guidelines included expressions of ideas that, although quite vile, happen to be protected by the United States Constitution. There is no sort of category of hate speech that is carved out from the Constitution.

There's no category of anti-Semitic speech that's carved out from the Constitution. And so you sort of had this twin rebellion on Twitter that got very angry until the next morning when the actual draft. What? Something on Twitter got angry? Yeah, it got angry. There were hot takes there, Sarah. This might come as a surprise. Oh, you know how I hate the hot takes.

And so then the actual executive order, the draft of the executive order comes out, and that sound you should have heard was the collective exhale as everyone realized that they had been wrong for 12 hours. It's not quite what happened. But the basic bottom line is that what the Trump administration did was promulgate an executive order that essentially put into place the core of what were Obama-era guidances regarding Title VI. And essentially, it's this, that Judaism is a religion, yes, but it's also perceived as an ethnic identity. It's also perceived as a ethnic identity. It's also perceived as a as as an immutable characteristic and that a lot of anti-Semitism. Let me let me jump in.

If you have done any of those genetic testing, you know, things for Christmas, you got your parents, whatever, to figure out what your origin is. My family is doing is in the craze last year and this year I have not done it. But one of the ethnicities that you will get back in my family is 99 percent Ashkenazi Jew. That's not because we're religiously Jewish. I mean, some of my family is, but, uh, that it can't, you know, test your blood to determine whether you're Catholic. Maybe it can, but it, but it won't tell you that. Um, but it can't if you're Jewish. And so, uh, I think this is where I, I, I read the New York times story and I have to say, I read it and was like, well, yeah, that makes about sense. And then I get onto Twitter and they're like, you're saying Jews aren't American. And I was like, what? No, it's an ethnicity. It's always been. I have this very, can I tell my high school? I have many

high school sob stories, but this is a good one. This is your space. After I've done my junior high Eddie Vedder thing. So then we move up to high school. Obviously I'm getting much cooler. And my personality is pretty much the same in which I just say everything I'm thinking all the time. There's not a great filter. So I have a huge crush on this boy in my high school. And we're spending a lot of time together. We're hanging out. But nothing's happening.

He's not asking me out, making no moves, whatever. This is back when you used to actually go on dates and stuff. That was not happening um so i of course in my 16 year old self was like why aren't we dating and his response was um you uh you look too jewish like you I can't date you. That would, that would not be acceptable to my family. You look like a Jew. Um, and I, you know, let's not beat up on the 16 year old kid who didn't know better and whatever else that isn't my point at all. But only that, again, you don't say that about Baptist, you look too Baptisty. So I was, I was, I just have to like have my little moment to say I was

bewildered by the Twitter outrage, except that it's Twitter and you should never be bewildered by Twitter outrage because it's the only mode that Twitter has. Yeah. Well, yeah, that's exactly right. Well, I put it in my newsletter. You will often hear someone say, I'm an atheist Jew. my newsletter, you will often hear someone say, I'm an atheist Jew. You will never hear someone say, I'm an atheist Baptist. I mean, that's an oxymoron. And so everyone kind of went crazy about this. And then you started to dig a little bit into the law. And what did you find? Well, let's see. So you found in, I believe it was 1987, there was a unanimous Supreme Court case interpreting a different statute. This was section 1982, 42 USC section 1982. For those who need code citations, most listeners.

We like to footnote our podcast. Exactly. Oh, man, that would be the nerdiest. As long as the footnotes in blue book form. So 42 U.S.C. Section 1982, which prohibits race discrimination in certain contexts, Supreme Court unanimously said that can include anti-Semitism. This was a unanimous Supreme Court conclusion. Supreme Court conclusion. The Obama administration in 2010 promulgated guidance that said that Title VI, which again prohibits race discrimination in educational, federally funded educational programs, includes anti-Semitism and includes discriminations against Jews, Muslims, and Sikhs

when that discrimination is based on the categories that Title VI protects. I mean, that Title VI protects. I mean, this is common sense. I mean, this is absolute common sense. The one thing, though, the one thing, and again, the executive order text wasn't as bad as people feared. It is true that the executive order referred to these IHRA guidelines. It said that it has not intended to violate the First Amendment, but the definition of anti-Semitism that the State Department promulgates is one that can be useful. Okay, it is still true that that definition includes vile statements that are constitutionally protected. And you just don't need to have that in there. Give me an example of something that you think falls in the gray area because of that.

If I'm a student on a campus and I say, Israel is destroying the Palestinians, they need to be stopped because they're, I don't know, money changers, or I don't quite have all my slurs right. But, you know, where does that fall? If I say that to a fellow student? Yeah. So, if you say that to a fellow student in the context of, say, a spirited argument, or you say something that is, you know, worse than that, you know, or whatever, Jews control the world, or, you know, whatever some of these actual examples are.

That is an example of constitutionally protected speech. However, if it is, let's suppose you are a professor and as a professor, someone notices that you continually grade, your Jewish students seem to struggle more in your class. Right. And the professor says, oh, that's just I don't I don't know how that could possibly happen. possibly happen. And then you read his Twitter feed, and he's got all of this crap on it, or his Facebook wall, or, you know, he's an outspoken supporter of Hamas, or, you know, you... Sure. Then a lot of times, even constitutionally... You could file a complaint. Right. It could be the basis of a complaint, yeah. Even constitutionally protected expression can be evidence of discriminatory animus when it is tied to discriminatory actions. But these students in the BDS movement who I disagree with, but I think have every right to express their opinions.

Right. do they need to be concerned that they can no longer have their BDS table on campus or have boycott flyers that they hand out, including to Jewish students, saying that you need to boycott Israel because they are hurting the Palestinians. They're unfair. They're whatever, you know, all the mean things about Israel. Right. Yeah. So they should not. And the executive order tries to say, we're not intending to violate the First Amendment. But one of the things that you saw in a lot of campus speech codes back in the day is you would see all of these definitions and these speech codes of discriminatory speech.

And then at the end of it, they would say, and none of this is intended to violate the First Amendment. Well, okay. So that's part of the problem. Well, and a lot of those speech codes that I think have mostly been found out, and kudos to those who are still on the front lines doing that, but a lot of them used to say if it caused you to feel uncomfortable or discriminated against or, you know, it was like in the eye of the beholder, whether it was offensive language. And so then the offensive language, like someone saying that we should, you know, destroy Israel. That could be very offensive language to someone. Right. But it's protected. Right.

Right. So I have struck down in court speech codes that had lists of discriminatory statements that also had this constitutional savings clause that said none of this is intended to violate the First Amendment. And the argument you make in court is these students are not First Amendment scholars. They will read the list of prohibited words or the list of discriminatory words or words that could be used to prove discriminatory animus, and they'll regulate their speech accordingly. But the comparison that I use is those words can still be evidence of discriminatory animus, but they tend to have to be tied to conduct. So let's take, for example, tabling. Tabling is a classic First Amendment protected activity on a college campus. So you can table all you want for BDS. Table all you want for that. campus. So you can table all you want for BDS. Table all you want for that. But let's suppose instead of just tabling, you walk outside the dorm room door of a Jewish student at 2 a.m. and you start chanting BDS, BDS, BDS. Well, number one, that's harassment regardless of the actual, you could be chanting anything. You could be chanting SEC, SEC outside

the door of an Ohio State. That is offensive. Yeah. And that would be harassing, even though it's not based on a protected characteristic. But then what makes it more serious is that the harassment is based on a protected characteristic. And so all of this is just normal law. So you don't have to include these definitions in this executive order. You can just say if it's anti-Semitic and that anti-Semitism is motivated by the categories protected by, you know, animus towards the protected characteristics in Title VI, Title VI applies, period, end of story. You don't have to list all the speech elements that you think can be anti-Semitism. But there's also, and you've touched on this a little, there's also a chilling effect beyond what is black and white written. And should there be a concern that after this administration, I think,

has done a lot on First Amendment on campuses, that this in some ways is the opposite. If there was a chilling effect on the students with the speech codes, sorry, a chilling effect on the universities once because of the speech codes, there now could be a chilling effect the other direction that now they're going to come down too hard on students and maybe the BDS tabling won't get their permit in time. Right. And that's the concern. And we'll see what happens. But I think that there's such a simple fix here. I mean, it's really simple here. Does Title VI protect Jewish students from many common acts of anti-Semitism. Yes. And to clarify that is important and necessary.

It's consistent with the Obama administration. It's consistent with Supreme Court precedent. And it's a great response to rising tide of anti-Semitism in this country. So, yes, absolutely make it clear that Title VI applies. country. So yes, absolutely make it clear that Title VI applies, but don't connect it explicitly to constitutionally protected speech, even if that speech is vile. I mean, this shouldn't be that hard. And yet here we are, David. And yet here we are. Well, some of this is that hate crimes have risen quite a bit over the last few years. We've had a 17% rise nationally. You know, we had the shooting in New Jersey and New Jersey for three

years in a row has seen hate crimes rise in their state, according to the FBI. And about 20 percent of those hate crimes are religiously motivated. That's a sad statement on where we are as a country and I think certainly worth the attention of any administration to try to do more. Yes. And that's why I give clears up some confusion because college administrators for a long time have treated religious anti-religious discrimination on except in employment that's going to protect students in the same way as they're protected from racial discrimination. And by saying, hey, look, anti-Semitism can be racial discrimination, typically is racial discrimination, you're doing a real service here. You undercut a little bit of that service by introducing this sort of speech code ambiguity to it. And I don't know that the administration is going to listen to this, but maybe a future administration will. You can accomplish all the same purposes without the speech code elements just by limiting your policy statement to part one, Title VI applies, and remove part two, Part one, Title VI applies and remove part two.

Here's the definition of anti-Semitism. And real quick, talk briefly about how this applies differently to the University of Texas, a public school versus Yale private school or Northwestern. We'll go with my Northwestern private school. Interestingly, it's going to apply to both of them because this is Title VI. It's tied to funding. And so they're going to both be, and it's going to apply to a ton of private educational institutions around the country. Some, a very few don't take any federal funding at all, like a Grove City, for example. I think Hillsdale. Hillsdale takes no federal funding. I think Hillsdale takes Hillsdale takes no federal funding. There's very few.

But, you know, I'm not sure Hillsdale has a vibrant BDS movement either. Somehow, I doubt that. I mean, we'll have to do an investigative report, but I doubt that. But like Title IX, Title VI is tied to funding. And so there's going to be applicability across the whole, the vast majority of the educational spectrum. And so, again, respond to this rising tide of anti-Semitism by making this clear. And I think doing it in a way that enhances, it's more clear than the way the Obama administration stated it. It harkens back to the 1987 Supreme Court case.

All good. All good. Way to go, Trump administration. The speech stuff, not good. And, you know, I think a lot of, I think most campus administrators recognize that. After years of speech code litigation, they've kind of been burned. So I hope that it won't have much practical chilling effect on speech, but it has the potential to have some chilling effects. So are we ready to move on to... We solved anti-Semitism.

We have. And I think 16-year-old me would have gotten that date now. No, just kidding. He definitely wouldn't have dated me. would have gotten that date now. No, just kidding. He definitely wouldn't have dated me. Well, I was just thinking, as you said, your 16-year-old self said, why don't you date me? And I filled in in my mind, said no 16-year-old to me ever. My high school life was not my peak. I just gonna go ahead and confess that but i suppose it's good you don't peak when you're 16 or 17 i think that's true it's hard

to tell a 16 year old that including me um that it was a good thing but but looking back it you know it was a good thing it's a good thing i didn't run off and marry that boy although he's he's sweet and we stay in touch and he's great. So again, this is not to dunk on a 16 year old who said something stupid one time. Yeah, right, exactly. Who may be listening to this very pod. Oh man, a college friend of mine

who I also had a crush on and did not date me does listen to this podcast. It was like the first person to text me and it was like, I'm listening to the podcast. And I was like, oh man, you didn't want to date me either. No. That's fantastic. So to all those people who didn't want to date me, thanks for listening. Yeah. Well, you know, there is a silver lining in that dark cloud, I guess. Oh, so true. Yeah. Yeah. Well, speaking of dark clouds, let's end on a dark cloud. The conservative porn wars, which is not nearly as exciting as that phrase sounds. No. But we had a big fight that started last week. You always end up in the middle of these, David. Always.

I get pulled in. You are drag queen story time, porn war David French now. It's unreal. What's that line from, is it Godfather 2? Just when I thought I was out, they pulled me back in. You were never out of Drag Queen story time. No, I never, never was. So anyway, give us the start, by the way. Yeah, yeah. Yeah. So this started when four Republican congressmen wrote a letter to Bill Barr that said, we would like for the Department of Justice to prioritize prosecuting obscenity, which is a term of art in constitutional law. It is not saying prosecuting pornography. Obscenity is a subcategory of unprotected speech that is defined by a very confusing yet narrow Supreme Court test. And so these four.

It is, although my favorite on this is the I know it when I see it, which is a much better test. Yes, exactly. Yes. The Miller test. But no, there's a different test. Yes. Yeah. I think the Miller test.

I don't know if it's directly replaced. I know it when I see it, but it's after I know it when I see it. Yeah. It's directly replaced, I know it when I see it, but it's after I know it when I see it. Yeah, I think it directly replaced, I know it when I see it, because that was not a particularly helpful test for most people. But I felt like it sounds like when you ask your parents for something, this is like the teenage podcast for Sarah, you know, and they're just like, no. And you're like, why?

And they're like, because I said so. Like that was the Supreme Court being like, we know it when we see it. Like, go back to your room. Yeah, yeah, exactly. And so they advocated for greater prosecution of obscenity. That's not, obscenity is speech not protected by the First Amendment. Arab Amari side of the Amari French wars of the last summer said, OK, what we really need to do is ban porn. Forget this limited attack on obscenity. What we really need to go and do is ban porn. And that quickly turned into a conservative, social conservative versus libertarian food fight over whether or not we should, the conservative movement broadly, whether or not we should, the conservative movement broadly should try to ban porn.

And I had, I was instantly, this is the nostalgia podcast. So you've been transported back to your 16-year-old self. I got transported back to my 24-year-old self in law school where the two big food fights were over abortion, which that's not changed, and porn. Because this was the height of the effort to try to figure out a way to deal with the prevalence of porn. This was in the aftermath of the Reagan, the Mies Commission on pornography. But this is pre-violent video games to Bergore. Pre, yes. So this is. So I just want to, I want to date this on our timeline of absurd cultural fights that we've had that never work out, but okay. Yeah.

So this one actually reached an uneasy, though relatively effective truce. So this was with when you had like the Christian coalition. I almost said getting in bed with Catherine McKinnon, but that didn't actually happen. But this was the cooperation between like the Catherine McKinnon, Andrea Dworkin realm of feminism with like, say the Christian coalition to try to actually ban porn or to expand obscenity prosecutions. And what ended up happening is obscenity prosecutions proved to be super, super hard and difficult to win. And the effort to ban porn was completely failed. So Indianapolis, and this is trivia, man.

This is such trivia. But Indianapolis allowed Andrea Dworkin and Catherine McKinnon to write their anti-porn ordinance. This is in the 1980s. So Catherine McKinnon and Andrea Dworkin combined, worked with social conservatives to write an anti-porn ordinance that effectively banned the vast bulk of what you would consider pornography on the grounds that it was. Like what? I don't have the statute in front of me, but essentially what they did is they treated. Because by the late 80s, early 90s, my husband has like one shared playboy with like him and his friends, you know? So like he would be really sad about that, I think.

But it was, so what it was is it sort of is it essentially treated pornography as inherently discriminatory against women. And so then it banned it as being discriminatory against women. Went up to the Seventh Circuit Court of Appeals and was dunked on by the Seventh Circuit Court of Appeals. And then the Supreme Court, and it was an interesting procedural history, but the Supreme Court essentially affirmed the Seventh Circuit without hearing argument, without issuing an opinion. It just issued like a summary affirmance. And some enlistor might be dinging me on the exact procedural history here, but the Supreme Court dunked on it as well in a particularly sort of contemptuously dismissive way. And so that kind of ended the efforts to ban porn. Until 2019 on Twitter.

And so that ended it. And then the Communications Decency Act from the 1990s was passed, which attempted to protect minors from porn on the internet. And the Supreme Court ditched that as well, but with this interesting caveat that said, perhaps zoning porn would be appropriate, but the tech isn't really there yet. And the reason why the word zoning was important is that the uneasy truce that was reached in the 80s and 90s over porn was you can't ban it, but you can zone it. You can get it out of the middle of Times Square. You can get it out of the middle of Nashville, Tennessee, but you can't ban it. You can zone it. In other words, you can keep it. You can't keep it from adults.

In Houston, in our no zoning world, you can do whatever you like. It's a beautiful place down in Houston. Now, is it true? Is it really a no zoning kind of place? It really is. I mean, there's obviously, I do think some exceptions, but it's great because all you have to do when you drive down the street is think to yourself, where would I put that Walmart? And by God, there the Walmart is. It's so convenient. We have the best strip malls. They're all along the freeway and we call them feeder roads. Those things that run along the freeway that let you go into the strip malls. I mean, I just, I have so many good things to say about Houston's no zoning policy. That's fantastic. Yeah. Eastern Kentucky is like that as well.

It's really, and the residential aspect of it is particularly charming because you'll have like a Cole executives, giant McMansion, 200 yards from a trailer park. And you know what? Everyone's better off for that. Like we should all. Yeah. for that. Like we should all, yeah. Well, you know, it's, well, it's, and I grew up in that environment in rural Kentucky where you didn't have that sort of like really sharp residential break so that everybody kind of was thrown in together. And, you know, while it's, it doesn't create the kind of incredibly beautiful gated communities that people like these days, it has some real social benefits that you that everybody grows up around each other. I agree. So speaking of porn in the 90s,

do you remember whitehouse.com? Oh, vaguely. Wasn't that? Yeah, when George W. Bush was elected, they, I believe, had the first website, whitehouse.gov, and some very clever people got whitehouse.com and not at all surprisingly turned it into a porn site. frequently visiting the website, but couldn't remember the difference between.gov and.com, my browser history circa, you know, 2001 would be not okay. It just frequent visits to WhiteHouse.com. I mean, WhiteHouse.gov. I meant WhiteHouse.gov.

But, you know, this is one of those things where the conservative movement is getting confusing. So I'm a social conservative. I'm a Christian conservative. I think porn is bad. I'm in favor of zoning. But this idea that all of a sudden we're going to sort of start to define who's a real Christian conservative by who's going to adopt the most sort of unrealistic maximal government intrusion sort of morals policy is deeply confusing to me. So, you know, it's funny, like I'll listen to some of the First Things crowd and they'll say, I believe porn is bad. I'm with you. I believe that we need to really repair the nuclear family. I'm with you.

I think that deaths of despair are a deep American tragedy connected to loneliness and alienation. 100% agree. And that's why we need the Catholic super state. Okay. percent agree and that's why we need the catholic super state um um okay you're you suddenly lost me there and this is where this is yeah go ahead no no no go ahead so i i have never been uh invited to nor a member of this in crowd that you speak of uh And so as I was watching the Twitter porn wars this week, I was struck as an outsider by how much it felt like virtue signaling. The same virtue signaling that happens on the left

of outwoking each other felt very much out opposite woking each other on the right of, you know, well, I don't think we should have porn as accessible and where possible the Department of Justice should step in, quickly turned into, you know, all porn should be burned in the center of the square to we should have an authoritarian government that fines pornographers and tars and feathers them.

I mean, it just and anyone who had a less unwoke, anti-woke opinion was then themselves pilloried. It looked so similar to me. I like in a way that my eyes just rolled the whole time, the whole week on the porn wars. in a way that my eyes just rolled the whole time, the whole week on the porn wars eye rolling from me. It also felt, I will tell you, and this is not to make it to say in any absolute terms, but it felt very much like a male dominated conversation. How else do I put that?

Like I didn't see a lot of young women weighing in on their feelings and being included in that conversation under the guise of course of we're here to protect women i noticed none of them were inviting women to wade into what they think might i don't know protect them so felt paternalistic it felt extra wokey virtue signaling and that's aside from any merits, by the way, it's just on the cultural part of how the Twitter conservative anti-woke wars are going. For those of you who are not privy to the video feed between Sarah and I, that was the sound of me nodding my head vigorously as you were talking about virtue signaling and woke. Because frankly, that reminded me of the Drag Queen Story Hour debate from six months ago.

It's all the same debate because the subject doesn't matter. Right. Sorry. Because the thing I kept going back to is, okay, I get what you're saying about Drag Queen Story Hour. What do you propose? What do you propose? What do you propose? And what was proposed was either, well, we're going to have a hearing where they're going to own the libs,

or we're going to change First Amendment doctrine in a way that's going to have some really bad effects for people and causes. You took it too literally. And how adorable of you to ask for solutions when if what I'm saying is correct, it was never about finding a solution. It was about virtue signaling publicly that I am the most socially conservative old white dude available. Or millennial Iranian immigrant. I don't know who I could possibly be talking about. That's fair. I shouldn't have brushed with that. But yeah, I mean, to me, in all of these conversations, the subject matter has never mattered. It's never been about the solution. It's always been about the fight and about excluding, about in groups and outs, which is what all of these fights on Twitter are for the most part. And very much so on the left and very much so on the right. Yeah. Yeah. Oh, you know, it really, that hit home to me. I really actually stopped engaging in the conversation when Hadley Arcus wrote something in a Claremont publication that

accused me of being a moral relativist, which I thought, you know, when part of my part of the way people attack me on online is they call me Pastor French because of my moral objections to Trump. But then because I don't believe in eliminating the vast bulk of First Amendment doctrine to crush 35 chapters of Drag Queen Story Hour. I'm suddenly a moral relativist. I just stopped taking it at all seriously. And I made a mistake. I made a mistake of replying to that and saying, no, I'm not a moral relativist because I think there are things that are right and wrong. I just don't necessarily tie the use of the government to everything that I think is wrong. And then the response was, well, you need to prove that you're not a moral relativist by adopting this policy

position that I am proposing that has no hope of passing in any universe that exists, not in Earth 1, 2, 3, 4, or Earth 1 billion. It can't happen. I like the multiverse. Yeah. I like the multiverse because I like to think i um do you remember in the 90s when you used to go to a record store and the posters would be kind of lined up next to each other of the album covers or whatever else and you would flip through the posters and they'd kind of hit each other and those plastic things that they were lined up and that's what i think the multiverse looks like. And like, we're in, you know, again, my like Nirvana album cover poster. But then like right next to that is one of your hairband posters.

And like, we could just flip to the next poster. You're triggering my lamentation at the loss of the hairbands. I mean, you know, going from Bon Jovi to Nirvana was not a good trade. And this is gonna be- I like flannel. I really like flannel though. It's so soft and comfy.

And just that statement is gonna get me into pop culture trouble on Twitter again. But, you know, that's where I really court controversy. But, you know, anyway, let's close it out because we're running against our self-imposed time limit. But the one thing that you're describing there is horseshoe theory. Horseshoe theory, which is at the extremes, both sides become more like each other. They bend towards each other. And that's what you get from the woke left and the woke right is that is that horseshoe theory.

I think that is totally true. You know what we didn't get to and that people should go read your newsletter about is DC versus Marvel, the new Wonder Woman trailer. So I just want to plug your newsletter because I thought you did a good job explaining it for someone who did not know the difference between DC and Marvel, but did watch the Wonder Woman trailer and thought, that looks nice. I especially liked the New Order song in the soundtrack. That was cool.

Yeah, it brought back a ton of memories. But you know, you've just previewed our nine part, coming up nine part podcast series on DC versus Marvel. David teaches Sarah about comic book universes. God help us. OK, but in return, I get to teach you about BBC historical dramas, including the six part Pride and Prejudice that they did versus lesser Pride and Prejudice. Nice. So we now have a 15 part podcast laid out.

Excellent. I can't wait. All right. Well, thank you all for listening. And please subscribe to this feed. Please subscribe to the dispatch at the dispatch.com and please review us. And hopefully this is, this one has been,

this pod has been easier on the ears and it will only get better, we promise. But thank you very much for listening. This has been David French and Sarah Isger, and this is the Advisory Opinions Podcast. © BF-WATCH TV 2021