Advisory Opinions - Saved By Cert

Episode Date: January 19, 2023

The Supreme Court saves the day (or at least, this episode) with a slew of last-minute cert grants. A consolidated immigration case; a legal battle between a 93-year-old woman and the state of Minnesota over a foreclosed condo; a search for the line between free speech and death threats; and, for good measure, David lets out a bee that’s been buzzing in his bonnet since law school over a religious accommodations case. Plus: so long sans serif! Show Notes: Pugin v. Garland, Garland v. Cordero-Garcia Tyler v. Hennepin Counterman v. Colorado Groff v. DeJoy McSweeneys: I'm Comic Sans   Learn more about your ad choices. Visit megaphone.fm/adchoices

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Ready? I was born ready. Welcome to Advisory Opinions. I'm David French with Sarah Isger. And maybe we should just call this one Thank You, Supreme Court. Because we had nothing for a podcast. We were slacking back and forth. And there was a Deseret News article about a former Supreme Court justice that was kind of interesting.

Pretty interesting. We were wondering, are there questions in the comments that were particularly noteworthy? We were scrambling. Then, Sarah, the Supreme Court comes through. Grant cert in multiple cases, including two that I'm particularly interested in. And then we have a little bit of a appellate Twitter drama. But why don't you walk us through the Supreme Court cert grants with an attitude of gratitude for salvaging our podcast. And there's two in particular I want to drill down on. Both of them, well, one is involving free speech.

The other one involving religious accommodation. So speech and religion, two of our favorite topics on advisory opinions. But yeah, what all's happened, Sarah? Well, we've talked about conferences and relisting before. And it was sort of a relist-a-palooza the last few weeks. And then, boom, eight cert grants with actually 11 cases, several consolidated cases on that.

And lots of good ones. And don't forget, we're getting to the end of cert grants that will be heard this term. In fact, I would say that we're within the week now where any cert grants over the next two weeks could really go either way. And don't forget, we have those social media bill cases in Florida and Texas pending in conference. So even if those get granted, coin flip of whether there'll be this term or next term. And that's just a super interesting question because they already have all of these tech'll be this term or next term. And that's just a super interesting question because they already have all of these tech cases for this term. So if you're the Supreme Court

justices, do you want to have sort of the tech term and make sure that additional tech cases get heard within the same term or sort of let that ride for a little bit and push them to next term? I think there's really good arguments on both sides of that, which we've talked about before. But these were some fun ones, David. And we have been watching a few of these. We've mentioned a few of them when they were down in the lower courts. And here they are. They've made it to the major leagues. So we're going to talk about four of the eight. And apologies to the other four cases that we're not talking about. The False Claims Act case, the Sovereign Immunity case, Racketeering Influenced and Corrupt

Organizations Act. You know what? We may get to you if the arguments are awesome. But today. Yeah, you're going to have to step it up in the arguments. We want to see some big stuff in argument i don't know i kind of want to go in reverse order here so actually i'm gonna save your fun cases for the end the first case is a consolidated case on an immigration question that i find really interesting so first guy is a citizen of maitius. Is that how you say that country? Mauritius? Someone will tell us. I'm terribly embarrassed. I didn't do very well in high school geography. I'm going with Mauritius. Okay. He's lived in the United States as a lawful permanent resident for 40 years,

but then pled guilty, actually, was convicted of being an accessory after the fact to a felony. Now, if you are convicted of an aggravated felony, there is mandatory removal from the country. And one way in which you know something's an aggravated felony is if it's an offense relating to obstruction of justice. Okay, so let me tell you about number two, Guy, because I said this is a consolidated case. A citizen of Mexico, lawful permanent resident since 1965. Wow.

Was arrested in connection with sexual assaults of patients whom he treated in his role as a psychologist for Santa Barbara County, convicted in state court on several charges, including discouraging two witnesses from reporting a crime. Same thing. He's under removal orders because it's an aggravated felony because that's an offense relating to obstruction of justice. So at the Supreme Court on this one, they've granted cert because the question here is whether obstruction of justice. Has to be about an ongoing proceeding, because you'll notice in these two cases, discouraging a witness from reporting a crime, that's not what we would generally have called obstruction of justice, David. Lying to investigators, misleading prosecutors,

that's an ongoing investigation or official proceeding that you're obstructing. But if you're just discouraging a witness from reporting a crime, clearly you're doing that in anticipation of a proceeding. Is that enough to be obstruction of justice? And same, of course, with the accessory after the fact to a felony. Again, imagine the situation where, you know, you help hide the guy as he's running away from the bank robbery. You're an accessory after the fact, but that's not necessarily obstructing an ongoing proceeding. Right. I think that'll be pretty interesting. And so here, of course, not surprisingly to people, we have a circuit split on this question.

You know, I think these criminal process and procedure questions are really interesting. And David, you and I tend to think the tie goes to the runner. Right. In this case, the Supreme Court rejected as a QP question presented on that cert petition, whether offense relating to obstruction of justice is ambiguous. So this will, in fact, not look at that, but really only whether obstruction of justice has to relate to an ongoing proceeding or the anticipation of an ongoing proceeding is enough. And the consequences, as I said, I mean, you know, one guy got 12 months in prison, nine of which were suspended, but he is under mandatory removal from the country after being here for 40 years. So high stakes for these defendants who are lawful permanent residents.

You know, this isn't someone on a student visa or something. So that's number one. Thoughts, feelings? I don't have many thoughts, feelings on that one. I think it's interesting to bring it up. Barely. Barely interesting enough to bring it up. You're barely interesting.

You are barely interesting, Garland Cases. The next one, I'm actually quantum levels more fascinated by. And this isn't one of the two. That's right. Tyler v. Hennepin County. That one. I know. I know you'd be into this one.

Okay. So this will have some aroma of Kelo, I think, for listeners who have been following the Supreme Court for a long time. Kelo, of course, is that takings case where they condemn an old woman's property and take it for public use, basically saying it's

a nuisance because it could be better used, frankly, for sort of commercial value. It was a blight. And there was a lot of controversy over that because in the end, they said that, yep, the local city council can take that property under its blight statute and that that meets the Fifth Amendment requirements for a taking for public use, even if it's commercial public use. So why do I say this has aromas a kilo? Well, we've got another old lady, 93 years old, in fact. She fails to pay $2,500 in her property taxes. And then through fines, interest, penalties, the number goes up to 15,000.

Right. So they seize her house and foreclose upon it, then sell it for $40,000. It's a condo actually. So she owed them $15,000. They sell it for $40,000. And what happens to the remaining money, David? Well, they kept it, Sarah. They kept the money because under Minnesota law, that's exactly what you do when you don't pay your property taxes. That's actually not against you.

They can't move against you, David. It's NREM, as in they move against the property, which I know is this for non-lawyers, NREM stuff is so dumb sounding. It's why you see case names that are like, you know, Hennepin County versus 40 red trucks, because you're actually suing the property. It goes way back to the common law. We don't need to get into property law and NREM suits right now. But the point is, because they move against the property and the property is forfeited, the title belongs to Hennepin County in this violates the takings clause and, fun little twist, violates the excessive fines clause of the Eighth Amendment. That, you know, she owed $15,000.

You can sell, you can take the property, you can sell the property, you can take your $15,000. But anything above that is an excessive fine violating the Eighth Amendment. David, what say you give that woman her twenty five thousand dollars i i think this is a uh fascinating case um i i the seizure of the additional twenty five thousand dollars um that, that's an excessive taking. I mean, if you owe $15,000, if you owe $15,000, you don't owe $40,000. In this case, they sold to satisfy the debt to $15,000 and then just take $25,000 in a windfall. Now, I do think that they could say as a matter of statute that you if it's 15 000

and we sell it we should recoup the 15 000 plus whatever costs were incurred in the sale whether it's like an auctioneer or transfer that's included i believe but yeah yeah so i mean remember she only owed 2500 in property taxes oh property taxes. Oh, gosh. Yeah, I know. This is also another illustration of how the system of fines and penalties really can impoverish poor citizens. Pacific Legal Foundation actually cites in their SERP petition a case where the property was seized over $8. Like the initial nut was an $8 unpaid fine. Right, right.

And oh man, Sarah, okay, this is trigger warning. There should have been a trigger warning on reading the facts of this case. But no, the failure to pay property taxes, if these property taxes are lawful and the penalties and interest, et cetera, it's all lawful penalties. Got it. Understand. I believe it's problematic that $2,500 can turn into $15,000. But let's put that aside for the moment. $2,500 turns into $15,000

shouldn't then turn into 40 when the remaining 25 are disconnected to any scheme of penalties and interest related to the original offense. So yeah, this is a taking. She's entitled, that was a taking without compensation. She should receive the $25,000, Sarah. What do you think? Look, I think anyone listening to this is like, this is insane.

How is this even going to the Supreme Court? So let me provide a little bit of, I think some additional legal color here. So there is a circuit split. I'm not sure that's the right term here. Basically, you have a bunch of different states that allow this under state law. But each of those state laws

are going to be slightly different. And so Hennepin County argues, this isn't a circuit split. This is just us applying our state law and that we distributed the money because the title then belonged to us. The property, again, this is an NREM proceeding. And so the property title moved over to us. So it's not her $25,000 in any sense of the term because we couldn't move against her for the money. if, for instance, she didn't own that property to begin with, they would not have been able to get the property taxes from her, which is a little confusing because obviously you can't owe property

taxes on something you don't own. I will say that I thought the reply from Minnesota, so Minneapolis, Hennepin County, that's the area we're talking about, was not great. Not great, Hennepin County. And I'm sorry. It's not that you didn't have some arguments here, but you sounded like jerks. Now, I did not read the reply. So please enlighten us. I just think when you're talking about a 93-year-old woman who clearly has a pretty sympathetic case, you're not going to want to blame her throughout your petition. So let me read you one part of this. So this is their introduction. This case concerns petitioner's complaint that after she failed to pay her property taxes for so many years that she forfeited absolute title to the state, Hennepin County resold the property and did not disperse any of the proceeds

to her. Minnesota, like many other states, provides ample opportunity for property owners to protect their interests before a parcel of real estate forfeits, the enforcement measure of last resort. Upon forfeiture, the state takes absolute title and all liens are extinguished. Minnesota has raised revenue through the taxation of real estate and enforced the same through the sale of land since it was a territory. Nonetheless, petitioner says that although the state simply sold its own land, she alone is entitled to all of the surplus proceeds from the sale, notwithstanding the years of notice she received and the many opportunities she had to protect her property interest before the final

forfeiture. Do they not, do they not understand what this case is about? So I think their best argument in that whole paragraph is that this has been the law since it was a territory, i.e. this idea that this is somehow unconstitutional. Really? Because it's been happening for a hundred plus years and all of a sudden it, you know, the fifth amendment and the eighth amendment have been around that whole time. That's a good argument. Not totally the argument they make instead. It's that at any point she could have paid the fine. The whole point is that she couldn't pay it. She couldn't pay the fine. So what happens? So it's like her, her fault. She's not saying that she doesn't know the $15,000. She's not arguing that, for instance,

she only owes $2,500 and that the additional $12,000 in interest and fines isn't owed. It's the rest of it. So I thought that was, it wasn't snarky by any means, but it was just sort of missing the point, if you will. And then let me read one other part of this. As a remedy, petitioners sought the difference between the property's value and the tax debt.

Notably, petitioner did not allege that she was unable to pay her property taxes, that she tried to pay them, or that she lacked adequate time or notice. Petitioner also did not allege that the consequences of her forfeiture were unknown to her. But that's not the point. That's not the point. The point is that if it violates the takings clause or if it violates the Eighth Amendment, all of that could actually cut very much against her. She had the money the whole time.

She just chose not to pay it. She absolutely knew that that would mean forfeiting her land, that she didn't try to pay it, that she did have plenty of time and notice to pay it, and that you still don't get to take the windfall. Right. Right. Exactly. Yeah. So I was pretty unpersuaded by the reply. And it seems like the Supreme Court was too. So they're taking this. And I think this case will get compared to Kelo in a lot of ways. Obviously, it is a Fifth Amendment case, but it's a different, you know, different words in the Fifth Amendment that we're looking at here. Nevertheless, there've been some important personnel changes on the court since Kelo. And I think the outrage to Kelo has resulted in a more property owner friendly Supreme Court in the intervening

18 years now, I think. Yeah, it's been a long time. And a while. Yeah. No, I think this case is a winner for our 93 year old petitioner. And I would just urge the court to go ahead and hear that this term chop chop 93 year old and if there's ever an argument for this being the first opinion issued like if this is this is not that controversial to everyone on the court yeah just go ahead and issue this opinion good point we've got a little bit of a like old lady on the titanic vibe here i feel like um and just to read the text for those who don't have it memorized, Fifth Amendment, nor shall private property be taken for public use without just compensation. And the Eighth Amendment, excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted. Most people just know that last part on the cruel and unusual punishment.

So worth reading the whole thing. Listen closely as a master painter carefully brushes Benjamin Moore Regal Select down the seam of the wall. It's like poetry in motion. Benjamin Moore, see the love. So we've got two out of the wall. It's like poetry in motion. Benjamin Moore, see the love. So we've got two out of the way,

David. I know, I know. And that, that, uh, the property case, it's got me fired up,

but not as much, not as much as these next two, which are very interesting. Very interesting. Can we do true threats next? Cause I'm very excited about the truth yes let's let's please this this one to me is actually the more interesting of the two i think so too yeah no completely and it's particularly interesting for this internet era

yeah yeah so so i believe we talked about this case very briefly before when it was coming up. Um, but basically, uh, this guy friends, a musician in Colorado on Facebook, and then proceeds to send her deranged, threatening, a lot of messages on Facebook. And we'll read some of those to you in a little bit. Um, some of which have some cursing in them, just we'll, we'll bleep out the cursing or you know using our voices bleep it out um but just so you're aware and she goes to the she blocks him on facebook she goes to the police um and says that it you know violates the stalking statue so he's arrested she gets an order of protection. He's arrested and is convicted. Now at trial, he says free speech, right? And the prosecutor's like, no, no, dude, true threats

are not protected free speech. And so now the Supreme court has granted cert on this question of whether our true threats in the eye of the beholder, as in it's a reasonable person standard. If a reasonable person would think that their life was in, you know, or physical person was in danger, that that's an objective, reasonable person standard. Or do you have to show some sort of mens rea that the person making the quote unquote threats

intended them to be threats or knew that they were likely to be interpreted as threats. So Arnold and Porter has this case. John Elwood is counsel of record. I mentioned that because I'm actually gonna talk about a tweet from John Elwood later in this. And I think that that's really fun. But on lawyers we highlight here, we actually haven't talked about John Elwood

a lot. And he is one of those Supreme Court practitioners that we should have mentioned more. So I'm just going to give a short bio for John Elwood for those curious how you end up here with the true threats case. He worked at the Department of Justice for freaking ever. So started in 1994, made it through the criminal division, attorney general's office, solicitor general, office of legal counsel. Forgot to mention he was a Kennedy clerk.

Went to that other law school, David, you know, the New Haven one. Meh. Yeah. But now has argued tons of cases at the Supreme Court. Lots of boring ones, frankly. Sorry, John. And a few interesting ones on guns, for instance. And this one, which I think is going to be John Elwood's most interesting argument before the court, but that's probably because you and I super geek out on this stuff. So with that introduction to what I think is now one of the more exciting cases of the term, just top line, David, when you first read this, do you think true threats should be whether a reasonable person would think they were being threatened or whether the person who's making the statements had some intentionality. Boy, I, you know, I read this and I, I read this,

I reread this, honestly, Sarah, and I've gone back and forth in my mind on this, uh, two or three times. And I feel like, uh, it's, it's. As a general matter, this idea that intent is less relevant than impact, that's a bit of a dangerous idea. But in this circumstance, how a reasonable person perceives this, how a reasonable person perceives the threat or the communication, I'm jumping forward to call them threats, how a person or a reasonable person perceives the communication seems to be really truly aimed at what prohibiting true threats is about. And worth noting here that it's not heckler's veto, right? This isn't that if the person who received them believed that they were true threats, then you're liable. It is an objective standard,

whether a reasonable person would do so. So we're avoiding some of the problems that you and I have talked about of overly sensitive sort of eggshell victims, if you will. That's not the issue here. But nevertheless, you do run into a similar-ish problem. If the person didn't intend for them to be threatening and had no idea that they would

be taken as threatening does and that person may not be reasonable and in this case i think it's fair to say this person is not reasonable and probably not a mentally healthy person should that matter because in so much of our criminal law, you have to have some sort of mens rea, some sort of guilty mind. Right, exactly. That's why I keep going back and forth on this. But when it comes to, and again, well, I think it's incredibly important

that you pointed out that when you say reasonable person, that is intended to be an objective standard, not a subjective standard. So it's another way of saying, are these messages objectively threatening? As would be the question. And I think when we say reasonable person believe, that's a clear signal in the legal world that objective standard, objective standard. Objective standard as defined by the judge in precedent, but objective nonetheless. And I, I really do feel like that when you're talking about,

as I go back and forth, and I'm going to be fascinated by the oral arguments, the oral arguments might change my mind on this. But as of right now, when you're talking about a, right now when you're talking about a what is the offense what is it that the criminal prohibition against true threats what is it trying to accomplish what it's trying to accomplish in my mind is exactly what the statute was aimed at and that is protecting a sense of personal safety. Again, reasonable objective sense of personal safety, but protecting that sense of personal safety in the community. And so that, in that standpoint, the objective test, I think, isn't quite getting at what the statute is aimed at, the legitimate government interest that the statute is aimed at. So I'm that's where I am on it right now. But it's a it's a mild lean. And where are you,

Sarah? And then listeners, think this through and then we'll read the communications. But where are you on this? I think I am in favor of an objective person standard because otherwise you end up with almost a reverse eggshell. Yeah. Victim eggshell plaintiff problem, where as long as the person making the statements

is so out of their mind or so unempathetic and hateful, I guess, that somehow that would then get you out of something where another defendant with the exact same statements would be convicted. So I think that's where I am, but I'm with you that I think because this is speech, because I don't like the idea of criminalizing speech only, that's where my hesitation is. But I think if this weren't a speech issue, it would be very easy for me that this is one of those like, ah, I don't think that you need

to prove mens rea. Um, you know, for instance, well, I won't get into a bunch of, for instances that are then going to get picked apart in the comments, but there's lots of crimes where you need the mens rea to do the thing you did, but not the mens rea to intend the effect. Does that make sense? So you need to have intended, you need to knowa to intend the effect. Does that make sense? Yes. So you need to have intended, you need to know you were hitting the person. You don't need to know you hurt them. You didn't need to mean to hurt them. It's still assault if you knew that you hit them. And in this case, you knew you were sending these messages. And I know that's not the same thing, but it's not like it's mens rea free or something. It's just mens rea different. Okay. With that, I'm going to read you the Facebook messages. Yes.

And these, I don't think we need some huge warning here. They're not disturbing or anything. Okay. Was that you in the white Jeep five years on Facebook, only a couple physical sightings seems like I'm being talked about more than I'm being talked to. This isn't healthy. I've had tapped phone lines before. What do you fear? I'm currently unsupervised. I know it freaks me out too, but the possibilities are endless. There's images of liquor bottles captioned a guy's version of edible arrangements. How can I take your interest in me seriously if you keep going back to my rejected existence? There's images of liquor bottles captioned, a guy's version of edible arrangements. How can I take your interest in me seriously if you keep going back to my rejected existence?

F off permanently. Your arrogance offends anyone in my position. You're not being good for human relations. Die, don't need you. Talking to others about me isn't pro-life sustaining for my benefit. Cut me a break already. Are you a solution or a problem? Your chase, bet. You do not talk and you have my phone hacked. I didn't choose this life. Staying in cyber life is going to kill you. Come out for coffee. You

have my number. A fine display with your partner your partner okay then please stop the phone calls your response is nothing attractive tell your friend to get lost so on i think you can bucket these into a few things one harmless weird right you, a guy's version of edible arrangements. All right. Whatever. Um, two, uh, death threats, you know, die F off permanently. But of course that's actually protected as long as it, you know, I can tell David to die right now and he can't arrest me because it's very clear to a reasonable person listening to this podcast that I'm not threatening David's life. Right. And it's very like under any of these tests, objective person test, my intention test, die, David, die because you like Aquaman.

Not a true threat. A little harsh. A little harsh. Then there's the third bucket. I i'm gonna call the stocking bucket um the thing about the white jeep i've only seen you a couple times things that imply that um he knows where she is that he's been following her the phone hacking thing's a little more confusing because at first you think that he's saying he has her phones hacked and then and this is bucket number four just the truly like mentally ill deranged bucket where he's basically it sounds

like believes that she has hacked his phones and so you are you know i'm off my meds things like that um so those are sort of the four buckets of statements that I see here. And the problem I think is that in bucket number four, where this is clearly a mentally unwell, unstable person, that probably does discount some of the mens rea, that he does not know that a reasonable person would take these as true threats. But of course me, the woman in Colorado who's receiving these, she's a musician. That's presumably why he picked her.

He'd heard her music or something, was a fan of some kind. If I'm getting these, I'm not comforted by the fact that this is someone who might be suffering from schizophrenia or might think that I'm a robot from Mars. You know, those people can be violent as well. Those can be true threats as well, even if they're

not stable threats. And so again, you get back to the like, what is the purpose of the law? Who are we trying to protect here? What is the purpose then of the first amendment? You're getting to sort of first principles on so many of these things yeah and when i when i read these i think that any given one of these messages doesn't necessarily get get you there with the exception of possibly you're not being good for human relations die don't need you well could that be a death threat or a death aspiration where they're just sort of hoping something happens to you but that that gets pretty close to a just a direct threatening declaration but for me it was the totality here Sarah it was all of these things in connection indicate stalking in the sense of trying to find her

in the real world, derangement in that this person's got some paranoia, is somebody who is obviously not all there. And then I'll combine that with violent intent or violent aspiration. All of these things together, it's that I'm following you or finding you in real life. I'm not all there. And I think you should die. Like, put all those things together, Sarah. And this is not just trolling, like Twitter trolling. This is something that indicates a much, much more serious threat. And so to me, when you looked at all of these things together, 100% does a reasonable person believe that they are in a degree of danger here. 100%. This is the kind of thing that if this filled your Twitter DMs,

or this was messaged to you, or texted to you, or emailed to you, sent to you that directly, that one-to-one communication, this would absolutely, reasonably freak you out. This would make you feel like you are in danger. And it's hard for me to sort of see a counter-argument to that. Would this not make you feel in danger? Would you not feel as if somebody is trying to find you in real life, that somebody has got a deadly intention towards you? This seems to me an extremely reasonable conclusion

in totality, where his main defense seems to be, I'm just maybe too unbalanced to really know what my words mean. unbalanced to really know what my words mean, that seems to not so much trigger a First Amendment defense as it does perhaps some sort of sanity defense doesn't have the capacity to understand what they did was right versus wrong. But that's not the same thing as getting you, that's not the same thing as saying the First Amendment protects my speech. It's much more classic sanity kind of defense, which would channel you, if successful, into a mental health track as opposed to, say, the criminal justice track. But I think this is a really good case to tease out those differences.

Okay. So we've done the first principles of the law. We've done the facts of the case. Now let's do a little Supreme Court precedent. So true threats are taken as an exception to the First Amendment back in 1969. Since then, it's been a hot mess. So in 2003, the Supreme Court held that true threats, quote, encompass those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence. So I think that's what gives rise to our problem here. Means to communicate according to whom? Objective or subjective? Fine. That then creates the circuit split that we have right now, which has been a problem since 2003 and really to some extent since 1969, but fine.

to some extent since 1969, but fine. So then in 2015, the Supreme Court takes the case to decide the objective versus subjective in Alanis. But once they got the case, they decided it on pretty narrow grounds, basically saying that the federal threat offense requires a guilty mind as a necessary element and that a reasonable person standard is inconsistent with the conventional requirements for criminal conduct awareness of some wrongdoing you have justice alito uh lamenting as john elwood writes in the cert petition that the court had compounded, not clarified the confusion. Justice Thomas basically saying the court failed to decide and acknowledging the circuit split throws everyone from appellate judges to everyday Facebook users into a state of uncertainty. So you had a split court decision on narrow grounds that didn't decide this larger question. And that brings us to today.

So you've got the, okay. First, second, third, fourth, fifth, sixth, seventh, eighth, 11th circuits, as well as Arizona, Arkansas, Colorado, Connecticut, California, Hawaii, Iowa, Louisiana, Mississippi, Montana, North Dakota, Oregon, Pennsylvania, South Dakota, Washington, and Washington, D.C. on objective standard. On the subjective side, 9th and 10th circuits, Kansas, Massachusetts, North Carolina, and Rhode Island requiring proof that the speaker intended the statement as a threat. Georgia requires knowledge that the statement will be viewed as a threat.

Illinois and Pennsylvania require recklessness as to whether the statements will be viewed as a threat. And nine states are subject to conflicting state and federal standards. So the constitutional protection given depends on the happenstance of the courthouse in which the case is prosecuted. Hot freaking mess. And in that sense, there isn't really precedent for the court to apply because the precedent in that 2003 case, or even going back to the Watts case, very much just open to interpretation on objective versus subjective. And then if it is subjective, whether it's what the person himself was trying to convey or whether they knew that someone else might have that objective standard. I mean, messy, messy, messy. Yeah, it's extremely messy. And, you know, the intent-based standard, it's interesting that

the question is framed as that heightened motive or that heightened intent standard is somehow more speech protective than maybe the reasonable person standard. Is it? I mean, is it the case that if it's a motive-based test that some speech that would not seem to be to a reasonable person to be threatening is threatening because of because of the motive um and so it's not exactly clear to me which one of these is more speech protective and we don't like looking at the motive behind speech either i mean that's also a part of our free speech you know pantheon exactly exactly so it's the thing, the clear, what's clearly speech protective is that this is not, the heckler's veto is off the table. In other words, the purely subjective, I felt threatened, regardless of the reasonableness of my feeling, that's off the

table. So that you've got either a high motive requirement, or you've got that objective person standard, which is also heightened beyond sort of the heckler's veto, my subjective feelings govern. So it is actually not clear to me which one of these is legitimately more speech protective. I do feel like the reasonable person standard

is more, I think it provides a better guidance. Yes. Easier to follow more guidance for lower courts. There's a reason that that first list who followed the objective standard is much, much longer than the other list. Exactly. And in many ways, when you have that reasonable person test, when you have that objective standard, because you're providing guidelines, because you're providing real standards, it's ultimately more speech protective in the long run than tests that are much more subjective, exploring going into someone's state of mind. So yeah, I do not think it should be cast as one of these two is more speech protective? That I would dispute.

One of the two is probably, or one of the two is more defendant friendly, which is not, you know, a constitutional standard. But it is. Kind of, kind of. Tie goes to the runner. Tie goes to the runner. Sort of built in there. I think that John Elwood and team lose this case. However, A, I'm really glad he brought the case worthwhile entirely. Number two, there's actually

a way in which he loses this case at the end, as in his client is convicted, but actually wins this case at the Supreme Court because it does seem to me, based on some of the trial transcript that he included and what the prosecutor said for the jury instructions and closing argument stuff, may not have even applied the objective standard test correctly. So you could get this remanded back to redo it, applying the correct, clear guidance from the Supreme Court on what the objective standard test actually is. I'd be fine with that. And again, really excited to hear oral argument in that case and open to being persuaded.

Yeah, I'm open to being persuaded as well. But I'm at the moment more in the view that these were threats under an objective standard and taken into context and the objective standard is the proper standard. But again, persuadable on the point. And if commenters, you want to persuade us, please do so. Do so without threatening us though. I will say that most of the things I get

are more like someone hoping that I die versus that they themselves are planning to bring it about. Yeah. The death aspiration is more common than the death threat. Much more common, which I think every time I read some, one of them, I'm like, were you just being super careful? Like, do you understand the law in this area? Or are you genuinely a kinder person who wants me to be dead, but like definitely has the character of self not to want to be a murderer? Right. Okay.

Okay. Yeah. It's a kind of common form of communication in social media is the. Yeah. I hope you die. Yes. Wishing death. Yeah.

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Use code ADVISORY at checkout to save. Terms and conditions apply. Last case that we're going to talk about also a fun one. This is the religious case. So Gerald Groff is a U S postal service employee, and he recognizes the Sabbath on Sunday and does not want to work on Sundays. Basically once the U U.S. Postal Service starts partnering with Amazon, suddenly there is Sunday delivery for U.S. postal workers. Right. Now, those contracts didn't happen all at once. So he actually moves locations, moves to a different postal branch that hasn't signed the Amazon contract just so he can continue not working Sundays, then that place signs the contract as well. At that point, he says that he'll take

extra shifts during the week if he can just not work on Sundays, yada, yada, yada. They say no in the end. Okay, so first up, you have Title VII, which provides that it shall be unlawful employment practice for an employer to fail or refuse to hire or to discharge any individual or otherwise to discriminate against any individual with respect to his compensation terms, conditions, or privileges of employment because of such individual's religion. The term religion includes all aspects of religious observance and practice, belief, etc., unless an employer demonstrates that he is unable to reasonably accommodate to an employee's or prospective employee's religious observance or practice without undue hardship on the conduct of the employer's business. Okay, I just want to read that last part again. Yes. Without undue hardship on the conduct of the employer's business. So this case is going to turn on two parts of that. One, what is an undue hardship? And two, what is the employer's business?

And does that include burden on coworkers? Is that part of the employer's business, even if it doesn't affect their underlying profit margin, for instance? Right. Okay. So then come to 1977, the famous Transworld Airline versus Hardison case.

It's nearly identical to this. I think in that case, the Sabbath Observer was a Saturday Sabbath Observer, but otherwise very, very similar. Did not want to work on their Sabbath. And in that case, the court held that in fact, that undue hardship standard could be met with if you had to impose anything more than a de minimis cost on the employer. So instead of undue hardship, it becomes anything at all that you would have

to do to accommodate the religious observance. People who are in favor of religious liberty have long pointed to this as an egregious, atextual, made up, way over the top friendly to employers. Of course, Justice Marshall famously in dissent, said it made a mockery of Title VII. Three of the current justices have called for its reconsideration. And somewhere along the line in the last few days, David, they found a fourth. This case is going up. I am sure you have had a bee in your bonnet about Hardison for some time. I have had a bee in my bonnet about Hardison. had a bee in your bonnet about Hardison for some time. I have had a bee in my bonnet about Hardison. It just defends the textualist in me, Sarah. Without undue hardship, and defining undue hardship is anything more than a de minimis, I mean, a minimal inconvenience to the employer. So

that is an absolute distortion of what undue hardship, which I admit is not a necessarily super clear phrase. Undue hardship is vague. But I don't think a reasonable person reading undue hardship then immediately stampedes to, well, anything more than minimal. Anything more than de minimis. That to me is the real issue here, that undue hardship has to mean something more than all but the most minimal accommodations are not going to be required. That it can't seem to me. On the second prong of this,

the conduct of the employer's business, I'm a little bit more sympathetic depending on the facts. And if the facts are that the accommodation has caused such a hardship to other employees, that to me is bleeding into the business. But it is, so I'm more sympathetic on that prong. Interesting, because at some point when you've

inconvenienced your co workers so much, for instance, they're having to work double shifts on Sundays, including on Christmas or whatever else, you know, holidays that that might actually affect your ability to retain employees, perhaps. Yes. Or that you might need to pay those employees more in order to keep them even sort of baseline happy with their jobs, that type thing. Yeah. But that's more than like annoyance. Yeah. Yeah. I wanted to work Saturday. you wanted to work Sunday, and now I have to flip the two. That's annoying to me. That's annoying. Yeah, that's annoyance, which that, that I don't think is the factor. You would have to show that the negative impact on the employees

was substantial enough to impact the employer. But I don't think that impact on employees, and I'm not sure that, you know, Kelly and his team are arguing that impact on employees is not relevant at all. But impact on employees can be a factor in considering the conduct of the employer's business. But to me, the undue hardship prong here, that's the real issue. That's the heart of it. Here you have Congress saying, requiring a reasonable accommodation when there's if you if you think that's too protective of religious employees, especially considering, you know, how diverse our country is and how many different kinds of religious accommodations you might encounter. If you think that's too protective of religious employees, well, you can revise the statute. But the statute says without undue hardship that's what the law says and this judicial

interpretation of it that says anything more than de minimis is undue hardship is distorting the mean the plain meaning of the statute in my view what are your thoughts oh i mean so first of all when they talk about three justices that have been criticizing hard partisan the digest blanked on the name? I was confusing with Hardiman, the circuit, third circuit judge. Obviously it's Alito, Gorsuch, Thomas in our 3-3-3 grouping. I'm very curious. You go into this with three votes to overturn it. I am curious who that fourth vote was because as we've said before, you really do need to count to five here. And this thing does get narrowed as you pick up a fourth and fifth

vote potentially, regardless of what Alito and Thomas have said in their dissents on denial of cert on some of these other cases that have come up. So that's always a fun time. Yeah. And I fully recognize the phrase undue hardship is not self-defining. It's a pretty vague standard. And so then the logical question is, if it's not more than de minimis, what is the definition of undue hardship? And that's where

I get pretty sympathetic to the notion that, well, there's going to have to be a judicial sort of sharpening of that phrase. I totally get that. But the sharpening is not anything more than nothing. And de minimis is a synonym for essentially nothing, basically nothing. So undue hardship is going to be, is not going to be just anything more than nothing. And, you know, it's interesting that, you know, I'm reminded of the old Casey undue burden and the undue burden standard for abortion wasn't anything more than nothing. There had to be some sort of more substantial impediment to the exercise of the right, but that's a little bit apples and oranges, of course, but that word undue, undue hardship, undue burden,

that's going to require some sharpening, but it was sharpened in the wrong direction in TWA. At least that's my view. Do you remember the Gorsuch and Alito descent from denial of cert back in 2021? This is that case with the electrician who was a Jehovah's Witness, Jason Small. So here's just a little bit

of the factual background on that. He worked as an electrician at Memphis Light, Gas, and Water. He then had to switch to being a dispatcher. This job came with a different schedule and mandatory overtime duties. Sometimes the new hours conflicted with his religious obligations,

like worship services on Sunday mornings. So I know, for instance, he had to do Wednesday evenings, Sundays, some Saturday, and some other special occasions, holidays, etc. Okay, so he asked his employer to place him on reduced pay temporarily while he sought reassignment to a different position. The company had a history of offering the same accommodation to other employees, including those removed from their positions for unsatisfactory job performance. But when it came to Mr. Small, the company balked. So he sort of did the best he could. He used vacation days when necessary, but then on Good Friday, they initially agreed to let him use a vacation day.

Then they backtracked, canceled his vacation request. He went to church anyway, so they suspended him without pay. This case, by the way, if you remember, the cert petition was filed in June of 2020, and it was held over from conference 11 times. That's 12 times they talk about the case until you get this denial in April 5th, 2021. So I mean, almost a year they were sitting on this case and you have the dissent from denial from Gorsuch and Alito, you know, basically saying Hardison is bad law and stupid law. That de minimis thing is out of nowhere. And going back to this case about, for instance, they were giving better accommodations

to the people with poor job performance, but they didn't need to do that for Mr. Small because of that Hardison de minimis requirement. He didn't get preferential treatment because his was a religious objection. If anything, he got worse treatment. So that was 2021. There've been a couple other flim flams around,

denial of certs with maybe not as good of vehicles. And there we are. There were not four votes at that point. And then today, all of a sudden, we know we've got at least four. Fascinating. Very, very. Yeah, this suggests to me that the counting to five has probably occurred. But, you know, again, we'll see about that. But this has been something I remember, Sarah,

I've had a bee in my bonnet about TWA since law school. Since law school. This was one of those cases when you're walking through and you read it and your hand shoots up immediately in class. You're like, wait a second. Undue burden. Undue burden. Undue burden doesn't mean more than de minimis. Where did that come from?

Does it mean more than de minimis? Where did that come from? But yeah, it's, and I do think, I also do think that from a policy standpoint, what is the policy that this statute was trying to enact? More than de minimis is going against the policy that was plainly intended by this statute. Look, we have a really diverse country. We have an really diverse country. We have an increasingly diverse

country. We want it to be hospitable to people of many different faiths, of any faith, of no faith at all. And part of that is going to involve accommodation. And, you know, we had a case that we have not talked about, very recent. This is in December of 2022. The United States Court of Appeals, the D.C. Circuit, granted relief for Sikh members of the military, specifically of the Marine Corps, in a prompt entry of a – and here I'm going to read some of the language here. It's a very brief per curiam judgment. And it says that ordered in a judge the district court's denial of preliminary injunctive relief

for Jaskarat Singh and Milap Chahal, sorry, gentlemen, if I butchered to pronunciation the name, be reversed in the case be remanded to the district court for the prompt entry of a preliminary injunction requiring the Marine Corps to allow Jaskrat Singh and Chahal to enlist without shaving their heads or beards and while bearing those articles of faith that the government failed to argue against an appeal and for further consideration, blah, blah, blah, blah. In other words, there is an accommodation here, even for the Marine Corps, that is going to allow these Sikh service members to keep their beards. There's already been previous decisions allowing Sikh service members to wear a turban in all services, including the Marine Corps. I'm also reminded of a recent case requiring accommodation, Sarah, even in prison for short beards for Muslim prisoners. And I think what you find, the more accommodations that you allow is not actually chaos. It's not actually chaos.

It is actually inclusion in the best sense. And that there are, but there are circumstances I could easily imagine where an employer is put in such a bind by accommodations that it does materially impair their business. And in that circumstance, the statute's pretty clear that they don't have to grant the accommodation.

But when you're talking about an arrangement of picking up shifts, Sarah, that is one of the most normal kinds of arrangements you see in workplaces in the United States of America as shift trading. That happens constantly. My son, who's now at UC Santa Cruz, go banana slugs, there are no known predators.

He was a waiter when he was in between schools. And there's a group me where there is just constant shift trading. Like this is the kind of thing that goes on in a lot of workplaces. And so, you know, this concept that shift trading. Like this is the kind of thing that goes on in a lot of workplaces. And so, you know, this concept that shift trading is an undue hardship, very, very uncomfortable with that.

And the result has been that under so many other statutes, religion is much more protected. And then under Title VII, it gets this weird de minimis treatment. And it's just been a sort of odd piece of it. Also worth pointing out that that 1977 precedent wasn't even technically based on Title VII statutory language. It was based on the identical language in an EEOC guideline that predated the 1972 amendment that we're actually talking about here.

Anyway, also a fun case though that we'll get to talk about i think an oral argument i kind of hope so at least is that abercrombie and fitch case from 2015 where abercrombie and fitch refused to hire a young muslim woman because she was going to wear a headscarf and that violated what they wanted people to wear who worked at those stores which you can imagine uh she won that case so that's exciting yeah because of course she did as she well should have and that was under title seven yeah yeah so i think this is clearly coming out one direction in that sense it's not that interesting a case, but Hardison will finally be gone and over and you'll have some new standard

that redefines undue hardship in some more meaningful way, perhaps. Yeah. If the Marines can accommodate turbans and beards, the post office can accommodate some ship changes. All right. Last thing up, David. I have some appellate Twitter,

just housekeeping that we need to do. Yeah, let's do it. So I mentioned John Elwood on that true threats case. So John Elwood made a big mistake. Uh-oh. He tweeted a picture from outside the window of the Eighth Circuit, which is on the 27th floor in st louis

the picture is quite lovely you can see the arch and he said argument this morning in the highest court in the land the u.s court of appeals for the eighth circuit 27th floor as many people pointed out on twitter the seventh circuits chicago 27th floor courtroom is likely higher because Chicago's altitude is 130 feet higher than St. Louis's. And Atlanta's altitude is 270 feet higher than St. Louis. And the Tenth Circuit's Denver courtroom beats them all because the altitude in Denver, of course, is just so high. So it kind of depends whether you mean from the ground or from sea level. It's an interesting appellate question, actually. What counts as the ground when you're talking about the highest court in the land? By the way, this is a pun on the highest court in the land, of course, refers to the Supreme Court,

meaning highest court of last resort, if you will. But actually, when you say highest court in the land, of course, refers to the Supreme Court, meaning highest court of last resort, if you will. But actually, when you say highest court in the land, most people think you mean the basketball court at the Supreme Court, which sits above where they hear cases. Well, in Colorado, to be fair, Sarah, there's a whole also other definition of highest court in the land. Also true. So the 10th Circuit might have it on two counts. True. So thank you, John Elwood, for really starting that important conversation

that I feel in the end was unresolved. Although I do think St. Louis probably loses by any of the definitions that we go with here. Yeah. Okay, next up. We have not revisited our font conversation in a long time, but Anthony Blinken sure did. So he sent out a memo from the State Department and the subject line was, the Times New Roman are a changing. Directing everyone to move from Times New Roman

to Calibri, a sans serif font in 14 point for all papers submitted to the executive secretariat. Okay, now we not only have a font controversy, we now have another pronunciation controversy. Oh no, how do you say it? You called it Calibri? Yeah. I call it Calibri.

And you called it sans serif? Yes. I call it Calibri. And you called it Sans Serif? Yes. I call it Sans Serif. Okay, well, that one's wrong. It is Serif. Serif, I'm 100% sure about. Calibri, I doubt there actually is a correct pronunciation, though now that I've said that out loud,

we will know that within a few hours. Yes, clear this up for us listeners, please. Yeah. Also, I mean, that's just a huge shift. I think big deal, big deal in the font wars. Well, so here's my question. So when I saw that you sent that this morning into Slack, I couldn't picture Calibri Calibri. So I literally went open to Google Doc, made the text Calibri, and then switched back and forth to Times New Roman. And I can't quite get why one is more accessible.

You know what serifs are, right? And therefore what sans serifs are? No. No. So that's going to be part of the problem here. Okay. So Times New Roman is a serif font, meaning that each letter has little feet

at the top and the bottom. Oh, okay. Calibri is a sans serif. Sans meaning without feet. Serif means feet. Okay. So it's moving from feet to unfeet. Gotcha.

And by unfeeting your font, you make it more clear? Yes, because the feet can make the letters kind of move into each other. And so in a sans serif font, each letter is a little bit more separated and distinct looking got it my goodness that's the theory at least this has made the whole podcast worthwhile because i literally believe you didn't know sans serif i had no idea i had no clue i just it was mystery like you know the Die, David, die for not knowing Sans Serif. The whole font world is mysterious to me. Like some of these, what's the Arial?

Like I type by default, that's the default font on Google Docs is Arial. Yeah, yeah. Where does that come from? Like, I have no idea. Like, why is it the default? So it's a Sans Serif font. You can go look at it and it doesn't have little feet on it.

And then, and then Comic Sans. So does that mean it's a, it's a sans serif font? That's funny. Yep. That's what the sans. Yep. Okay. Yeah.

Whereas Century Schoolbook has serifs. Cambria has serifs. Yeah. Okay. All right. Okay. Well, now I, i understand so much more um but of course brings up and i know we've talked about it before the great one of the greatest articles ever written

in the history of the internet i'm comic sans asshole in mcsweeney's under the category mcsweeney's has great stuff. Short imagined monologues. We've absolutely got to put that in the show notes, even though it's a little bit, you know, I don't consider that profane, but there is profanity in the essay. But if it's not profane, just wait. Okay, last thing.

Appellate Twitter has had a meltdown over a change in the third circuit. I know those of you listening who are Appellate Twitter followers and nerds were wondering how I had taken this long to get to it. Eastern time filing deadline for documents filed in person and electronically. Three exclamation points put Howard Bashman from How Appealing. Okay, this is a big deal because basically all the other circuits, it's midnight. And so if you've ever worked at a law firm, it's well known that on filing day, you don't have dinner plans. You're just working till midnight. And that's really for everyone. I can say in our household, there was a filing deadline last night and it was deeply annoying for me, the spouse. Yes. So the third circuit is saying, Hey, let's move it to 5.00 PM. Third circuit, by the way, is that like Pennsylvania breadbasket area? Um, total meltdown. So the

meltdown falls into a couple of categories. One that they just, they don't, they don't mind if everyone has the 5 PM deadline, but you can't have just the third circuit because then you're going to have to look up which circuit has which filing deadline each time for fear that you've confused the third circuit with the fourth circuit or something else. Fair enough. I hear that. Number two, nope, not okay with 5 p.m. everywhere. That sucks for California that now has a 2 p.m. deadline, which basically means you're just pulling the late shift the night before and that filing days would kind of be irrelevant,

except of course they're not gonna be. Instead, you're just gonna be scrambling because as nobody heard of laws of thermodynamics, gas will expand to the container in which it is provided. That's true for any deadline. That's just how it works. But it would be kind of harsh on California. Yeah. And the third argument is that this is somehow worse. But then some people said it was better for pro se litigants who might not have access to, for instance, internet or computers until midnight. And so they already had to file

by sort of an end of business 5 p.m. deadline. And this actually levels the playing field. But then other people were like, no, because they're not going to necessarily know the rules. David? Oh, wait. And then this Twitter account called Fifth Circuit Pitch Bot had the best tweet response. All filings for the Fifth Circuit are due by 7 a.m. so we can pick up Whataburger breakfast sandwiches afterward. I like it.

I, if this was a statute, I would call it the Associate Kindness Act of 2023. Because as you know, whatever the deadline is, you go to it. And it doesn't even really matter when the, because I came up pre-ECF and the deadline was five.

And you know what? We got it done. It was fine. Grandpa took his covered wagon down to the courthouse. I did. God, I saddled up the pony and I rode it down there. And then ECF comes along and what happens is, sure enough, the scrambling that happened at 4.30 in the afternoon is happening at 11.58 p.m.

as you're, you know, uploading that last PDF. And I don't think the briefs were any better for being filed at midnight, but my life was worse. And as far as the different courts having different deadlines well welcome to law practice man because you know when i i practiced in the local rules are a hundred pages everywhere the idea that this one change was going to mean you don't read the local rules no you already had to know what font to file in and a million other things that are different in each circuit. This was the thing that's like pushing you over. But I feel very strongly about this. The third circuit should move to 5pm and every other circuit should move to 5pm.

I agree with you 100%. 5pm is the end of the business day. It is not midnight. File by five. late night, file by five. It's not a problem. Yeah. You're, you're one, you're 100% correct on that. And yeah, uh, I can guarantee you. And there was a point in one of the trailing sort of Twitter comments that pushing these deadlines later into the night, I'm not sure it's created better work because there's no, not at all. I mean, because I do also think there's something about late night mistakes, late night, haggard, bedraggled, late night, last minute changes, and there's track changes. And then when you hit accept, you don't notice that now there's two periods or whatever. Like, nope, it's all bad. Yeah, no. 5 p.m. is totally fine. 2 p.m. is fine. And look, it's not, it's even worse, Sarah,

when you practice the more federal courts, district courts, and courts of appeals that you practice in. It's not just that every circuit has its own rules that are pretty voluminous. It's now getting to the point where a lot of district court judges have their own rules for their own district court,

their own courtroom. And so any case you file, one of the first things you're going to have in your case file is you're going to have a copy of the district court's rules for his own chambers. You're going to have a copy of any district court rules for the district generally. You're going to have a copy of the appellate court rules when you get to the appellate stage. This is just normal stuff. It's irritating that you have to say, if you're in a district in New Mexico, that they're going to have some unique rules

that the Southern District of New York doesn't have. It's annoying, but it's just a super fast internet search. Click print. You've got the rules. Comply with them and off you go. So. And with that, another excellent podcast comes to its inevitable conclusion.

Outstanding. And literally before these cert grants, we had nothing. We had nothing. And those, but those cases, they're fascinating. All right.

Well, thank you guys for listening. Please rate us. Please subscribe. Please check out thedispatch.com. And we will be back next week. When you're working out at Planet Fitness, it's a judgment-free zone, so you can really step up your workout.

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