Advisory Opinions - How Do You Square a Circle?

Episode Date: May 28, 2020

The president has a new social media executive order. What happens if Trump loses in November, but doesn't want to leave? Qualified immunity and the Fourth Amendment in the context of the death of George Floyd in Minneapolis. House of Representatives allows proxy voting for the first time this week. And a Central Park video sparks a national conversation. David and Sarah have thoughts. Show Notes: -David's piece The Growing Threat to Free Speech Online -Republican lawsuit to block proxy voting Learn more about your ad choices. Visit megaphone.fm/adchoices

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Visit rbc.com slash student 100. You ready? I was born ready. Welcome to the Advisory Opinions Podcast. This is David French with Sarah Isger. And I say this all the time, but this time I really mean it. We have got a pile of stuff to cover today. You know, there was a time, Sarah, when I thought we would struggle on occasion with topics with a legal-themed podcast. How wrong you were. How wrong I was.

Okay, so we're going to talk about the Trump executive order aimed at social media. We're going to answer reader mail that has more than a few have written either both Sarah and I or just me or just Sarah and asked this question, if Trump loses and he refuses to leave, what happens? And then we're going to talk about the George Floyd case a bit more in Minnesota, the role of qualified immunity and whether that will apply or attach to the officers involved in that case and insulate them from civil liability. We're going to talk about proxy voting for Congress, and then we're going to talk about Karens in general, but specifically and mainly the now famous Central Park Karen and kind of break that situation down and talk about what this says

about our culture. But before we dive in, I want to remind everyone to please subscribe to this podcast at Apple Podcasts. Please rate us positively. Thank you at Apple Podcasts. And also remind you that this is a product of The Dispatch Media. And we'd love for you to go to thedispatch.com and become a member over there. Okay. So, Sarah, we had a long conversation about Twitter and social media yesterday on the Dispatch podcast. And then news happened. The feud between Trump and Twitter escalated to the point where late yesterday afternoon, news broke that Trump was going to sign an executive order relating to social media. skepticism that this executive order would do much of anything. And the source of my skepticism was that in the hierarchy of American law, an executive order is well below the Constitution

of the United States and statutes passed by Congress in its ability to adjust American legal rights and privileges. But it's not toothless. So, um, we were waiting to see what it would say. We still don't have the final order, but we have a draft and the draft is, I would say three degrees more than toothless. I thought it was a little toothy. I thought it had, you know, like, you know, more than baby teeth. More than baby teeth. So basically what it's going to do is it's going to ask the it's going to ask the federal government to determine whether or not, and I'm going to pull up the exact language here. It goes through a version of the history of Section 230, the famous Section 230 of the Communications Decency Act. By the way, there's this guy who wrote this really great article in Time Magazine on January 24th of this year about Section 230 that I thought was really helpful, helped me get a good, you know, my hands really around it before today's podcast. And then I looked at the byline,

and it was by David French. So we'll put that up on the website, on the notes for this podcast. But I actually, no joke, I actually did find this really helpful. Oh, you're kidding. That's hilarious. So you didn't know it was by me when you started reading it? I did not. That's fantastic. I love it. So what it's essentially doing is saying, so Section 230 is for anyone who's paid a small amount of attention to this, you either A, have heard of Section 230, or B, you may

even have some sort of definite opinion about what Section 230 means. And depending on what side of the debate you're on, a lot of people look at Section 230, well, let's do this. Let's talk about what the EO does, then we'll get into the more complicated stuff. So one of the first things it does is it says to further advance a free speech policy that the EO lays out, what it is going to require within 30 days of the date of this order, the Secretary of Commerce, through the National Telecommunications and Information Administration, shall file a petition for rulemaking with the Federal Communications Commission, recognizing that the FCC expeditiously

proposed regulation to clarify the conditions under which an action restricting access to or availability of material is not, quote, taken in good faith with the meaning of subparagraph C2A of Section 230, particularly the conditions under which such actions will be considered to be deceptive, pretextual, or inconsistent with the terms of service, or the result of inadequate notice, the product of unreasoned explanation, or having been undertaken without a meaningful opportunity to be heard. Would you like to say that in English? Yeah, I was just going to say, do you want to say it in English, or do you want me to

say it in English? Go for it. Okay. English. Go for it. Okay. Essentially, what Section 230 does is it allows an internet service provider, Twitter, Facebook, The Dispatch, National Review, to moderate user-provided content in good faith without converting that user-provided content, like a comment or a tweet or a Facebook post, without becoming the speech of the internet service provider for the sake of defamation, libel, slander purposes. So in other words... Right. So someone in the comment says, David French only has one leg,

uh, and you don't only have one leg, right? Then, uh, it's not, uh, Google's speech or Facebook speech. It's my speech. So I can be held liable because I wrote that you only had one leg, but Facebook cannot, or if it's in the dispatch comments, the dispatch cannot. Right. So, um, so essentially what it is it is saying is that there's a principle that if you're talking about edited, curated content in the way that, say, National Review or the dispatch edits, selects, and publishes certain, like my newsletter, your articles, the Morning Dispatch newsletter. That is a classic action of a publisher. The comments underneath the Morning Dispatch or my newsletters, even though we have the power to moderate them, are not the dispatch's speech.

They're the commenter's speech. And so what section 230 does, it is, there's so much confusion about this. It doesn't say that there are two kinds of entities, publishers and platforms. And that if you do, if you do too much moderation, you suddenly become not a platform, but a publisher. What it says is there are contexts in which there are certain contexts, certainly, that could turn you into, and a part of your work would be publisher, but moderation by itself doesn't make you a platform. And there's a quality... And by the way, I think it's important to go through a little bit of the history on this of why this turned out to be important. There were these competing cases back in the early 90s about whether this was going to be the case that you would be held responsible for these

user-driven comments or content that is published on your website. And if you were held liable for those, if you did any moderation, the incentive system that would have been created was that you would have no moderation and, you know, you couldn't remove child pornography in theory or something, you know, maybe not as egregious as that. And so you would end up with just an internet that was kind of a filth, you know, lowest common denominator. And so what this actually allowed was for basic moderation without the legal liability. It's a really big deal. They call it the 26 words that invented the internet. Right. And what's totally misunderstood about this is that this Section 230 empowered ordinary

citizens far more than almost any single statute that I can think of, empowering the speech of ordinary citizens far more than almost any single statute than I can think of. And here's why. Prior to the development of the internet, celebrities had no problem getting their message out. They were covered by the news. Many of them had the resources to have their own kinds of platforms. Politicians had no trouble getting their message out. If you wanted to know what a restaurant was like, who did you read? You didn't read user reviews. You read food critics. It was what prior to Section 230 and prior to the Internet, if you have problems with quote-unquote elite media, that was a world you

would not like. Your ability to get around the media, to communicate around the media was incredibly limited. And so the ability to disseminate information was very much of an elite enterprise, especially at scale. What Section 230 did is essentially it said, because, section 230 did is essentially it said, because, and to give you a little bit more background, you had two, if you're my age, Sarah, you remember the big three of early internet access, AOL, CompuServe, and Prodigy. Of course, I remember all of those. Do you remember those? Yeah. Well, back in the day, you would get a CD in the mail and you would put it into your computer. It would load your software for CompuServe, AOL, Prodigy, and that would be your gateway to the internet. It was like the internet was a gated community through mainly one of those three resources. And they had different policies and they had different cultures.

And CompuServe was kind of a cesspool. And Prodigy was a little more family-friendly. It was a little safer. We had Prodigy. You had Prodigy. I had AOL. And AOL. We switched to AOL. We ended up in the end with AOL, but mostly I think just because I wanted AOL Instant Messenger with my friends. Yes. Well, AOL Instant Messenger, that is what catapulted AOL to like a decade of dominance. Oh, for sure. I was still using it in college was from junior high through college, AOL Instant Messenger was my main form of communication. Yeah. Oh, it was my main form of communication from Iraq in 07. Yeah. I was still, it was a very low bandwidth way of communicating with our, well, that's a whole other story. We

had a rusty former Iraqi army satellite dish that we had pointed at a civilian satellite and created our own internet service. Right. Yeah, it's a fun story. But anyway, so you had a lawsuit brought against CompuServe for libel defamation, and it was dismissed because the court said that CompuServe couldn't be held liable for user speech because they didn't exercise any control at all over posted content. Hence why it was kind of a cesspool. Exactly why it was a cesspool. Then four years later, Prodigy is held to be liable for user comments because it engaged in moderation. comments because it engaged in moderation. So in other words, Prodigy was punished for trying to maintain a level of decorum and civility. CompuServe was rewarded for being sort of like the open sewer of the internet, creating a lot of perverse incentives. And so Congress steps in and says,

wait a minute, wait a minute. We're not going to say that you're a publisher if you're going to engage in good faith moderation, thereby opening up people's ability to post on Facebook first, you know, MySpace before Facebook, post on Facebook, post on Yelp, post on Reddit, etc. And then allow each one of these internet service providers to create and curate their own kind of community according to their own values. And it supercharged free speech on the internet, absolutely supercharged it. And people say, well, that's a giveaway to big tech. It's actually not. It's kind of common sense. So let's take this out of the tech world. If I'm, I can't remember,

were you or were you not a Parks and Rec fan? You know, I never was. I'm really surprised. It's not, it's not, not a fan. It just like, I missed it. I just missed the boat. Gotcha. Caleb is shaking his head in such dismay.

No, I like, I went from The Office to 30 Rock. I don't know what happened. Well, you know, Andrew Dwyer of Parks and Rec is one of the all time great sitcom characters. Sure. But anyway, that's Chris Pratt. But anyway, let's say you're in Parks and Rec and Leslie Knope is hosting a town hall meeting and a citizen gets up at the town hall meeting and proceeds to lie in public about another citizen of Pawnee, Indiana.

Now, they're using a microphone provided by the city government. The audience that's sitting there is sitting there because the city government has called the meeting. But we all would expect that the only person liable for that defamation is the person speaking. And if Leslie Knope got uncomfortable with the way the guy was going and cut him off and said, sit down, you're engaging in personal attacks, that doesn't make Leslie Knope liable for the guy spreading the defamation. So this is all sort of common sense. And it imported that principle into the Internet.

And so what Trump is now doing is saying, well, we're going to get the federal government involved in determining whether or not the moderation engaged in by various social media companies and other companies on the Internet is, quote unquote unquote good faith, whether it's in good faith. Sarah, that's a lot of setup. What are your thoughts? The one thing we didn't talk about was Josh Hawley's role in all of this and his proposed legislation, which I think is just worth mentioning because you've mentioned that the EO, of course, only can go so far. It can't change legislation. But Josh Hawley, as a senator, can. And his bill, in short, would basically ask the media companies to prove to the Federal Trade

Commission that they don't moderate content in a manner designed to, quote, negatively affect a political party, political candidate, or political viewpoint. So it's sort of have this, we've talked about burden shifting in the past. It would, 230 would then have a burden shifting mechanism whereby the social media companies themselves would have to show that what they're doing in moderation, in moderating these comments, is not to put a thumb on a scale politically. Right. Which is a little different than your Leslie Knope example, by the way. Yes. So what what what Hawley would do is he would have, I believe, is the FTC certify that and this this legislation, I despise this legislation because you want to talk about

government entanglement and political speech, that it would require companies to essentially maintain not just overt policies, but also algorithms that do not have the purpose or effect of creating viewpoint discrimination. Now, it is difficult for me to imagine how that would be coherently policed by a federal commission, especially when you're talking about the effect. Because these social media companies, as I mentioned on the dispatch, do not have all the same user base. There are going to be political preferences that the different, you know, the customer base has that is going to skew numbers in one ideological direction or another. I mean, just Twitter is younger and more progressive.

Facebook is older, talking about the user bases. YouTube comments are notoriously male-dominated. These different social media outlets have different customer bases. They have different cultures. They intentionally create different cultures, as is their right as private companies. And then to have a federal commission to come in and say, you, private company, I think that the way your algorithm is having the effect of privileging one kind of speech over another kind of speech measured by X metrics of user data, wow. You want to talk about big government entanglement in private political speech. So here's why I was confused at the beginning of this week about all of this. And I've sort

of unconfused myself, but as a potential listener of this podcast, I want to explain my confusion, which was after Twitter added the quote fact check, which was an exclamation point. And it said, get the facts about mail-in ballots after a tweet of the president's about mail-in ballots. And you could click on that and it would take you to a different website where you could read some stuff about mail-in ballots. And what they thought was false in his tweet. I couldn't figure out what Section 230 had to do with any of this because get the facts about mail-in ballots isn't libelous speech or defamation in any kind because it's not a fact-based statement about mail-in ballots. And the answer is it doesn't

have anything to do with it. So if you're a listener confused why this fact check led to a conversation about Section 230, the answer is punishment. Yes. Yes, that's exactly right. This is punishment, very simple. This is a liability waiver, basically, that internet companies were provided. If you take that away, it's a huge deal. So it's basically disincentivizing them from doing something like this fact check. But of course, it would not affect their liability for the fact check because it's irrelevant. Yeah. The only way you could try to argue it's relevant is if you take the completely ahistorical, completely unlawful reading of Section 230, which is super popular on the internet, and you just simply cannot disabuse people of it. You can talk law and history and

case law all you want. I know what you're about to say. The publisher versus platform. Exactly. Which doesn't, which isn't a thing. Which is not a thing. It's as if there's a magic switch. So it's like a light switch. And if Twitter adds a fact check, it switches from publisher, from platform to publisher. And you can say, that's not the way this works. A million times, you can point to all of the examples in the world that demonstrate this is not the way this works. million times. You can point to all of the examples in the world that demonstrate this is not the way this works, and people will still say, you're wrong. Twitter's now a publisher. And it's one of the more maddening aspects of modern discourse. And unfortunately, a lot of politicians play into this. Yeah, so I find the EO to be toothy. It has some working group stuff. It asks

the FCC to look into 230 and potentially create regulations around it that could have substantial redefining roles. Now, that's a ways off, of course. that's a ways off, of course. But it also, I think, will give momentum to Hawley-esque legislation and perhaps even provide a factual underpinning for it so that Hawley can have more hearings and things like that. So it's beyond what I thought it would be. Now, of course, initially, the president said he was going to shut down Twitter or something to that effect. You know, that's not going to be in the works here. But, you know, see if you agree with this, David. But back in the late 90s and certainly in the aughts and even more so now, I guess part of me is surprised that we've made it this long in the wild, wild west Internet. I guess part of me is surprised that we've made it this long in the wild, wild west internet.

Because we really have been. And I've always thought that we're going to look back, you know, towards the end of our lives and be like, wow, I can't believe that's how this all started. And we just like pew, pew, whatever we want to do. And then, of course, it would end up in some sort of regulatory capture because everything does eventually. But here we are, you know, 30 years later, and that's not really the case. So I think it will be interesting to look back 10 years from now and see what's going on with not just Section 230, but as you said, also the sort of the platforms are heading to more and more tribalism. Mm-hmm. And so you could end up with the platforms mim heading to more and more tribalism. And so you could end

up with the platforms mimicking something more like cable news, where there's the Fox News platform, the MSNBC platform, some CNN thrown in there. And the great sort continues and that it actually won't be legally based. It'll be culturally based. Well, and Mark Zuckerberg came out almost immediately after the Twitter fact check and said, we don't, we're not going to be the arbiters of truth online, differentiating Facebook from Twitter in that regard. He even said, we have a different policy than I think Twitter on this. Yes. Subtle, very subtle. Yeah. And you know, it's, it is interesting how these different platforms work because Twitter. Oh, wait. And by the way, David, do you know where he said that? Where did he say that? Fox News. Right. Right. I mean, I think that's relevant, right? As we're

talking about this sort of sorting mechanism, Zuckerberg said that to Dana Perino in an interview on Fox News. And so, yeah, so you're seeing the different companies shaping themselves, driven in a lot of ways by commercial imperatives, driven by the different values of the leaders of the companies. And here's the other twist here. There is bipartisan agreement that something needs to be done about Section 230 based often on the misunderstanding of Section 230. But for example, Biden has said, Joe Biden says he wants to repeal Section 230. Josh Hawley wants to heavily modify Section 230. Here we have an EO from Donald Trump

about Section 230. But you know what? There is not consensus on what would come next. So there is a lot of angst over free speech on the internet. That angst is driven by different kinds of concerns. So, for example, Democrats are much more concerned about the use of social media in the way it was used in 2016 with they're much more concerned about fake news. They're much more concerned about misinformation online. They are ready, willing, and able, or they're very happy in putting immense pressure on Facebook, Twitter, et cetera, to drop the ban hammer more. And to the extent that you would see any sort of democratic reform of social media, you would see incentives to ban, block, label, flag, lots more content. A lot of the pressure coming from the right is we want less of that.

We want less banning. We want less blocking. We want less flagging. Now, the interesting thing is there's so many competing sort of cultural and political aspects to this. A lot of the pressure coming from the right to ask the government to override these private corporations' policies to establish more free speech on these platforms is coming from some very, very, very culturally conservative right wing populists, OK, who believe that their kind of social conservative speech is going to be especially targeted.

But the more you step into these platforms and you order them to open their doors wider to speech, you're actually going to result, these platforms are going to become far more filthy and far more overrun with garbage speech. And so that's one of the ironies here. So you would have these people, they say, I want the space for social conservative speech when they're actually not being censored in any real meaningful sense, but they want to come in and they want to open up these platforms in a way that turns them from broadcast news to late night HBO. Well, and I'll push back a little on the censoring thing. In this case, appending the exclamation point, find out more about mail-in ballots, I agree, is not censoring, nor, you know, is it banning of any kind.

But we've had other controversies about shadow banning and things like that. And where, you know, one side of an argument gets their content removed and another side of an argument doesn't get their content removed. So I think this is a really legitimate debate. So maybe we disagree a little bit on that, but I don't, there's not going to be an easy answer to this. No. Or else it already would have been solved. Exactly. Exactly. Well, shall we move on to presidential coups? Yeah. I'm going to ask you, I'm going to stand in for our listeners, Sarah. I'm going to ask you, I'm going to give you a scenario. Okay.

It is late January 2021. Donald Trump has narrowly lost his race for reelection in an election that has had a record number of mail-in ballots. Claiming that the loss was due to fraud, he has got his people in the streets in protest. He has declared that the election is invalid and he will not recognize the results. There have been legal challenges that the Supreme Court has rejected to the outcome of the election. The electors have voted. There is no faithless elector.

Everything has been done by the book with the exception that the president is saying this result is illegitimate. I will not leave the Oval Office. Joe Biden takes the oath of office anyway with the president not there at the inauguration, and he starts striding after the inaugural parade, he starts striding to the White House where Donald Trump is standing with arms folded like George Wallace in the schoolhouse door. What happens? in the schoolhouse door.

What happens? The George Wallace comment aside. Okay, let's back up to November in your hypothetical. Okay. And actually go through what would happen in this scenario. I have seen a lot of people on the internet, a lot of smart people who I respect on Twitter and other places skip right ahead to January with this hypothetical. And I don't, it's not that I'm

trying to be dismissive or be patronizing, but like we don't get to January. That's just not, this is not a reasonable hypothetical to me. And let me tell you why. The process that we have in place is that after the election, the states, usually the secretary of state, of the state, certifies the election results. That then goes to the electors who meet in the state, and they certify the results. Okay, so let's back up to 2000.

The secretary of state was going to certify election results, and the one side didn't agree that that was a fair vote. So they sued. This is Bush v. Gore, of course. That gets quickly to the Supreme Court by mid-December. The Supreme Court hears argument. They decide it very quickly. And the Supreme Court says, OK, here's how you have to certify. Here's how you have to count that vote. Therefore,

here's how you have to certify that vote. Therefore, here's how the electors are directed to vote. Again, we're in your hypothetical. I don't have to worry about faithless electors. Right. So I'm going to skip that part. But by that point, by the way, we will have a faithless elector decision. So exactly. We'll know one way or the other about that. So, A, you have the Supreme Court of the United States more or less certifying the election results. And in your case, they would certify, you know, A, the Trump campaign would be the one to sue. So they would need a legal theory. In Bush v. Gore, it was equal protection of, you know, voting. They would need some legal theory for what happened. And then I think you have to get to what we've seen of the president so far. I get that a lot of people have very strong feelings about him. I really, I just want to

be very clear. I understand. But you have a president right now who's in the middle of a global pandemic who has had every opportunity to exercise or have an excuse at least to exercise huge amounts of authoritarian power. The presidency is very powerful. He has not done any of it. He was hesitant to use the Defense Production Act and to a large extent really hasn't. I understand he says things about using powers that he doesn't have, but he doesn't use the powers that he does have. So I'm very unclear where this authoritarian version of Trump comes from, because we just haven't seen it in practice. So once the Supreme Court decides, I just don't

really see this happening. And I'm willing to even say, like, maybe the 2020 election would go to the Supreme Court. But after that, no. Now, you, I think, have a good point of like, OK, Sarah, that's all really well and good legally, but you're not taking my hypothetical seriously. What then happens? Like, I'm right. He turns out that he's just not going to leave. You know, there is the 25th Amendment that would have to, of course, happen while he is still president. But David, you raise a very good point. The moment that Joe Biden takes the oath of office, Donald Trump is not the president. Right.

Under our Constitution. Right. He's just an electoral college. Yeah. The Electoral College has picked a president. The Supreme Court challenge was denied. Someone else has taken the oath of office according to the Constitution. Therefore, Donald Trump has been divested of the presidency.

Right. That's the reason I agree with you on all of the points that you made that why I don't think that my hypo will happen. I just don't think that will happen because everything you said, I think, was spot on. He has not demonstrated to this point that he is willing to push that hard beyond the bounds of the rule of law, especially in a truly unprecedented way that could trigger real civil strife. So, but there are a lot of listeners and a lot of readers who say that we are touchingly naive and that I want to see the evidence for it. Right. No, I think you're right. I don't think that this hypo will happen.

For instance, Donald Trump, and I'm going to get the number slightly wrong, but was under 41 nationwide injunctions at one point. He did not violate a single one. Right. So show me a court order when the Supreme Court tells him that you lost this case. Show me evidence where he has then said, screw it, I'm going anyway. It hasn't happened. Right. So, listeners, it's not going to happen. Like, I'll eat my shoe if this happens.

It's not going to happen. Like, I'll eat my shoe if this happens. It's not going to happen. But for those who say, you're touchingly naive, this might well happen. Let me just explain that the instant Joe Biden takes the oath of office, Donald Trump doesn't have to relinquish power. It evaporates from him. It disappears from him completely. At that point, the president of

the United States, the person with the constitutional authority is Joe Biden. And Donald Trump is just a dude trespassing in the White House at that moment. And so for his refusal to have any force at all, it would also have to be the refusal of the Secret Service to acknowledge the transfer of power. It'd have to be the refusal of federal law enforcement to acknowledge the transfer of power. And even if they Service to acknowledge the transfer of power. It'd have to be the refusal of federal law enforcement to acknowledge the transfer of power. Even if they refused to acknowledge the transfer of power, it'd have to be the Marine Garrison in D.C. would have to refuse to acknowledge. I mean, we're talking about a cascading series of breakdowns in compliance with the Constitution by not Trump's political appointees, but by the permanent civil servants

who've all sworn their own and permanent civil servants and members of the military who've all sworn their own oaths to uphold the Constitution. So even if he wanted to be the nightmare president authoritarian that you fear that he is, the instant another president takes the oath of office, he's just a guy. He's just a guy. And he can be some of the very same people who are saluting him five minutes before, five minutes after, could grab him by the arms and walk him off the grounds of the White House. And because this happens by automatic operation of law, there is nothing that requires Donald Trump to voluntarily relinquish power at all. It's just relinquished. Yep. So there. So there. Yeah, we just ended the coup. Yeah. All right. Next.

Okay. Sarah. I might get a little ranty in this segment. You know, qualified immunity brings this out in people. It does. It does. So the latest in the George Floyd four officers involved, protests that turned violent and turned into some looting in Minneapolis yesterday. And it's just,

as I said on the Dispatch podcast, one of the worst things I've ever seen in my life. And the question is going to be, how can the officers be held accountable for this? And there are two kinds of accountability, criminal, which we're not going to deal with right now, and civil, the ability to sue for damages. And when you're talking about suing an officer, a police officer, or any public servant in the state and local level for damages, there's a doctrine, a judge-made doctrine called qualified immunity that I despise that holds that you cannot get damages from a public servant who's violated your civil rights unless they have violated rights that are clearly

established under law. And when you say clearly established, you might think, oh, that's easy to prove. The First Amendment is clearly established. The Fourth Amendment is clearly established. So if I can prove that they violated my Fourth Amendment rights or my First Amendment rights, I get compensated, right? Wrong. You have to show that what is clearly established is that it is the way in which you allege, the exact precise way in which you allege that your Fourth Amendment rights or your First Amendment rights or your Fifth Amendment rights have been violated has been clearly established. I'll give you a quick example of how precise this can get and to show the absurdity.

So talking about a case before the Supreme Court, it is clearly established in the Sixth Circuit that if you sick a police dog on a suspect who has surrendered and is lying down on the ground, that is a violation of the fourth, that is a, you know, illegal search and seizure, and you can sue for damages and recover damages. It is not clearly established, says the Sixth Circuit, that if you sick the police dog on a suspect who's sitting up as opposed to lying down, that that's a violation of his constitutional rights. To which I say, what the heck?

So, Sarah, in this circumstance, when we're talking about being able to sue those police officers for damages, Mr. Floyd's estate suing the police officers for damages, what are they going to have to show? How far are they going to have to go to recover damages for that suffocation death? So I have a hurdle we need to get to before qualified immunity. Okay. Was this a violation of the fourth amendment?

Because, you know, in qualified immunity, you have to prove that your rights were violated. Then it's, was it clearly established? The Minnesota police department policy and procedure manual allows a neck restraint. Now, there are certain circumstances that you can use it on. A subject who is exhibiting aggressive, active aggression, for instance, is probably the most obvious example. And then there's situations that you can't use it.

Subjects who are passively resisting, as defined by policy. You know, Mr. Floyd was handcuffed at the time as far as we know and on his stomach so he probably falls into at best a passive resisting but to your point the the video that we've seen starts you know when things are already happened. Right. So was the neck restraint a violation of the Fourth Amendment when he started the neck restraint is a different question than was it a neck restraint? Was it a Fourth Amendment excessive force violation to use the neck restraint when the video that we see is rolling? that we see is rolling. We're told that the neck restraint lasted for seven minutes.

So, A, was he following policy, the police officer? B, there's also, you know, if he was trained to use a neck restraint appropriately, but he was doing it wrong, restraint appropriately, but he was doing it wrong as in the training itself maybe wasn't sufficient or, um, you know, he was allowed to do it, but this wasn't the right way to do it, uh, et cetera. Then you're still not to qualified immunity. By that point, you might have a claim against the entire Minnesota police department for, you know, if you can show that they habitually mistrained people, for instance. But I just mention all that because you don't automatically get to qualified immunity here. You still have to show that the neck restraint itself was a violation of the Fourth Amendment. Okay, so then let's assume that they do. It's a Fourth Amendment violation.

This was excessive force. So's a Fourth Amendment violation. This was excessive force. So you got past hurdle one. Qualified immunity, because it was listed in the procedure manual, I think is going to be pretty hard. Pretty hard to overcome it. Right. Yeah. Yeah. So that's what you just did, Sarah, was great. Show people an excellent an excellent short summary in the difficulty of litigating these cases from a plaintiff's perspective. If that's one of the things that the defense will do is they'll say, wait a minute, how could it be clearly established that my client violated this man's constitutional rights when he was, and he'll pull out the policy manual. When he was allowed to use it at seconds zero through 90, but you're saying the second we got to, you know, second 82, then it became a fourth amendment violation that was clearly established. Ladies and gentlemen of the jury, that is not how we want our police conducting themselves

out on the street. Oh, and it'll get even more interesting because then the defense attorney will say to his client, how many times have you heard a suspect say they can't breathe? a suspect say they can't breathe. And he will say, oh, it's an extremely common way of trying to get me to, it's an extremely common method in a criminal's attempts to resist arrest or to get me to take my hands off of them so that they can run or to prevent restraint is by saying that they can't breathe. Why would I say that? I remember hearing, I believe it was on This American Life, and talking about a police incident in Milwaukee. I believe it was Milwaukee where someone had indicated medical distress.

The police had not followed up. And, you know, I believe the suspect died. It's been a while since I've heard this. But the one thing that stuck out in my mind was the police chief was defending his officers saying, do you know how often we hear those words and how often that they're just lying to us? So the only time you ever hear words like I can't breathe or I don't feel well is when a terrible thing happens. We hear this all the time. And so that's the way the defense goes. Here's a policy. But Mr. Officer, he said he can't breathe. Mr. Officer says, you know, I probably heard that 10 times last week. So how am I supposed to know when somebody can and cannot, when the general

reality is if I follow policy, which is supposed to be designed by experts to be safe, and I had nothing unusual in that, except that this particular individual was particularly, you know, they might argue particularly had an underlying health condition or something that I didn't know about. And that's the way the defense works. I was just going to say also, you made an assumption when you were describing this earlier that a medical examiner's report will show that he died of suffocation. Right. We don't know that yet. True.

I think if it does show that, that certainly falls on one side of the scale. The police officers claim he was showing signs of medical distress beforehand when they showed up at the scene in the first place. The medical examiner's report will be very important here. Yes, absolutely. And so on, let me, let me beat, let me clarify. The medical examiner's report will be very important here to the question of the Fourth Amendment violation and qualified immunity. It is not important as to what that video shows, which is, in my view, an indifference to human life. Right. And by walking through the way a defense would work, I'm in no way saying that what we saw, in my view, that is a depraved indifference to human life at the absolute minimum.

And it's one of the most shocking— And if you're wondering, listeners, that all falls in the criminal side. Right. Right. They can be charged criminally. in the criminal side. Right. Right. They can be charged criminally. And certainly, you know, I have some questions on criminal liability when he stops moving and the bystanders are saying, check his pulse. And the officer refuses to look at him. They're saying he's bleeding from his nose. Check his pulse. Check his pulse. Yeah. And none of the

officers are looking at the suspect in the face to check anything. Yeah. So so there could be criminal liability. Here's my point. But on the qualified immunity question, that's only a question of civil liability. And it's very interesting, I think, that you and I think there may be more of a chance for criminal liability than there is for civil liability. Yeah, well, you know, I think if criminal liability attaches, if they plead guilty, I mean, if I'm a plaintiff's attorney, you're going to say, and I'm the plaintiff's attorney, you're going to say, look, it's clearly established, but the guilty plea or the guilty verdict is evidence that they violated, should be decisive evidence that they

violated clearly established constitutional rights. But they're still going to leave, the defense will still try to present this array of defenses that we've laid out here, which illustrates, in my view, how difficult it is, how truly difficult it is to gain a financial compensation when some of the most deep-pocketed litigants or deep-pocketed entities in the entire United States of America and powerful entities in the entire United States of America violate your constitutional rights. It's extraordinary the layers of protection applied to financial protection applied to state entities under Section 1983, under a judge-made doctrine which defies the plain language of Section 1983. But I've got good news. I feel like our listeners are feeling pretty depressed right now.

Here's the good news. The Supreme Court is sitting on eight cert petitions, all dealing with qualified immunity right now. And they keep rolling them over to the next conference, which is fascinating because every week I watch, you know, every however long it is, I see these cases roll over again. And there's a lot of people watching these because the assumption is that the court is going to take two, maybe three of these, and they're trying to find the best vehicle to address the qualified immunity mess. Right. And what we're going to know based on which of those eight they grant cert for is I think actually quite a bit about which way the court is headed because there are, to borrow a qualified immunity term, clear examples where it's not clearly established

and clear examples where I think a common sense reading would be that it was clearly established and they get to pick which ones they take. Yep. And if you want to uphold a broad qualified immunity, uh, you're going to take a really gray area case. Yep. And if you want a cabin qualified immunity, you're going to take a really like, you know, your previous example on dogs. Yes. Right. Exactly. So, um Exactly. So I don't think there's anyone out there who thinks they're now going to deny cert on these cases. I think that it wouldn't have rolled over this many times. So this will get addressed. And I look forward, I think we'll have cert grants here sooner rather than later. And so you and I will get to really dive into those cert grants over the summer, probably to look at which cases of the eight that

they took. Yes. No, it's going to be absolutely fascinating. Absolutely fascinating. And, you know, one of the things I'd say, this is, this is an issue that is, um, makes headlines because of, uh, makes headlines because of police brutality, but it implicates constitutional rights broadly. I spent years litigating in college campuses, and sometimes I would sue again and again and again over policies that were remarkably similar and had been struck down previously in courts all across the country. And people keep saying to me, why don't you just nail a campus with a multimillion dollar verdict and that'll show them. And I would say, look, two things are in play here. One is it's very difficult to quantify a large amount of damages

for a violation of the first amendment. What are your money damages for your inability to speak in the quad? That's a tough thing to quantify. But also, even if I could get a policy struck down, nine times out of 10, qualified immunity was going to attach as far as any kind of individual liability. And so the way I would consistently put it is that colleges have a far greater financial incentive to keep their sidewalks clear of ice and snow than they do to protect the constitutional rights of their students, public colleges. And that's just true. I mean, that's just true. And removing qualified immunity would begin to adjust those incentives. To be clear, they're not going to remove qualified immunity, but...

I know. I know. Ha, ha, ha. Okay. Proxy voting, our last case of the day. Sarah, this is your passion project. It is. It is a little bit. Okay, so this is only a passion project because I want to tee this up for later. This week, for the first time ever, the House of Representatives allowed its members

to proxy vote. Meaning, this is not remote voting, by the way. This is where House Resolution 965 from last week allowed proxy voting for the next 45 days. Nancy Pelosi can extend it for 45 days, sort of indefinitely, as long as the pandemic is going on, in her view. Proxy voting is where you give another member who is in person your vote, and this involves filing a letter or email with the clerk of the House. vote. And this involves filing a letter or email with the clerk of the House. The rules that they passed are that one member can vote for up to 10 other members, which is 11 votes per that single member, which in theory could lead to 20 people being in the House of Representatives. And that would meet both the quorum requirement and a majority of the House

in order to pass legislation. So 20 people could pass legislation as of today. That's not going to happen. I want to be clear, but it could. Right now, 71, as of yesterday, actually, 71 All-Democrats members had filed proxy voting letters with the clerk. And yesterday they took their first vote. It was 413 to one on the, uh, weaker human rights policy act of 2020, clearly not a very contentious issue, but obviously, um, Nancy Pelosi thought it was important to have a case where the proxy voting didn't matter. Right. Because 21 Republican members of the House filed a lawsuit. And it's a fun little lawsuit. It's filed in the D.C. district court. And I just I'm excited to watch it make its way through because it's so rare that we get these new novel constitutional issues. And that's if there's a silver lining to

the pandemic, surely, David, it's novel constitutional issues. Yeah. Yeah. And this is a question whether for purposes of quorum and for purposes of voting, you have to be in the well of wherever the House is meeting. And, you know, reading the lawsuit, it's pretty clear that the Constitution is written under the assumption that the members will be present when voting. That's the assumption. It's not as clear that that's the mandate, but it's written as if that is the assumption. And so, you know, it's a novel constitutional issue in one sense, but in another sense, it's reviving the old question that we've been talking a lot about is, how much is the current court going to want to be entangled?

Yeah. And this man, this is some entanglement because this is the House passing its own rules. because this is the House passing its own rules. Right, right. How much does the Supreme Court want to get involved in adjudicating how the House governs itself? Yep. And, you know, to read you just a couple pieces of the filing, in the 231-year existence of the United States Congress, basically this has never happened. Through the Civil War, through the burning of

the Capitol during the War of 1812, the terrorist attack on Washington on 9-11, through the yellow fever epidemic of 1793, the Spanish flu pandemic of 1918, the Congress of the United States has never before flinched from its constitutional duty to assemble at the nation's capital and conduct the people's business in a time of national peril and crisis. Until now. Do that in a Michael Bay voice and it's better. And they point to all of these words in the constitution, you know, presence assembly, and they just run through all of these, you know, verbs basically in article one, two, there's some amendments thrown in. It's an exciting little, uh, you know, tour through

the constitution. Um, you know, I think anyone right now would bet that they lose at the district court level and they lose at the D.C. Circuit level, most likely. The question is, will the Supreme Court take this up? And to David's point, exactly. Is this going to be Roberts Court disentanglement or, you know, constitutional fun times? or, you know, constitutional fun times? Yeah. It's hard for me. But, you know, one of the things that you I get one of the questions I'm going to have is, will this even make it to the Supreme Court or will will the proxy rules be revoked? And I suppose if there's any substantive legislation that is passed and they continue to challenge it, then it will have to be resolved. The lawsuit will have to be resolved judicially. But if there is no substantive legislation passed, I could easily imagine an argument,

uh, that the, that the lawsuit would become moot. Uh, if, if there's nothing substantive that happens other than say resolutions on Uyghurs and, and other things like that. But, uh, it's really hard for me to imagine the Supreme court stepping in here and, here. And to your point, by the way, there's also some standing issues. If none of the votes that get taken would have turned out differently but for proxy voting, that's an interesting jurisdictional question. Yes. This is where, you know, the institutionalism of Roberts, institutionalism of Kavanaugh, you know, I think starts to come into play. And to, you know, to an extent, they're not, I don't think

any of them are, I think every justice is an institutionalist to some degree. Maybe Clarence Thomas. Do you think even 0.5%? I really don't. You really don't. Okay, so I think eight of the nine are institutionalists to some degree. And this is exactly the kind of case where institutionalism, the interests of institutionalism are at their strongest. To leave the house alone as it designs its own rules. So it's hard for me to see

this lawsuit succeeding, but stranger things have happened. It's exciting. All right. Karens. Yes. Okay. So we have not really fully talked about this offline. So leaving aside Karens in general, let's talk about the Karen of the week, which is this woman in what it's called the Ramble in Central Park, an area where dogs are supposed to be leashed. It's a place where bird watchers and others go to enjoy nature. There's a woman there. She does not have her dog leashed. She has an exchange with an African-American man who's with his sister, I believe,

in which he asks her to leash the dog. She says, no, he needs exercise. He says, there's a place where the dog can get exercise. She says, it's too dangerous. And then he says something along the lines of, you're not gonna like what I'm gonna do. And he gets out dog treats, apparently to lure the dog out of the ramble. She gets very, very angry. Cue the tape rolling. And this is when the sister apparently starts recording.

And a lot of people have seen what happened next, that while she's restraining her dog in a really odd way that causes the dog obvious distress, she threatens to call the police saying that an African-American man is threatening her and her dog. She then does call the police, says that an African-American man is threatening her and her dog. Her voice, she alters her voice in such a way it's pretty obvious where she's trying to communicate that she's in imminent, immediate danger if not being attacked at the very moment. Police arrive, and I think that the gentleman had already gone.

Nobody was arrested. And she gets famous, internet famous, very, very quickly. She loses her dog, and by losing her dog, I don't mean she literally can't find it. It's that the— She voluntarily surrendered her dog. Voluntarily surrendered her dog, and don't mean she literally can't find it. She voluntarily surrendered her dog. Voluntarily surrendered her dog and then was fired from her job. And it's created one of those huge online conversations. And I'm somebody, I come into this, I'm really not a fan of internet gang tackling. I'm really not a fan of that. That's my basic... You know, when someone for the first time explains to you the gladiatorial system in ancient Rome or even some of the sports in old England, you're like, wow, that's really barbaric.

There's something less blood barbaric about this sort of tackling, but it's still a pretty barbaric thing to watch. You're watching someone verbally get ripped apart. Right, exactly. And look, the consequences for people who are gang-tackled online are often life-threatening. Not just life-threatening in the sense that people online threaten their lives, which happens all the time. people online threaten their lives, which happens all the time, or people maybe even show up at their house, or the kinds of threats that are very overt, but also life-threatening in that people are plunged into deep despair. They view often that their lives are completely ruined because anyone who Googles their name from now until the algorithm

exhausts itself, the first thing they're going to find out is that they were some villain at some certain point in time. It really is for people a catastrophic moment. And it's a source of despair. It's a source of hopelessness. Often somebody is caught at the worst moment of their lives, becomes famous by accident because someone just happened to tape it and put it on the internet. And so if I'm applying all of that background to this situation, here's where I think it's similar. Here's where I think it's different. I think the one thing that is deeply, one of the things that's deeply distressing to me about the video and even taken into context was her obvious effort to try to get the police to come arrest this man, which takes this in a level that is – it takes it up a notch from some woman who's berating people on – who's berating people for wearing a mask or not wearing a mask for a lot of the

things that you see these viral moments or somebody who's yelling because they can't get their food or whatever. It takes it to a level because they're trying to get law enforcement involved, pretty clearly trying to get law enforcement involved in a very ugly way, racializes it. Can I have this position on it, Sarah? That my position is that if I'm her employer, I don't want somebody like that working for me. I think it's entirely fair to terminate her. I also think the fact that she's going to be famous from now and forever for this one moment is too much. So does it? Right. So how do you, yeah. Yeah. How do you square that circle? Okay. Here's my version of that. A, full disclosure, I'm a bird watcher. Like I was instantly pissed off that she just had so little respect for someone at seven 30 in the morning who went to go watch birds, uh, that she, you know,

just decided that her needs trumped his needs when there were rules and she was just going to ignore them. Um, so like set aside anything else about this. Like I'm just, I'm pro birdwatcher. Uh, also her treatment of her dog was disturbing. Yeah. Um, that all being said, so, and sorry, listeners, if I talk about the impending, uhending little dude too much lately, but you know, it's hard for me to ignore it because it's literally large and in front of me. So I wrote a long letter to little dude before he's born. And I included a section on kindness and how I define kindness. And I often use the example of when I'm driving and someone cuts in front of me and cuts me off. And my instant reaction is to get angry about that, because in my view, right, they're the type of person who cuts someone off.

That makes them a bad person. And they have poor character. Probably their parents have poor character. They probably have friends with poor character, right? Because that's the type of thing that they do and that's the type of person they are. But I've cut people off, David. Usually by accident, I didn't see them. Or they were going much faster than I was. So in result, I cut them off, even though I thought that I wasn't cutting them off. Or maybe I really did cut them off, but I have to get to work and I'm going to be late for this meeting. And if I'm late to this meeting, like my meeting's really important or I'm, you know, my best friend is in crisis and I have to get there. And if you knew

that you would think it was fine that I cut you off, but I'm not the type of person who cuts people off. That'd be like, no, no, no. I mean, I'm a good person. I have good character. And it comes down to a question of grace and it comes down to judging people at their worst moment, or at least acknowledging that you don't know what moment they're in. Right. And that's where I think the gang tackling at a large scale for me is a problem because it completely ignores that you have no clue this person's life. Right. I don't know. I don't know what her day was like before this or what her life was like before this.

And maybe you listeners think that's no excuse for that behavior. It's certainly not an excuse for the behavior in the moment. I think the behavior's unacceptable. But the difference is that I think the gang tackling is about saying you are the type of person who does this versus saying that behavior can't be tolerated and you should be punished for the behavior. But for all we know, you know, you're a great, you know, daughter to your mother and you've been taking care of her full time or, you know, whatever stress and problems you may have. We all have those. So for me, it's a question of kindness. It's a question of grace. And it's saying that's unacceptable behavior to have your dog off leash and ruining

my bird watching. Well, you know, like this one, yes, I think everything you said is exactly right. I mean, taking an excerpt, even somebody at their absolute worst and using that as an opportunity for sometimes millions of people to declare that you're horrible. Not that that moment was bad, but that you're horrible. And then because of- You are the type of person who does this thing. Yep. And then because the way the internet works, it's essentially like taking that, carving it in granite tablets, putting it over your head,

walking. It's the scarlet letter. I mean, it's essentially, you're then tagging somebody with a virtual scarlet letter for the rest of their lives. Can I say one thing, though, that does really bother me, which is when these types of things happen, let me use like racially charged things happen. And the person puts out a statement that says, I am not a racist. That actually I find really off-putting in a different way because what you're, maybe this is just the comms person in me. What you should say at that moment, nobody is going to like, I'm not a racist. So I don't like, this is not in my character. No, what you should say is now watching this, I had never thought of myself as someone who carried racial animus, but I'm having to look

deep into my own behavior and my own thoughts to rethink some of my previously held opinions or whatever else. Acknowledge that threatening someone that I'm going to tell them that an African-American man is threatening me. Right. That's a problem. Not only going to tell them an African-American man is threatening me. See, this is what makes it to where I, this is what makes it to where this person isn't the same kind of poster child for internet gang tackling as some others, like people who do who say a bad joke or caught losing their temper in a particularly egregious way here by changing her voice, by racializing it. She escalated a situation which could was very foreseeable that it would cause the police to come in on a high state of high alert, which could

easily escalate, if not to a shooting, which is rare, even though we've seen it all too many times, but to a brutal kind of takedown arrest to a, you know, to a very tense and life-altering situation for the person that she's accusing of a crime. And so that's what escalates this beyond the normal, which is why I say I think a negative action should have a consequence. And I'm completely fine with the consequence being this person losing their job because their employer has lost confidence in their employee. The thing that I'm that which many people would say, well, that's the bigger punishment. No, I think the the bigger punishment is this the stain of this incident that's going to follow go with her the rest of her.

Well, for all the foreseeable future of her life. And that's what I think is beyond which that's what I'm most uncomfortable with. Yeah. And while a listener may find this to be one where you're like, well, you know, if we're going to have these scarlet letters, this is a good candidate for wearing one. To me, this is one of the most egregious, and there's a whole lot less egregious examples where there's still that sort of forever tag, if, exactly. This is not a person who's the greatest poster child for the completely unfair, misinterpreted or bad joke staining them for the rest of their lives. This person did something very wrong, very wrong, and there should be consequences for it.

At the same time, I just, you know, the scarlet letter that will follow this person for the entire rest of their lives, that's something more consequential than losing a job in my view. And I just think it's something that we as watchers of this, as commentators, and, you know, listeners, you're all commentators too. I don't mean, you know, us at this podcast, that we should feel the moral weight of that as well. Yeah, agreed. All right. Well, I can't remember a podcast when we covered more hot button topics. Holy smokes. Well, I'm going to be writing about the Section 230 issue. Just got a note from a friend of mine asking a really good question. Where are the civil libertarians today? And I think that just to wrap up the conversation, I think that's a great question because I do think the civil libertarian position is one of the most besieged intellectual

and legal positions in American culture today. Because a civil libertarian who is consistent is going to say and have to say in a hyper-polarized, negatively polarized time that my ideological opponent should win and be heard in many circumstances. And that is an extremely difficult thing to assert in an atmosphere of extreme negative polarization. Yeah. Yeah. There we are. Yeah. Indeed. Okay. All right. I think listeners are probably exhausted by this point. So a good time to end. Thank you all for listening.

Thank you again for your comments and questions. As you can see, if you keep listening to us, that in many ways are the foundation of some of our better episodes. And we've gotten a lot of good feedback from earlier the conversation on Tuesday about law school. And I have a feeling, Sarah, we're going to revisit that. Oh, we're revisiting it. I have more feeling, Sarah, we're going to revisit that. Oh, we're revisiting it. I have more thoughts.

Yes. And as someone correctly pointed out, we were talking about sort of the philosophical side of this. We did not talk about the economic side of this, which deserves its own conversation, frankly. Yeah, it does. It does, absolutely. And I have lots of thoughts on that as well.

Shocking. Thank you guys for listening. Once once again please go rate us please go subscribe on apple podcasts and we will see you next time