Advisory Opinions - Indicting Eric Adams

Episode Date: October 1, 2024

Sarah and David highlight four cases from the Supreme Court's 2023-2024 October term and a 5th Circuit case uncovering librarians’ motivations. The Agenda: —Gender affirming care ban: parents’ rights or police state power? —Free Speech Coalition v. Paxton —Psychiatric care and the death penalty —Why do we have a Utah ad? —MUSTE standards —Mayor Eric Adams and gross stuff Advisory Opinions is a production of The Dispatch, a digital media company covering politics, policy, and culture from a non-partisan, conservative perspective. To access all of The Dispatch’s offerings—including Sarah’s Collision newsletter, weekly livestreams, and other members-only content—click here. Learn more about your ad choices. Visit megaphone.fm/adchoices

Ready? I was born ready. Welcome to Advisory Opinions. I'm Sarah Isger, that's David French, and David, do you know the phrase, don't cry over spilled milk? I am familiar with the phrase. That phrase is a lie. You should definitely cry over spilled milk if the milk has spilled in the back of your car and then the next day has the smell of like rotting flesh out in a damp, dank forest.

Oh, oh, I would weep over that spilled milk because I've smelled that before. Yeah. Yeah. I've washed it with soap, hot water, then baking soda, vinegar. I assume this is all just coming from, you know, like the same bacteria that eats spilled milk also eats dead carrion

and I'm smelling their little farts or something. But I need to kill them and I am at war. Well, Sarah, you're reminding me of the joy it's when I was a parent of very young children. And occasionally I would find a sippy cup that had milk in it that had been located somewhere in the house for days, weeks, months, you would open it. And I think I'm still in therapy for what I experienced. I can like smell it in my nose. I mean, this is like a bit of a backstory, but internet's down at my house. So we had to record part of stuff in my car and like, I'm recording while smelling the horrible, horrible smell of spilled milk. So yeah, anyway, I'm now at a friend's house. So all good. Try this again.

David, we are almost at the end of OT 23, 24. People will see that written OT stands for October term. So the term starts on the first Monday in October. That will be coming up here on October 7th. That's when the new oral argument will start. If you've watched the West Wing, of course, you know the Red Mass episode. That's the Sunday before the first Monday in October. But wait, there's one more date we need to mention, and that's long conference, which

is the Thursday before the first Monday in October. And Long Conference is a funny thing because during the year, the Justices Conference, as we've talked about before on Thursdays generally, and that's when we'll then get cert grants or orders lists, things like that coming out after those conferences, we'll see relists, meaning that they didn't get to, we don't really know what happens, but something will get relisted

as the case that they were supposed to talk about. Did they just not get to it? Did they talk about it and decide to keep talking about it later? And in any given one of those, they don't talk about that many cases and which cases they're gonna talk about are listed on the Supreme Court's website.

And so your chance of getting a cert grant out of one of those conferences is relatively low because they're not talking about that many cases. The long conference is called the long conference because it has the most number of cases up for conference. It's everything that accumulated basically over the summer and wasn't brought up in a conference before then. So it's also toward the end of the oral argument season even. The highest number of cases get granted cert out of the long conference. But if your case is up for conference at the long conference, it has the lowest percentage chance of the year of being granted cert, if that makes sense. So, long time Supreme Court practitioners will do everything in

their power to avoid having their case come up in the long conference. Now, sometimes you can't avoid that because of course, there's a time limit to file for cert and sometimes you're just going to be unlucky of when your circuit court decision came out and all of that. But it will also mean that you have a lot of long conference avoidance going on. But anyway, for our next episode, when the term starts, we'll be able to talk about what came out of that long conference. And David, there's also some theories about why long conference has this low percentage chance. One is just, right, there's a some theories about why long conference has this low percentage chance. One is just, right, there's a lot of cases to get through. And so individual cases maybe don't get

all the attention when you have fewer cases, right? We've all sort of done that. The work expands to the container that it's been given. There's also, though, this fun theory about clerks, that clerks have this disincentive to recommend cert grants. And remember, the clerks participate, at least seven of the chambers do, in something called the cert pool, meaning that the seven justices split up all of the cases for cert during the year and pool their clerk resources. The cert pool, this is like the first major test, right? The clerks have been doing their cert pool memos all summer long. Remember the new batch of clerks just started in July.

And so one theory of why the long conference has fewer cert grants per cert considerations is that the clerks get cert shy. That basically they don't want to recommend for cert a case that could be a dud. They don't want to embarrass their justice by recommending a case that really shouldn't be granted. And so the clerks, and especially new clerks and the long conferences, their first conference end up being overly hesitant in their cert pool memos to recommend cert grants. And also, by the way, clerks generally, it's been found, are very hesitant to recommend

cert overall. That's been some theory of why the overall number of cases has been going down, although that shouldn't really change over time since cert pooling happened in the, I think it's the late 1970s. And yet the cases obviously have been going down a lot, even with CertPool where it is. But David, that's sort of an explanation of where we are in the term. The new clerks started in July,

there was emergency docket stuff they did over the summer, but by and large, they didn't have to decide any, you know, merits cases, things like that. And everything's been leading up to this long conference that will be, well, when this episode airs, right now. They're doing it right now. Well, you know, one thing that, I'm glad you mentioned that factor about the new clerks,

because that was sort of my, from the cheap seats view, wait a minute, you've got these young folks, mostly young, brand new clerks, relatively, you know, year or two out of law school. And they, I would have, if it was me, I would feel intimidated to say, oh, here, Justice Kavanaugh, take this case. That would be, that would be a little intimidating. But I think the way I look at long conference and the orders list and everything that comes

out of it is, do you remember back in the day when you would give your parents a Christmas list and you knew pretty sure that it was gonna be fulfilled? Like you were gonna get this stuff, you just had to wait till actual Christmas day. So I'd look at June 30th, the end of the term is like Christmas day. That's when you get all of the stuff. That's when you get all of the controversial cases.

Today is when you get part of that Christmas list, when you realize what you're about to get, you know, months later at the end of the term. And so, um, and it will be interesting because so far for this current term, there's not a lot, honestly, this, there's not a lot of cases that are being set up as really big cases. Of course, it's very, very, very, very early, but it feels like a different term than last term. So let's go through the four sort of hit parade cases of OT24. So first up, United States

v. Scrimetti. And I went to law school with now Attorney General Scrimetti in Tennessee. Interesting way that they pick attorneys general in your state, David. It is not by election. It's not appointed by the governor. It's picked by the Tennessee Supreme Court. Isn't that weird? David Tenenbaum Yeah, I actually kind of like it. I kind of like it. Lauren Henry Yeah, although so I, for all the reasons that I think appointing a judge might make more sense than electing one. I think that adheres less strongly to an attorney general, but okay, there's definitely some good things about that. But don't you see a little bit of a conflict in the Supreme Court being the one to appoint the person who argues before said Supreme

Court. So do you ever say something and then think about it nine seconds after you said it and think, oh wait, conflict. Because my first thought was, oh, interesting, a very smart, deliberative body making a decision here. And then as soon as those words went out of my mouth, I said, oh, but it's also the very smart, deliberative body that the AG are used in front of. Yeah. It's a little weird, but this case, we've talked about before, this is the gender affirming care ban in the state. And it's really gonna come down to,

is this a case about parents' rights to control the healthcare of their child, or that this is a state police power to ban certain kinds of controversial or disproven healthcare things, same as the state certainly can tell parents they're not allowed to give their child drugs or alcohol. Is it falling to that or is it more like telling parents whether they have to vaccinate their children? Yeah, it's a great, you know, in Tennessee, you cannot get a tattoo until you're 18. So that's a permanent change that's far less significant than the permanent change of, you know, so-called gender affirming care that so I, you know, it is interesting if you look at,

at state codes, you will see a lot of restrictions, everything's from tattoos to ear piercings to things like this, regarding minors. And so part of me wonders, so part of this is going to be a parent's rights issue. And then part of it is also going to be an equal protection sort of boss doc type argument. So for example, if the state permits certain kinds of plastic surgeries or that are what you might call, well, like breast enlargements, things like that, that are maybe permanent,

but not irreversibly permanent kind of procedures that actually I'm looking for the right- So in the law itself, David, Tennessee, for instance, says that if you started puberty early, that a doctor can prescribe hormone blocking drugs for someone of that gender who just started puberty early, but you can't prescribe those hormone blocking drugs for someone of the other gender who just wants to stop puberty early, but you can't prescribe those hormone blocking drugs for someone of

the other gender who just wants to stop puberty. Right. So yeah, that's... So the interesting question, I think there will be also an equal protection argument that let's say if you're a woman who wants to get a breast reduction or a girl who wants to get a breast reduction for cosmetic reasons, are you allowed to do that with parental permission? But if you get like a breast reduction for gender affirmance reasons and you're not permitted to do that, I do wonder if there's going to be an equal protection argument along

those lines. But as a general matter, the state has been given some pretty broad latitude to regulate healthcare for minors. And so, this is going to be a very, very interesting case. Next up is Free Speech Coalition v Paxton. I will read the question presented to you, David. The court has repeatedly held that states may rationally restrict minors' access to sexual materials, but such restrictions must withstand strict scrutiny if they burden adults access to constitutionally protected materials. In the decision below, the Fifth Circuit applied rational basis review rather than strict scrutiny to vacate a preliminary injunction of a provision of a Texas law that significantly burdens adults access to protected speech

because the law's stated purpose is to protect minors. The question presented is whether the Court of Appeals aired as a matter of law in applying rational basis review to a law burdening adults access to protected speech instead of scrutiny as this court and other circuits have consistently done. So David, if it feels like you're a little confused about what this case might actually be about, it's because they're not telling you a very important fact here. This is a law that says that if your website is more than one third pornographic, that you have to have age gating. You have to basically not allow minors on the website. And they're arguing that that burdens adults access to pornography. And

so the law must withstand strict scrutiny because it burdens adults access by having that age gating any gating. And of course the state's saying, no, you just need to look at the purpose of the law, which is to prevent minors from accessing pornography. And that is only rational basis review. So, David, this comes down to whether this is a First Amendment case or not. Yeah. It's a really interesting case because I was actually quite surprised that the Fifth Circuit decided this on rational basis review only. Certainly, if you're a minor challenging the law's application to you, I think the rational basis review is accurate,

is correct. If you're an adult challenging the application of the law to you, I don't see how we get to rational basis review on this. So I am very interested in, very interested in this case. And we've actually had a debate about this on the podcast where I took the position that wait a minute, age gating is completely appropriate now that the technology has caught up. In fact, the Supreme Court in striking down some of the age gating of the Communications Decency Act in, gosh, more than two decades ago. One of the reasons why it struck it down was because of the primitive condition of the technology. My position is that technology has progressed and look, if you're in the offline world, you've got to show an ID to get into a lot of these adult establishments. And so,

why is that a substantial burden in the online world and not in the offline world, especially with our current technological advancements and how we can do age gating. So this is going to be an interesting case, but I have a feeling, Sarah, you could have a situation where essentially the court just says, rational basis review wasn't right, just go do this again, which would be kind of unsatisfying. All right. Next up, Garland v. Vanderstock.

This is a gun case, but it is not about the Second Amendment. This is about what the Gun Control Act of 1968 allows. And so this is about ghost guns, those kits that you can buy where you can assemble your own gun that wouldn't have a serial number, wouldn't be registered, etc. All right. So the Gun Control Act of 1968 defines a firearm to include, quote, any weapon which will or is designed to or may readily be converted to expel a projectile by the action of an explosive as well as the frame or receiver of any such weapon. And so the question will be this new ATF guidance saying that ghost guns fall under that definition and are regulated. Can they do that?

Is that covered by the Gun Control Act of 1968? Another Fifth Circuit case, David, where the Fifth Circuit said, no, not covered by the Gun Control Act of 1968. Congress has to actually pass a law about ghost guns. That one's fascinating. Again, the definition of what a gun is, unless a ghost gun is not propelling a projectile

through an explosive, I'm very curious about this. Very curious about this one, Sarah. All right, last up is Glossop v. Oklahoma. This case has been around the block so many times. It is a death penalty case. The conviction is about a hotel manager who was murdered by the handyman. The handyman claims that he was paid $10,000 by Glossop to commit the crime. The handyman, the guy who actually committed the murder, was obviously a key witness at trial. And when asked whether he was under psychiatric

care, he said, no, it turns out he was under psychiatric care. There are so many different tiny pieces of this appeal and the questions presented, including one that the Supreme Court itself added, which is that the Oklahoma Supreme Court said that this appeal was blocked by state law. So is that an independent reason that the Supreme Court can deny it? Because the state said no.

This will be heavily watched by those who followed death penalty issues. Obviously, something we've talked about recently on this pod, David. Yeah. You know, there was something that there was a very interesting point made in response to the Marcellus Williams case that we talked about, about death penalty cases and sort of the actual innocence argument around death penalty cases. And I want to try this on to you, Sarah, and see what you think. That we are now at a stage, thanks to the increasing prevalence of DNA evidence, where a lot of the low-hanging fruit of actual innocence, in other words, these folks who were in prison

and, for whatever reason, DNA or modern medical and modern criminal investigative technology had not been applied to these cases, you're able to reopen them, exonerate people who had been on death row or sitting and rotting away in prison unjustly for years and years and years, that a lot of these cases that are legacy before the widespread use of DNA evidence and other kinds of similar evidence have been disposed of. And what we're dealing with now is a lot more of the cases where it isn't like the Marcellus Williams case.

It wasn't like the DNA exonerated him in a way that other big DNA finds have. It's just that we're now in this arena where a lot of the more contentious cases are cases where there's just this accumulation of a thousand cuts. In other words, there's this problem with this witness and this problem with that witness and this problem with that witness and raising the question of how many problems can you have before you're going to actually put someone to death? And I think that that's where a lot of the death penalty argument is heading. Not to say that there won't be circumstances in the future where somebody is absolutely

exonerated by technological breakthrough or application of existing technology, but we're moving into a world where perhaps the contentious death penalty cases are going to be much more the sort of the death of the case by a thousand cuts and how many cuts are needed before you're going to finally say it's just too scary. That's just too, we just don't, we just don't execute people under these circumstances. And sorry, I misspoke. Glossop was the manager of the hotel. The murder victim was Barry Van Trees. He was the owner of the motel. So you've got the owner as the murder victim, the manager who was convicted of paying $10,000 to the handyman to kill the owner of the hotel. But David, like you said, this isn't really attacking. this isn't like a, if correct, he's proven innocent.

Right. It's that this person was asked about his mental health and whether he had seen a psychiatrist. And he said no, and it turns out he had, which is, you know, pretty collateral to the underlying question of conviction. And it's really about whether the jury, if they had known that he had seen a psychiatrist, if that would have substantially changed the possibility of conviction or the imposition of the death penalty. Glossop has faced nine execution dates at this point.

The murder happened in 1997. This case has gone up and down and up and down on any number of different attacks on the execution. And David, I guess, you mentioned the death by a thousand cuts, but what if those thousand cuts are really just about people being against the death penalty more than they're about actual innocence, for example? Yeah. I don't think there's any question that some of that is occurring. That but I also think that there is a sort of conceptual issue here, which is, OK, wait a minute.

When you when you say proof beyond a reasonable doubt. As if you're sitting in a jury, you're told that is not proof beyond any doubt. It's just proof beyond a reasonable doubt. And so what you're going to have in almost any conviction are you're going to have some basis for doubt. There is going to be some basis for doubt that exists in almost any criminal trial. And so the jury is trying to grapple with this idea of what is beyond a reasonable doubt. And so often what happens is on appeal, the elements of the case that were some basis for doubt are really amplified, amplified, amplified to the point where you get sometimes

an incomplete, a woefully incomplete picture of the total evidence in the case. And so I do think that that is one thing that happens. But also, death penalty cases are cases where even after the case is over, people tend to go back, reinvestigate, take a second look and a third look and a fourth look in a way that they don't do, let's say, if somebody is convicted and sentenced to life in prison. And so what often ends up happening is these cases get pulled at and pulled at and tugged at for years afterwards, and often they can't withstand the tugging and the pulling. So that-

I guess my problem with this case and so many death penalty cases is this went in the wrong order, so to speak. So, for instance, his first conviction is thrown out for ineffective assistance of counsel. Right. Okay. So then he's convicted again and sentenced to death again. Then he basically attacks the drug protocol and says that that would violate the cruel and unusual punishment clause of the Eighth Amendment, that causes a whole situation for death penalty cases across the country about the drug protocol and which drugs are available because also there'd been a tax on various drug companies

for providing these drugs. So that was three successive stays of execution due to questions about the use of potassium acetate instead of potassium chloride. Okay, so now he's attacking that the main witness against him lied and was under psychiatric evaluation at the time he was asked that, that should have been first. You know what I mean? Right, right, right. Yeah. And so it's like, well- Of course, depending on when it was discovered. No, you're totally right. And yes, this seems to have been discovered in 2015. But like,

we already did another trial and he was convicted again. Now we did the delay over the drugs. Now we're going back and looking at actual innocence claims. This is no way to run a railroad. Right. You know, even proponents of the death penalty are highly critical. Smart and thoughtful proponents of the death penalty are highly critical of the way we do this and. You know at some point. You know the question for me the question is not is the death penalty. Inherently unjust i'm not in the camp with say the catholic church who says that the death penalty.

who says that the death penalty is inherently unjust. My issue is the way we do the death penalty in the United States of America has become or always has been, has always had deeply unjust and arbitrary characteristics to it. And when I was much younger, I did not see that. I was not exposed to that argument. I grew up, as I've said many times, I was much younger, I did not see that. I was not exposed to that argument. I grew up, as I've said many times, I was this law and order conservative in the Reagan era. And it really took going to law school, it really took diving into what criminal law is actually like in the United States of America, to see the elements of injustice that have been inherent in the death penalty system from its inception,

really, and the arbitrary way in which the sentences are often imposed and the ways in which social class and race come into it in a really dramatic way. And I'm not sure, Sarah, I could be completely wrong about this, but I feel like we're in a spiral on some of these cases where an increasing percentage of engaged Americans are saying, just like you said, this is absolutely no way to run a railroad. We can't be having a system like this that is deciding whether men live or die. I don't know how long we'll keep going with this tension. All right.

Those are the four cases that we wanted to highlight before OT24 kicks off next week. There will be more cases, trust us, that we will talk about the oral arguments for, et cetera. There are several administrative law cases. There's an interesting case on Facebook and the Cambridge Analytica data breach. So, believe me, plenty more, but those are the four worth highlighting today. David, next up, Oren Kerr had an interesting tweet in which he heard an ad on this podcast had an interesting tweet in which he heard an ad on this podcast in which the state of Utah is talking about a case that they have up for cert at the Supreme Court.

And he was asking, why would Utah run an ad about that case saying maybe clerks listen to the podcast and it's sort of a pitch to have them take another look at that cert petition. I thought it's really interesting. I don't have a great answer for that, David. Yeah, I don't have a great answer for that either, to be honest. Yeah, you know, it is, unless you know you're raising awareness of Utah's position sort of for political reasons, unrelated to a cert grant, a sort of trying to raise goodwill towards the state of Utah in the, you know, in the community of advisory opinions listeners,

which includes judges, practitioners, professors, and law students, and a surprising number of much younger listeners going all the way to high school who are law curious. So I'm not, I can understand sort of a desire to reach that audience with legal opportunities and legal arguments strikes me as extremely small number of people who are relevant to hearing that ad

regarding a cert petition. But yeah, I don't know, it's a great, it's a cert petition. But yeah, I don't know. It's a good question. All right. Next up, this is the Fifth Circuit En Banc that I've been wanting to talk about. It's the Larry the farting leprechaun case. So the oral arguments just happened last week.

And this is about the local librarian removing certain books from the local library. And it really comes down to whether, you know, because look, the library cannot hold all the books in the world. So someone has to decide which books go in the library, and someone has to decide when some books need to come out of the library so that new books can come in the library. to come out of the library so that new books can come in the library. The question really is going to be, is library curation government speech, in which case they get to do whatever they want and remove books how they see fit? Or is the choice of library books more like a limited public forum where you can have content restrictions.

We don't have books with nudity in them, for instance, but you can't have viewpoint restrictions. We don't have books that deny the Holocaust, but we have books that talk about the Holocaust, for instance, would be a viewpoint restriction. David, the panel, the reason this went en banc is because the panel said that basically the librarian's motive is what matters here. If the librarian was removing books because they were old or not checked out anymore, fine. But if the librarian was removing books because there had been complaints about those books, not fine. That is not how the Audubon court with all of the judges on the Fifth Circuit were really seeing this.

The NetChoice case was brought up a lot. This was, of course, about the curation of feeds and that Texas law that was trying to limit how social media companies could curate and have algorithms to curate their feeds. And the Supreme Court, you know, without deciding the case, of course, said that curation was actually speech. And so you saw Jonathan Mitchell, who was arguing on behalf of the government, the library in this case, saying, yep, apply that here. Which is pretty funny, David,

because if you remember, the conservatives are the ones who didn't want curation to be a form of free speech in that net choice case. Now they do want it to be a form of free speech when it's library and curation. I don't know, it was an interesting argument, David. Yeah, it's a really fascinating case because I think you highlighted the tension right

at the beginning. No one thinks that your average county library or school library or even library anywhere else aside from the Library of Congress of the United States of America can hold all of the published works that exist. So curation has to happen. It just has to happen. But what if somebody says, okay, well, curation has to happen. So what that means is no books by non-Christian authors. That's going to narrow the field a lot. And then no books by Christian authors who are libs. I mean, I'm coming with a ridiculous hypothetical to sort of show, wait a minute, there's curation and then there's curation. And what's fascinating about this case is it's not taking being argued in a vacuum, that there is a Supreme Court case out there

called PICO that we have talked about in the past that sort of hovers over this decision, but not in a super helpful way. Because you and I have talked about this case, there's a couple of things about Pico and the facts of Pico, just to remind people. There is a nothing new under the sun sort of fact pattern. We think book bans, et cetera, or book limitations in libraries are new. So some families go to a conference, this is in the 1970s, New York, I believe.

They go to a conference, they learn about all of these un-American books, quote, un-American books. So they come back to their local school board, they say, do we have any of these un-American books in the library? And lo and behold, they have some of those, quote, un-American books.

They decide to remove them for at least a little bit of time. Case goes up to the Supreme Court. It's challenged. Case goes up to the Supreme Court. And there's just a bunch of competing opinions, but there's a plurality opinion that basically says, look, curation is a real thing. Curation has to happen, but you can't systematically exclude viewpoints. So you can't say, no books by black authors, no books by communist authors,

no books by Hispanic authors. So systematic sort of viewpoint discrimination, no, curation, yes. That's not super helpful, Sarah. That's not super helpful. And so you're honestly in a world in which there's no real clarity on this underlying issue from the Supreme Court. So it would not shock me at all if this made it up to SCOTUS because the PICO case just isn't the final word on this issue. It is not a case that is like a, you just throw that down like on deck of cards on the table and say, you know, I win. It's a very confused case. And in fact, the, I'm going to get the name of this wrong, the National Librarians Association or whatever has standards in which they suggest that librarians remove books. I believe they're called the musty standards, M-U-S-T-E, and that's an acronym. So like M stands for misinformation.

Well, who gets to decide what's misinformation now? Is Pluto a ninth planet? Is that the line? Or is outdated racial stereotypes? Is that a reason you can pull books off the shelf? The National Librarians would say, yes. So pulling Huck Finn may be okay under those standards, but how does that then square with pulling Tango Makes Three, for instance, a book about two male penguins raising a chick and people wanting to pull that off the shelf? There was a library, sorry, I actually think it was a school district up in Washington or Oregon, apologies that I mess up those two states sometimes, in which they wanted to remove To Kill a Mockingbird for outdated racial stereotypes.

What I guess I always like about these types of cases, David, is that both sides are going to get their oxes gored potentially. Yeah. Like if you were removing books for outdated racial beliefs and they want to remove books for things that they think are not socially accepted beliefs in their community. Okay, so we're doing that or not? So, I think this is interesting because it doesn't fall particularly neatly around culture war lines, even though I think everyone wants it to, which also annoys me. People want this

to be the right is removing Larry the farting leprechaun because they're book burners and the left is just for free speech. But that's not at all what's been happening in libraries. There's all sorts of books that have been being removed under, let's call them woke library guidelines. So whatever the Supreme Court says here could actually impact all of that stuff. And by Supreme Court, of course, I mean the en banc Fifth Circuit, which will then be appealed to the Supreme Court. And I agree with you, David, I think there's a high likelihood of this. There's one problem with this case, and that is that there wasn't really a very good finding at the lower court about these books that were removed.

So Larry the Farting Leprechaun was removed, I guess, because it's gross. There was also a book called Midnight Kitchen where there was a drawing of a naked child. That, for instance, could all be content-based restrictions, not viewpoint restrictions. And I don't think anyone's saying that there's a content-based restriction problem here. Remember, as I said, content-based restrictions would be nudity or violence versus the viewpoint of racial stereotypes or gay marriage, things like that.

And again, I mentioned the Holocaust because if we're going to say you can't remove, you must carry books regardless of viewpoint. You could end up with some interesting books on the Holocaust in your library. Another distinction, of course, that I just touched on is the difference between removing books and getting books for that library in the first place? Is there a difference there legally that once you have the book, then you can't remove it unless it's simply out of date or the pages are worn or it's not readable? Or do the same rules that apply in removing books also apply to getting the books in the

first place or replacing the books? Let's say Huck Finn is just super worn out. Do you need to get another copy of Huck Finn? Or can you just decide, look, that fits the musty standards. The book is torn and it's not readable. So we have to throw that book away. And now I'm just not going to replace that book because I think it's outdated racial stereotypes. These are hard questions. It's really hard. So here's the key language from the PICO case. And when I read it, you'll understand the logic of what they're getting at,

but moving from the logic of what they're getting at to the execution, to the what's the actual standard here? Man, it's tough. So it says, petitioners rightly possess significant discretion. Petitioners, in this case, this is the school and librarians, et cetera. Petitioners rightly possess significant discretion to determine the content of their school libraries, but that discretion may not be exercised in a narrowly partisan or political manner. If a democratic school board motivated by party affiliation ordered the removal of all books written by or in favor of Republicans, few would doubt the order violated the constitutional rights of students denied access to those books. The same conclusion would surely apply if an all-white school board motivated by racial animus decided to remove all books authored by blacks or advocating racial equality and

integration. Our Constitution does not permit the official suppression of ideas. Thus whether permission petitioners removal of books from their school libraries denied respondents their First Amendment rights depends on the motivation behind the petitioner's action. If petitioners intended by their removal decision to deny respondents access to ideas with which petitioners disagreed. And if this intent was the decisive factor in the petitioner's decision, then petitioners have exercised their discretion in violation of the Constitution."

So this actually seems to be saying, and again, this is a plurality opinion that, hey, look, if we find evidence here that you're saying children should not be exposed to this idea, you lose. But then it goes on to also say, interestingly enough, Sarah, on the other hand, respondents implicitly concede that an unconstitutional motivation would not be demonstrated if it were shown that petitioners had decided to remove the books at issue because the books were pervasively vulgar. Okay, now that gets interesting. So a lot of the arguments around these books is a vulgarity argument that, you know, not

necessarily the farting leprechaun, although I guess some people would call that mildly vulgar. I don't know. But some of the argument around these books is that they're pretty graphic, like you were talking about the new drawing, etc. Some of the books that have been removed from the libraries are pretty graphic. So that would seem to fall under the vulgarity exception or the vulgarity argument. But again, one person's vulgarity is another person's definitely not vulgarity. Yeah, like I said, this case is, it's kind of,

and we have talked about it at length, and we talked about it when all of this kicked off. And I think you made the point that this case would not come out the same way in the current court. So that line, the paragraph that you read from Pico, I think really highlights the difference between the Supreme Court as it was in the 1980s versus now, not against any ideological background, though, again, I'm

not saying the court hasn't changed ideologically, but just look at how they're deciding that case. It's a standard. It's not a rule. It's a sort of, we know it when we see it. The word vulgar, it's much closer to what I think Justice Breyer was trying to describe in his book about, you know, we've talked about living constitutionalism and that that is largely gone. And Sharif Girgis, when he was on, mentioned pluralism. Something more like pluralism, like, well, there's these 10 factors and we're just sort of looking at them all and we're considering them the best we can.

And this is where judgment comes in and we're nine smart people. And so, yeah, this is how this case comes out. And these are the things you should consider lower courts when you look at these in the future. We can't give you a bright line rule. And I think today's Supreme Court sees that as too much unfettered discretion, both to Supreme Court justices and to lower court judges. So they really try to give bright line rules.

And of course, the problem with too many bright line rules is that they're either too narrow or they're too harsh or they fail to take into account future exceptions or fact patterns that weren't considered. And so neither system is perfect, but boy, you can really see the difference between the two systems, I think, when you read that Pico line, something that would never be in a Supreme Court decision today, even from the liberal justices.

Because again, I don't think this is an ideological difference. I think it's more of a, I hate using this term, but professionalization of being a Supreme Court justice, the types of people that we're picking and how they view their jobs, which I've tied into why the number of merits cases has gone down. Because of this quote, professionalization of Supreme Court justices, they now look for perfect vehicles where they can create those bright line rules that will decide 50 cases,

not three cases in a circuit split, or just one case that's sort of vaguely interesting. And so the number of cases goes down, those bright line rules go up, the narrowness of the decisions goes up, and you're never gonna see language like that that we just read in PICO again. Yeah, yeah.

And again, like, let me keep going here because it just gets a little bit more vague. It says, and again, respondents concede if it were demonstrated that the removal decision was based solely on the quote, educational suitability, unquote, of the books in question, then their removal would be perfectly permissible. So here's what's perfectly permissible. To remove books if they're pervasively vulgar and to remove books based on educational suitability, but not to remove books based on the transmission of ideas that you don't like. I think it's very, I think that distinction makes sense until you start to dig down into the specifics of each case, where one side

is going to be saying, this is educational suitability and vulgarity. I mean, this is like these books are not age appropriate. For example, that's a educational suitability type argument. These books are too graphic. That's a vulgarity argument. And they're often answered by saying, no, no, no, no, graphic, that's a vulgarity argument, and they're often answered by saying, no, no, no, no, no, pull back the curtain on this, and what you actually have is you just don't want

pro-LGBT ideas in school, for example. And so, this standard, as articulated by Pico, it's one that I think is if you're making, if you're standing up at a school board meeting at your time at the mic, Sarah, and you're saying, here's how I think you should exercise your discretion against vulgarity, make sure it's age appropriate, educationally suitable, but don't try to eliminate all ideas you disagree with. educationally suitable, but don't try to eliminate all ideas you disagree with. That's a kind of a policy argument that I think is a very fair way of making the distinction that you then you then you ask the policymakers to wade through.

It's very hard as a legal rule. It's very difficult as much sense as it sort of makes when you say it out loud as a legal rule. It's very difficult to apply, which is why we just keep having these debates and distinctions. Well, and also, where's the First Amendment interest lie? Is it the person walking into the library who has a First Amendment right to certain books? But then we already said the library can't contain all those books, so that doesn't quite

make sense. It's certainly not a First Amendment right of the author. You don't have the right to have your book in the library. Is it a First Amendment right of the government to curate books for a public library? That's the curation argument, right? That this is government speech, no different than Joe Biden expressing his view on some issue, and that that's what the librarian is doing on behalf of the government, in which case they can do whatever they want, liberal or conservative. And that's something that Pico never really answers. What is the First Amendment interest? Whose First Amendment interest? Is this government speech? What is curation? Is that First Amendment protected? I mean, so many

things that they didn't answer because you're right, David, they were really just giving sort of a breaking up a fight on the playground fairness argument. Well, there's also embedded in this idea, okay, wait a minute, this, do I have a right to receive ideas as a student? So this is actually been something that's been litigated post PICO because the plurality in PICO seems pretty clear that, hey, if I'm a student, I have a actual right to receive ideas. And that is not the same as sort of the moody net choice argument, which nobody is saying that this argument that if a private organization says A or B or C, but doesn't say D, I have a right to hear D from private citizens.

This is saying, well, wait, there is a government in charge of education, and if it's systematically withholding particular ideas because it disfavors them, is that violating a sort of inherent right to receive ideas in the government run educational process? And that has been- Yeah. So in school, in your AP history class, the government does not teach you Holocaust denialism in its full throated nature. Right. Do you have a First Amendment right to be taught Holocaust denialism? Because they are

not teaching you that because it is a disfavored idea. It absolutely, that's why. No, and no, I just don't think anyone thinks that a student has a First Amendment right to every counter argument for every idea that could be taught and same in the library. I would think because again, not because again, from a policy standpoint, I have no problem with Holocaust denial books being in the library for what that's worth. But do you have a First Amendment right to that book? Why? Just like, I guess I don't totally understand a First Amendment right to information because we can't give you all the information. There's not enough time, there's not enough library shelf space. So there is some curation going on. I don't know. I'm pretty persuaded by the

government speech argument, if you can't tell that like, it's someone's speech and I think it's the government's. At the same time, but here's the question for Sarah. When the PICO court said, and I'm persuaded by this from the PICO court, if the government said no books by black authors, no books by black authors. no books by black authors. I think that would raise a different problem, not a First Amendment problem. I think that would raise an equal protection problem so that the government speech in question

would still be government speech, but the government action would also violate the equal protection clause. Same for no books by democratic authors, no books by Republican authors. No, I think that would be fine. That'd be fine. And to be clear, I don't think the government can prohibit the publication of those books, obviously, but I think they cannot put them in the library. Interesting. Okay. Okay. Interesting. We're off to the races.

Last up, David, I want to talk about the indictment against Eric Adams, the mayor of New York. This is another bribery indictment. We have talked a lot about these in the past, but I'll just run through the history really quickly. Ted Stevens convicted by the Department of Justice right before his election. He loses the election narrowly. That conviction's overturned. The judge says it's the worst case of prosecutorial misconduct he's ever seen. Let's fast forward to Bob McDonald, the governor in Virginia. He's convicted. That conviction is overturned by the Supreme Court saying that quid pro quo bribery has to show the connection between the quid and the quo. You got the

money to do a thing. In this case, fur coats, watches, whatever. You got the benefit. And it was for the purpose of some official act. And the Supreme Court has been really narrowing its focus on that, that it's not enough to prove atmospheric grossity, if you will. Yes, that's not a real word, I know. We get it though, we understand. In just the case from last term about bribery versus gratuity, right? They said a bribe is the thing that has to happen before.

Here's the money, now do this official act. If you do the official act and then get money afterwards, that's not bribery. You may be able to prosecute that under state law, but under the federal bribery statutes, sorry, no, the Supreme Court said. So here comes the Eric Adams indictment. And boy, is there a lot of grossity. Yeah. Lots and lots of gross stuff. He's getting straw campaign donations, lots of airline upgrades from the Turkish government and Turkish government related entities. But as James Burnham and

Yaakov Roth, who were the defense attorneys in the Bob McDonald case, point out, when it comes to the bribery indictment, not the campaign finance violations, that seems like what it is. But on the bribery indictment, which is certainly the most serious, the quote is that he sped up the fire marshal approval for a building to open in time for a high ranking Turkish official to be at the building. And they're sort of right. Like, really? They've been paying this guy off since 2015 and all they got was like fire marshal approval for a building. That doesn't seem like it makes a lot of sense, just common sense. Also worth noting that Eric Adams,

defense attorney in this case, will be Alex Spyro, classmate of mine and friend of mine in law school. But Alex Spyro is at this point, the defense attorney that you want in any case. He has done Elon Musk, Alec Baldwin, P Diddy, all of it, David. So they're bringing in the heavy hitters for this Eric Adams case. And on the campaign finance stuff, I'm not convinced there's much they're going to be able to do there. On the bribery part though, A, the Department of Justice has a track record of getting out over its skis on these bribery cases. B, the actual what the bribe was for seems not big enough.

It doesn't make a lot of sense that you'd pay a guy this much money. And in fact, it seems like something public officials do a lot. They try to skip bureaucratic red tape when a foreign government official is going or for any reason, they might get a phone call to skip that red tape and do it with or without money and airline upgrades. So yeah, I mean, there's a whole lot of folks who really want to dunk on Eric Adams. Oddly, I think I'm one of them because of the campaign finance stuff and the matching funds that he was lying about. But on the bribery part, I don't know that they got it. Yeah. As you said, let's be clear, we're not defending

the behavior from a moral standpoint. It's real gross. It's super gross. It stinks. Same with the Bob McDonald case, by the way. It was gross. There's a reason why he doesn't really have a career now, even after he won at the Supreme Court. It was not criminal, but it was super gross.

But to understand why this is difficult, again, let's sort of set up the paradigmatic. Here's the easy case for bribery. You've got a Turkish person on the phone with Eric Adams saying, hey, we need you to hurry up with the fire marshal. And he says, no, I really can't. I don't interfere with fire marshal's operations. That's different silos. I don't do that.

Why are you $1 million and pay your child's tuition to Columbia? Done. I am calling the fire marshal. If that's the sequence of events, then okay, yeah, bribery. Well, let's say it's different. Let's say you've been giving, you're the biggest donor to the mayor and you've been the biggest donor for five, six years. Maybe you've channeled a million dollars into his reelection campaigns or his election campaigns. And you've hosted fundraisers, you know him personally,

and you call and you say, hey, Eric, long time no talk. I got a favor to ask you. We got an issue with the fire marshal. And he says, oh, Bob, great to hear from you. How are the kids? I'll take care of it. Bribery?

No, No. Especially if there's five other cases where he did similar stuff. Exactly. He's constantly like, oh, this fire marshal is so freaking annoying. Let's skip it five other times. Right. Exactly. Now, is it gross that somebody who's given a million dollars over the course of five or six years has the mayor on speed dial and can get a favor done like that. Yeah, there's a lot that's gross about that considering, you know, the idea of, you know, a class of citizens who has immediate access to public officials while the vast majority of us don't do not. Yeah, super gross, something that voters should

take into account when they're voting. Is it bribery? No, it's not bribery. And that's the, you know, I think that that's the distinction is that the Department of Justice has been seeing gross stuff involving money and making a bribery case out of it. When the reality is, if you really thought through the logic of the bribery case and sort of the logic of their argument, it would call into question sort of private campaign donations in general. Like, when is it that you're giving a donation in the hopes that you are going to influence a politician versus when are you giving a donation just because you know the politician already agrees with you

and you're reinforcing their agreement. And these are really difficult things to discern. And I think, again, there's a difference between determining something's gross and we can all use our common sense and intuition about what that line is for grossity, but that's very different than jail time. Yeah.

Because at some point it becomes vague to your point, David. If we can't really determine where that line is, then how is the politician supposed to know where that line is? And again, far be it from me to defend these folks. I don't like this. But the criminal law should be very narrow and very clear about what is a crime versus what should be unrelectable by the citizenry. Yeah.

I mean, there are so many institutions, organizations, corporations, trade associations that give money to both sides of the political divide. They donate to Republicans and to Democrats. And the reason for that is pretty obvious because they want to be able to pick up the phone and call whoever is in the seat. They want to be able to pick up the phone and call, have a relationship with whoever is in the seat. Gross? Yeah. Bribery? No? I mean, so yeah, I think some of these bribery cases get perilously close to calling into question

the system of private campaign donations itself. Yeah, I'm super interested on honestly, Sarah, in listening to some of the, or reading some of the listener's comments on this. How do you draw that line? How would you draw that line? And I'm sure there are some listeners who go, yeah, private campaign donations are bad. We should just do public financing, period.

But it's a very interesting argument in the journal. It was where we were really turned on to this argument in this discussion by a Wall Street Journal piece. Very interesting. And we'll put it in the show notes and love to hear y'all's thoughts. All right. And with that, we conclude another episode of Advisory Opinions. Let me give y'all a little rundown of what's to come. Next episode, we're going to have Cannon-Shammigan's speech defending the institution of the Supreme Court. And then October 7th, we are at the University of North Carolina Law School and Duke Law School. We'll be at Duke Law School with Judge Roy Altman as well. And David, we've got topics we've left on the table. I want to talk about how the acting

attorney general process could go in the next Trump administration and a little vacancies reform act fun. I also got an email from an expert on parking meters in downtown cities and the law of chalking one's tires and Fourth Amendment searches. Can't wait to talk about that. Who knows what else? Plus, again, we'll start the Supreme Court turn and we'll have oral arguments to start talking about here next week. OT24 starts one week. Ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh,