Advisory Opinions: "Educating the Youth"

The Dispatch | July 15, 2025
Hosts: Sarah Isgur (A) & David French (B)
Location: Live from the FIRE (Foundation for Individual Rights and Expression) Student Conference at the National Constitution Center

Episode Overview

In this special episode, Sarah and David record live from the FIRE Student Conference, engaging with students and tackling three major First Amendment legal issues: the IRS settlement on houses of worship and political speech, the Eleventh Circuit pronoun case and government employee speech, and the history and future of campaign finance law, with a particular focus on the implications of the Supreme Court’s decision in Citizens United. The conversation blends foundational legal context, lived experience, and spirited debate, along with student Q&A on free speech, campaign finance, and parental rights in education.

Setting the Scene: A First Amendment Gathering

• Opening Vibes: Sarah expresses her joy at recording in front of the First Amendment display and reminisces about the day of the Dobbs leak ([00:00-01:45]).
• FIRE Origins: David details his deep roots with FIRE, explaining its rise from a tiny watchdog group to a national influence on First Amendment discourse ([02:06-04:57]).
  • Quote (David French, 03:44): "We were fighting to make the American public aware of what was happening on college campuses. It was a big part of what we did. And now the American public is incredibly aware, thanks in no small part to 20 plus years of effort at FIRE."

Main Topics & Legal Deep Dives

1. The IRS Settlement: Houses of Worship and Political Speech ([06:45-10:54])

• Situation: Plaintiffs sued the IRS to allow nonprofits to endorse candidates; the IRS settlement singled out houses of worship, allowing them to endorse candidates to congregants without violating the Johnson Amendment.
• Sue & Settle Debate: Sarah raises concerns about "sue and settle" tactics versus legitimate settlement.
• Constitutional Unease: David simultaneously welcomes the free speech win for houses of worship but warns about the carve-out's constitutionality.
  • Quote (David French, 09:48): "I just don't see a logic in houses of worship having a preferential free speech treatment."
  • Memorable Moment: Lively banter about the Church of Satan and the possibility of "secular center for Satan" groups testing the rule.
• Key Point: The selective protection for houses of worship may invite legal challenges on Establishment Clause or Equal Protection grounds.

2. The 11th Circuit Pronoun Case: Garcetti, Government Speech, and the Classroom ([10:54-21:19])

• Background: A Florida statute barred public school teachers from using students’ preferred pronouns or personal titles if they differ from the student's sex.
• Eleventh Circuit Decision: Judge Kevin Newsom (Friend of the Pod) applied the Pickering/Garcetti framework, ruling that pronoun use in the classroom is government speech and thus not constitutionally protected.
• David’s Viewpoint: Disagrees with the Garcetti framework—believes it unduly suppresses educators' free speech, but given existing precedent, agrees with the ruling.
  • Quote (David French, 13:18): "I hate Garcetti. But under Garcetti, I agree with this outcome."
  • Concern: Garcetti's logic reduces educators to "state-run wind-up dolls," which undermines pluralism and the educational process.
• Sarah’s Counterpoint: Intuitively feels the "all on-the-clock speech is government speech" rule is too blunt—some classroom interactions blur personal and professional lines.
  • Comic Interlude: Potty humor and children's book references used to explore the personal/professional speech line ([17:38-18:54]).
• Key Critique: Both hosts agree current precedent is overly rigid and conceptually muddled, especially in real-world education settings.
  • Quote (David French, 19:12): "We're human beings at work, and human beings at work have a combination of personal and professional conversations... especially teachers and students."

3. Campaign Finance Law: From Buckley to Citizens United and Beyond ([21:45-55:43])

Historical Trajectory ([24:25-36:01])

• Sarah Walks Through Key Cases:
  • FECA (1972): Sets campaign finance structure. Sarah labels it "incumbent protection in disguise."
  • Buckley v. Valeo (1976): Distinguishes contributions (can be limited) from expenditures (cannot).
  • FEC v. Colorado GOP (2001): Coordinated party expenditures may be limited; independent ones can't.
  • McCutcheon (2014) & Cruz (2022): Further limit Congress' ability to restrict political spending.
• The Contribution vs. Expenditure Distinction:
  • Quote (Judge Sutton, paraphrased by David, 32:12): "The court has upheld contribution limits and invalidated expenditure limits."
  • David’s Plain English:
    • Spend your own money = speech (protected).
    • Give money to candidate = contribution (limited).

The Case for and Against Campaign Finance Limits

• Legal Silliness: Both hosts note the unworkable legal fiction separating "independent" and "coordinated" activity.
  • Quote (David French, 35:29): "We don't love legal standards that are silly and unworkable in real life. The coordination restriction is one of those."
• Super PAC Shenanigans:
  • Legal loopholes lead to absurd workarounds (secret websites, public "leaked" memos, etc.).

Deep Dive: Citizens United ([36:01-47:37])

• What It Actually Did:

  • Held the First Amendment bars government from suppressing political speech by corporations—including nonprofits, labor unions, and media—via independent expenditures.
  • Debunks the myth: "Citizens United = Exxon runs American politics."
  • Quote (David French, 44:48): "[Citizens United is] not... how the richest companies get to dominate our politics. The corporate form is essentially omnipresent in American life... not an impediment to your speech."
  • Lists major Supreme Court cases that would fall if corporations lost First Amendment rights (NYT v. Sullivan, Pentagon Papers, etc.)

• Money ≠ Speech? Sarah’s Thought Experiment:

  • Is a $50 cap on criminal defense counsel constitutional? No. Money is how rights are exercised, so restrictions matter.

Did Citizens United Change Anything? ([47:37-55:43])

• Sarah’s "Why It Didn’t Matter" List:

  • Money isn’t predictive in national races (e.g., Trump, Clinton 2016).
  • Incumbent reelection rates unchanged (House: 93%, Senate: 86% pre-/post- Citizens United).
    • Quote (David French, 51:55): "If you're saying I don't like Congress and yet you're constantly re-electing your incumbent congressman, guess what you're saying in the real world? I like Congress just fine."
  • Super PACs are inefficient and separate from core Citizens United holding.
  • The real solution? No limits, full transparency, and robust bribery laws.

• David’s Coda: "We are limiting core protected speech to prevent the kind of corruption that's already prohibited by criminal law... So I'm with you. I'm with the no limits." ([55:43])

  • Caveat: Full disclosure might be difficult in a "cancel culture" environment—protect small donations, cumulative limits for privacy.

Audience Q&A Session ([57:05-75:48])

1. Public Campaign Finance in NYC: Effective Reform? ([57:05-59:36])

• Sarah explains matching funds/money-in-politics history; Obama abandoned matching in 2008 and others followed.
• David rounds out: US spends more on political campaigns than dog food; money always finds a way in.
• Name recognition remains the key driver of electoral success—campaign finance limits only fortify incumbency.

2. Does Money Matter in Down-ballot Races? ([60:53-62:33])

• Sarah: Yes, money = name ID, especially in lesser-known races. Nationally, money loses predictive power as scale and media coverage dilute spend.

3. Has the Roberts Court Pulled Back on Free Speech? Tiers of Scrutiny & Text, History, Tradition ([62:33-67:09])

• David: Sometimes agrees with outcomes disfavored by FIRE (e.g., TikTok, Paxton). When government acts against entities (e.g., China/TikTok), the speech implicated is less protected.

• Predicts a shift toward text/history/tradition, away from tiers of scrutiny—but doesn't expect an upheaval of core precedents.

• Quote (Sarah, 67:09): "I will make a prediction that the tiers of scrutiny fall in the First Amendment in the next five years..."

4. Religious Opt-Outs in School Curriculum (Mahmoud case) ([67:57-75:48])

• Sarah frames competing values in religious accommodation vs. free inquiry; notes pendulum swings between over-protection and suppression of religious rights in schools.
• David critiques the decision as "right outcome, wrong reasoning," cautioning against creating a "freestanding free exercise right" for parents to shape curriculum to their beliefs.
• Both note historical and practical complexity, including the chilling effect of fee-shifting lawsuits on schools.

Notable Quotes & Memorable Moments

• On Sue and Settle (IRS/Johnson Amendment):

  • “That's a big problem. But the thing that is very interesting to me…is how much it singles out the houses of worship.” – David French, 09:48

• On Garcetti and Teacher Speech:

  • “This is not an area where we want educators to essentially be state run, wind up dolls…” – David French, 14:25

• On Campaign Finance Law Absurdity:

  • “We don’t love legal standards that are silly and unworkable in real life.” – David French, 35:29

• On Citizens United:

  • “It's not…how the richest companies…dominate our politics. No, no, no. It's talking about corporate speech…human beings associate in our legal system [via] corporate form…” – David French, 44:48

• On Incumbency and Public Frustration:

  • “If you're saying I don't like Congress and yet you're constantly re-electing your incumbent congressman, guess what you're saying in the real world? I like Congress just fine.” – David French, 51:55

• On Education and Parental Opt-Outs:

  • “It seemed to me that it created, in essence, a freestanding free exercise right amongst parents to force school districts to provide curriculum that does not violate their religious beliefs when their child is in school. And that. That is an extreme, extremely difficult standard to uphold.” – David French, 70:47

Takeaways and Episode Tone

• Lively, candid, and deeply informed discussion, reflecting the hosts’ blend of legal expertise, policy savvy, and conversational wit.
• Critical of legal formalism and regulatory complexity, especially where it diverges from lived reality.
• Advocates for robust First Amendment protection—but not simplistically, acknowledging practical and social tensions (e.g., disclosure in campaign finance, religious accommodation).
• The episode also underscores how, in American law and politics, intended reforms often yield unintended consequences—incumbent protection, regulatory work-arounds, and persistent speech puzzles in education.

Timestamps for Major Segments

| Segment | Timestamp | |---------|-----------| | Opening & FIRE background | 00:00 – 04:57 | | IRS Houses of Worship Case | 06:45 – 10:54 | | Pronoun Case / Garcetti | 10:54 – 21:19 | | Campaign Finance: History & Cases | 21:45 – 36:01 | | Citizens United & Super PACs | 36:01 – 55:43 | | Audience Q&A | 57:05 – 75:48 | | Closing Thoughts | 75:48 – End |

For Listeners Who Missed the Episode

You'll come away understanding:

• The evolving legal fight over political endorsements by nonprofits.
• Why educators' speech rights are so contested—and why both precedent and principle leave everyone dissatisfied.
• The true impact (or non-impact) of Citizens United on American campaigns, what the law actually does, and why money isn’t always king in modern politics.
• The tension between parental rights and pluralism in public education.
• Why straightforward legal rules often get bogged down in the messy reality of politics and culture.

And, as ever with Advisory Opinions, you’ll enjoy real candor, plenty of humor, and a palpable passion for the constitutional questions that still animate American democracy.