Loading summary
Transcript98 lines
- [00:00]
A
Advisory Opinions is presented by Burford Capital, the leading finance firm focused on law. Ready? I was born ready. Welcome to Advisory Opinions. I'm Sarah Isger, that's David French. And all of those other amazing human beings are here for the FIRE Student Conference, the Foundation for Individual Rights and Expression at the National Constitution Center. And, David, I would be remiss if I did not mention that we are sitting right in front of the text of the First Amendment that was brought here on these, like, really cool trucks from the D.C. newseum a couple years ago. In fact, the unveiling of this happened the day of the Dobbs Leak.
- [01:05]
B
The day of the Dobbs leak?
- [01:06]
A
Yes. Because I was here for the unveiling and I went to go get my cheesesteak, and they just handed me the most delicious gooey wit whiz cheesesteak, and my phone started blowing up. And if you remember, when it first hit, we didn't know if it was like a legit opinion or whatever. And I talked to husband of the pod and he said the footnotes are correctly formatted. And I hopped in my car and went 95 down. 95. Yeah. So it was all. But like, this is. It's so beautiful. I just. It brings me a lot of joy to be right here.
- [01:46]
B
Well, and actually, we were, like, destined to be here at this moment. So. I'm former fire, we're at the FIRE Student conference. We love fire, and we're in front of the First Amendment. And we probably talk about the First Amendment more than all the others combined. Maybe.
- [02:01]
A
It's certainly our plurality amendment.
- [02:03]
B
Yeah, absolutely.
- [02:04]
A
Will you say a little bit about your FIRE time?
- [02:07]
B
Yeah. So I was. I think this is right. So nobody fact checked me at FIRE on this, but I'm pretty sure this is right. I was the first member of the FIRE Legal Network. This was a network of volunteer lawyers who filed lawsuits, mainly speech code lawsuits. I filed the first ever speech code lawsuit in the Fire Anti Speech Code litigation initiative, and then became Fire President in 2004 and lived here in Philly right down the road in Chestnut street for a while, and then continued to be a part of the fire legal network after I left the presidency of fire.
- [02:43]
A
And.
- [02:43]
B
And so I have, like, fire DNA in my veins.
- [02:47]
A
I think there are 13 tables here worth of students, though. Did you have anything like that?
- [02:54]
B
No, no, no FIRE in that back in the day. I'm not going to cause everyone to immediately tune out with my back in the day FIRE stories where we defended in the First Amendment walking uphill two miles Both directions in the driving snow. No, we were a small organization. We were a very small organization. And one of the things that you guys might find really interesting, especially since university issues absolutely dominate the news. If you're going to open up the front page of the New York Times on any given day, you're going to see stories about Harvard, about Columbia, about Chicago, about other universities, cable news, constantly talking about issues and speech on universities. When I started at fire, in many ways a lot of the problems of free speech on universities were worse than they are now. From a legal perspective, there were more speech codes. For example, the law on college campuses protecting student speech wasn't nearly as well developed as it is now. And we had to fight for media coverage. The media did not care what was happening on college campuses, which sounds really weird now because the media can't get enough. But we had to fight for coverage. I will never forget the first time that fire was mentioned in the New York Times. The reporter who wrote the story was my friend Patrick Healy, who later became my boss at the Times. And I will never forget this moment. We were at the fire offices. I knew the Times report was about to come out. We called a meeting of our very small staff and I said, watch this because the Times has covered fire. We're going to hear from at least two networks today. And it was true. We heard from ABC and CBS on that day wanting to know more about fire. That's, that's the way things were. 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.
- [04:58]
A
If you build it, they will come, they will cover. Okay, we have three first amendment topics to cover with you today. One, question of whether the IRS just pulled a sue and settle or was this just a settle? Two, we have a pronoun case out of the 11th Circuit. Definitely speechy speech, but is it government speech? And last campaign finance reform, a cert petition was granted that we saved just to talk about with you guys. And I have a two hour rant on Citizens United. So get comfy, you're going to be here for a while. I want to talk to my fellow attorneys for a moment. Do you really want to spend time on the technical side of briefing blue booking tables, appendix assembly, bait stamping, or would you rather focus on your argument type? Law can take your draft and exhibits and transform them into a court ready rule compliant E brief and appendix. Overnight, they've helped prepare over 10,000 filings in courts across the country, even SCOTUS. Learn more@typelaw.com and use referral code advisory to save 10% on your first order.
- [06:09]
C
That's typelaw.com@blinds.com it's not just about window treatments. It's about you, your style, your space, your way. Whether you DIY or want the pros to handle it all, you'll have the confidence of knowing it's done right. From free expert design help to our 100% satisfaction guarantee, everything we do is made to fit your life and your windows. Because@blinds.com, the only thing we treat better than windows is you. Visit blinds.com now for up to 45% off with minimum purchase plus a professional measure at no cost. Rules and restrictions apply.
- [06:46]
A
David let's start with the IRS case. Plaintiffs sued the IRS and asked a federal court in Texas to rule that all nonprofits were free to endorse candidates to their members. Instead, they have agreed to a settlement with the irs. Churches and other houses of worship can endorse political candidates to their congregation. The agency said that if a house of worship endorsed a candidate to its congregants, the IRS would view that not as campaigning, but as a private matter, like a family discussion concerning candidates. Thus, communications from a house of worship to its congregation in connection with religious services through its usual channels of communication on matters of faith, do not run afoul of the Johnson Amendment as properly interpreted, end quote. So David, we've talked about these sue and settle problems in the past where a friendly organization to an administration sues that administration so that they can come up with a court sanctioned settlement basically and and get what they could not get through legislation or often in a much faster way than they could have gotten it through the regulatory process. You know, you don't have to do notice and comment for a settlement, but which one is this? Is this the sue and settle stuff that I find really discomforting or is this actually just the correct outcome and we saved taxpayer dollars by not going to trial?
- [08:15]
B
So I have mixed feelings about this because my long standing thought has been that the prohibition against 501s endorsing political candidates is constitutionally problematic. That this idea that you cannot engage in some of the most core protected speech in constitutional life if you choose to accept the benefit of the tax exemption, that strikes me as a pretty severe, potentially unconstitutional condition on this government benefit now. So I've long had that view, long had that view. However, what troubles me about this. I do not like sue and settle, as you said, which it's hard to overstate, sort of how corrupt that can be because we have very precise procedures for enacting new regulations. We have. You have to go through bicameral legislature to enact a new statute. You have to go through notice and comment rulemaking for new regulation. But if I sue the administration, the administration likes my position, they can just enter into a binding settlement agreement with no political oversight at all. That's a big problem. But the thing that is very interesting to me about this, Sarah, is how much it singles out the houses of worship. Now, I do not think it would be constitutional for the federal government to say Amongst all the 501 3s, nobody can endorse a candidate except a church.
- [09:48]
A
Well, that's what they just said.
- [09:51]
B
That strikes me. That's a fascinating settlement that I think is subject to constitutional collateral attack. Because the first time you have a non house of worship endorsing a candidate and running afoul of the irs, you've got a problem there, I think, if you are the irs.
- [10:08]
A
Is this one of those Satanist flags? You know how like every time someone like has a religious menorah or a Christmas tree or whatever, the Satanists come and are like, where can we put our Bathusela or whatever it's called?
- [10:20]
B
Baphomet. Sure, yeah. Get up on your Satanism, Sarah.
- [10:25]
A
Like, is this that where like the Church of Satan or whatever can now?
- [10:29]
B
Well, that would be a house of worship.
- [10:31]
A
It would be secular center for Satan.
- [10:34]
B
Yeah, it's very ripe for somebody who is not in a house of worship, not a religious institution, to engage in the speech, perhaps have the IRS come down on them. And I just don't see a logic in houses of worship having a preferential free speech treatment.
- [10:54]
A
All right, next up, this is an 11th Circuit decision written of course by Friend of the Pod Judge Kevin Newsom. By the way, this is always coincidental that we end up talking about his cases. We go read an interesting case. Then I see it's from the 11th Circuit. Then I see he wrote it. It's not like I have some Google alert for Kevin Newsom. Definitely said on my. I don't though, actually, but maybe I should now that I'm saying this out loud. All right. Florida enacted a statute declaring that it is quote false to associate to a person a pronoun that does not correspond to such person's sex to enforce its view of what speech is correct and permissible. Florida prohibited public school Teachers, employees and contractors from providing to a student, quote, his or her preferred personal title or pronouns if such preferred personal title or pronouns do not correspond to that person's sex. Statutory citation. A teacher who violates this prohibition faces revocation or suspension of his or her educator's certificate or other penalties provided by law. This was a 2 to 1 decision. And here's Kevin. Sorry, here's Judge Newsom's take on that. To resolve the private citizen government employee tension, we employ a two step framework grounded in the Supreme Court's decision in Pickering v. Board of Education and Garcetti v. Ceballos. David, we've called this, everyone calls this the Pickering Garcetti test, right? Step one, the employee must show that in expressing herself, she is or was speaking as a citizen rather than in her capacity as a government employee. The majority of the panel found that using your pronouns in class or Ms. Wood writing that on the board was government speech and clearly part of the job responsibilities of the teacher and not in her capacity as a private citizen. David, you agree with this outcome?
- [13:12]
B
Well, I agreed with the outcome, but that, but I don't agree. Well, let me put it this way.
- [13:17]
A
You hate Garcetti.
- [13:18]
B
I agree with this. I hate Garcetti. But under Garcetti, I agree with this outcome. So to make it, you know, just make this as simple as possible. Basically, what Garcetti is saying is that if you're in public employee and your speech is part of your job, that the speech you're engaging in is part of your job, it is not constitutionally protected. If it is not part of your job and you're a public employee, then, and if you're speaking on a matter of public concern, you're going to have some constitutional protections lock in. But this is, I think, a distinction that is ultimately extremely difficult to work with conceptually, especially in the edge cases. The other thing is it is extremely, unnecessarily speech prohibitive for public employees, especially public employees in the educational context, which is one of the reasons why Garcetti left it completely open, whether it even applied in the areas of teaching and scholarship. My point of view is that Garcetti should not apply, period. And if it does apply, it should clearly carve out teaching and scholarship. This is not an area where we want educators to essentially be state run, wind up dolls, where you wind up the teacher with the curriculum and then you just put them in the classroom and out comes the state approved speech. No, that was never the environment that I grew up in as a student, even as A younger student. I understood that teachers had their own opinions and their own thoughts and learning how to deal with that and navigate that, and an authority fig was part of the educational process. I'm a big believer in what Justice Brennan said in the Pico case. It's something I talk about all the time, that one of the purposes of education in the United States is to prepare students for the contentious and pluralistic society that they live in, to protect them from that pluralism by turning all of these teachers that they have into state controlled autom, you know, speech automatons, that in one state is going to use preferred pronouns. In another state it's going to be prohibited to use preferred pronouns or whatever. To me, that is a real problem I have with Garcetti. So I hate Garcetti. But if Garcetti is still good law and it has been applied broadly to secondary school education, it's been applied to high school teachers, middle school teachers, to where their speech is not protected, then I think it's the right decision, just under the precedent. But while we were walking here, you made me doubt myself on that because you're not so sure that this is public speech, that this might be private speech.
- [15:57]
A
This is an AO first. But I think I might disagree with Judge Newsom for the first time in AO history. Now there's times where I don't understand Judge Newsom and what he's, you know, like. Some of his opinions are so brilliantly smart that I struggle. But no, this one's pretty simple. And I take his point that when you are a teacher in a classroom and you're writing your name on the board, that that's clearly part of your job. For instance, if you write Ms. Wood on the board, who, by the way, I'm using my calculus teacher in high school. Sorry, Ms. Wood. You write Ms. Wood on the board and a student says, hey, Ms. Boo Boo Butt, I think your math is wrong. You can punish the student for that. So it's clearly part of your job not only to write your name on the board, but to sort of enforce decorum based on your name pronouns could certainly be a part of that. So I take that point, and that's his point and whatever. But doesn't it feel a little bit odd that there is nothing that is personal speech in a classroom the whole time? Like, you can't just like, walk out of your classroom if you have explosive diarrhea all of a sudden you have to say something to the students like, hey, I've got explosive diarrhea and I need to go to the bathroom. I'll be right back in five minutes. That's not personal speech. That's government speech. Because it's part of your job that you have to say something to your students before you just like, dash out of the room holding your boo boo butt. This is all coming from a book called the Book with no Pictures.
- [17:38]
B
I wonder how you can tell that Sarah has two toddler age boys.
- [17:48]
A
It strikes me that Garcetti doesn't quite cover this, I guess to me, and the dissent touches on this a little, but, yeah, I guess this is almost more of an intuitive thing. If we're dividing the world into government speech and personal speech, I think it's too simple to say you're on the clock, you're doing your job. Everything you're saying is government speech. Now, we've seen this in the prayer stuff that, like a teacher during her lunch break, for instance, can certainly say a prayer at her desk. Just because you're on your employer's property and during work hours does not transform everything into government speech. The Kennedy versus Bremerton, that was a prayer by the coach on the 50 yard line right after he had finished coaching. Obviously it was on school property. It was still like within his coaching time frame, kind of. But they said that was private speech. This is not that. But it's not quite, you know, explaining the motive motifs of Moby Dick either.
- [18:55]
B
It's not, you know, and that's again, one of the reasons why I find Garcetti to be so difficult to the point of unworkability. Because we all know, and I'm not a believer in bring your whole self to work, whatever that means. But there, there are.
- [19:12]
A
Do you bring your whole self to work? No.
- [19:16]
B
No, I don't bring my whole self to work. I have never worn my Dungeons and Dragons chic, converse Chuck Taylors in the New York Times building. So the moment I do that is the moment I'm bringing my whole self to work. That's right. But I'm not a believer in all of that. But we're human beings at work, and human beings at work have a combination of personal and professional conversations on a rolling basis all day long. And you better believe that includes teachers and students, especially students are. You know, you guys are young enough to remember your younger selves, and a lot of you guys were probably endlessly curious about your teachers. What did you think about this? What do you think about that? Tell me about your family. Tell me about.
- [20:01]
A
Did you always have that teacher that everyone would say like was drunk at school, like there was vodka in the water bottle and like every time she went to go pour some of her water bottle into the plant, it was vodka. Cause we definitely, definitely had that rumor about a teacher which now, as an adult understanding how hard it is to keep any plants alive, she was not pouring vodka into that plant. That makes no sense. There was also no evidence whatsoever that she was drunk.
- [20:25]
B
I can't say that we had that conspiracy theory, but we had many about our teachers. And it's just artificial. I think the difference between the Pickering test is the Pickering test actually has a test that's much more workable in real life. Is something a matter of public concern or not is a lot easier to adjudicate than whether something is personal or not. Especially when all of the speech that could be personal or not personal is taking place in a professional setting. I just think it's unworkable. But I think according to the definitions of professional speech that we have now, I think Judge Newsom is right. Although I wish he would have concurred with himself to then say Garcetti is not workable. Supreme Court let's do something better than that.
- [21:19]
C
This episode is brought to you by Progressive Insurance. Do you ever find yourself playing the budgeting game? Well, with the name your price tool from Progressive, you can find options that fit your budget and potentially lower your bills. Try it@progressive.com Progressive Casualty Insurance Company and affiliates Price and coverage match limited by state law not available in all states.
- [21:45]
A
As the days cool down, the coffee routine around here shifts. Comforting warm mugs in the crisp mornings, refreshing iced coffee in the sunny afternoons. No matter the season, hot or cold, Trade recommends beans you'll love. Roast them to order and delivers them right to your door. It's like having your favorite cafe on standby without ever leaving home. Trade is the number one coffee destination in the United States for both hot and cold coffee drinkers. They've sourced the best beans from over 50 top roasters across the United States. For cold brew lovers, they've teamed up with 15 roasters to create a special collection made just for cold brew. So every cup comes out smooth and delicious every time. Take their quiz and in under a minute they'll recommend coffees you'll love. If that first bag isn't quite right, no problem. Trade will replace it for free until they nail it. Right now, trade is offering 50% off a one month trial@drinktrade.com advisory that's drinktrade.com advisory to get 50% off your first month drinktrade.com advisory. All right, well, finally we get to my favorite, the campaign finance section. There was a cert grant, David. There was a cert grant. We haven't gotten to talk about it yet. Also, the lower court opinion was an en banc decision by the 6th Circuit with the majority opinion written by Judge Sutton. And as we talk about this, as I was sort of marinating in what we were gonna. How we were gonna walk through this today, it really was striking me that I don't think there's much debate at this point that Judge Sutton is sort of the most. The powerhouse judge in the country who's not on the Supreme Court.
- [23:28]
B
The tenth Justice.
- [23:29]
A
Yeah, yeah. So it was an en banc sixth Circuit decision written by him as chief. It was actually there was only one dissenting opinion. Judge Radler, who's also friend of the pod, though Judge Thapar wrote a concurring opinion that is also kind of a dissenting opinion. You in particular are gonna not like that. Thapar concurring opinion because it was just taking to task the tiers of scrutiny when it comes to the First Amendment. So anyone who's into tiers of scrutiny versus text history and tradition as applied to the First Amendment, something Judge Newsom has written about as well, that the par. Concurring opinion is good times, but not what we're talking about much. At least today, I am going to walk you guys through the painful history of campaign finance in the United States. So hold on to your hats. It's going to be an exciting journey starting.
- [24:25]
B
David, I was just going to say, and I would note if you are thinking, oh my gosh, I'm at a fire student conference and we're about to talk about Citizens United.
- [24:36]
A
No, it's. I'm at a fire student conference and we're about to talk about Citizens United.
- [24:39]
B
I know that should. And I'm going to say that's why that should be your. Your idea and your attitude. Because what we're talking about is a complex labyrinth of case law around the most core speech in the United like core. Core protected speech. Whatever argument people have about the meaning of the First Amendment, they're pretty unanimous that the First Amendment was intended to protect political speech. And we're about to walk through all the ways in which the Supreme Court has held that the First Amendment doesn't protect political speech in certain contexts. But go ahead.
- [25:09]
A
1972, the Federal Election Campaign act is passed. Next. There's two ways of looking at this piece of legislation. One way is that this is a piece of progressive legislation from folks in Congress who are getting a lot of pressure to get big money out of politics. The corrupting influence of America's wealthiest citizens paying for legislators. I want to give you an alternative way of thinking about fika, which is through the lens of incumbent protection, because which is more likely that all of those guys who were already in Congress wanted to stop the way that they got there or that they wanted to make sure that they got to stay there. Which sounds more like Congress to you. Campaign finance laws are passed by members of Congress, almost all of whom will be running for reelection. It would be very strange if these laws in any way helped their opponents. And of course they don't. Incumbents benefit enormously from fundraising limits because they already have a ready to tap donor list. Basically, incumbents start from the 50 yard line for each election. But when Mr. Smith wants to go to Washington, he has to invest a staggering amount of time to raise money in those $3,000 now ish chunks. It's actually 3,500 right now. Time that would otherwise be spent meeting with voters, getting his name out there. It's why incumbents most fear self financing opponents. Incumbents biggest advantage. Time and money both instantly disappear if they have a self funding opponent. Okay, so that's 1972. That's FICA. It's going to set up the structure that, you know, today roughly 1976, Buckley v. Vallejo. The Supreme Court held that the ceilings on individual campaign contributions do not violate the free speech guarantees of the First Amendment because they safeguard the electoral process from corruption and the appearance of corruption at the same time. The Court ruled that when individuals and organizations spend money to voice their own political opinions, the First Amendment protects that right, prompting the court to invalidate the act's limits on independent expenditures. This is all going to be very relevant. So I hope you memorized what I just said. Buckley, by the way, was six opinions, five of which were partial dissents. The majority was a per curiam. It is a total and complete mess. And yet it is the Supreme Court foundation for everything else we're about to talk about. Buckley. Okay, 2001. And this is the case that's going to be at issue in the cert petition. This is the case they're deciding whether to overturn. FEC v. Colorado, GOP Federal Fund. It's a 54 decision written by Justice Souter. There's actually this is. We call it Colorado 2. There's a Colorado 1. Don't worry about it. For our purposes, Colorado 2 in 2001. Independent expenditures can't be limited, but coordinated money can be. The court worried that donors and candidates could sidestep the contribution limits that Buckley allowed, prompting the court to hold that quote. A party's coordinated expenditures, unlike expenditures truly independent, may be restricted to minimize circumvention of contribution limits. So this is the idea that a political party can spend whatever money it wants about a candidate on its own, but that political party cannot call the candidate and ask, hey, what's your. Your message? What are you going to run on? We were thinking of running an ad on puppies. Do you like puppies? That's a coordinated expenditure, and there's limits on that. So the current limits, you can give a candidate $3,500, you can give a state party $10,000, and you can give a federal party committee that includes the. We'll just do the Republican side for sake of my background. The National Republican Congressional Committee, the National Republican Senatorial Committee and the Republican National Committee, and obviously the Democratic counterparts, $44,300 as of this cycle. So the problem would be that if we allow the parties, you know, if you can only give the candidate $3,500, but you can give the federal party $44,000, and that federal party can take the $44,000 and ask the candidate how they want you to spend it. Didn't we just raise the individual contribution limits to individual candidates to roughly $48,000? Okay, two more cases I need to run through before we get to this one. 2014, McCutcheon, overall limits to how many candidates you can give to. So before you could, all those limitations I said were, like, good. But then there was an overall, I think it was 120,000 dol limit that you could give per cycle. The Supreme Court struck that down in 2014 in this McCutcheon case. Disclosure, I was at the RNC. I was very involved in that case. While the First Amendment allows restrictions on direct contributions, it does not allow Congress to layer on top additional restrictions, ostensibly to prevent circumvention of the base limits. And the court strengthened the closely drawn test, emphasizing that this rigorous test demands narrow tailoring. So, right, basically, like, you can have one prophylactic against the appearance of quid pro quo corruption, but you don't put a condom on top of a condom. It doesn't work and it's not comfortable. I've heard, okay, 2022. This is the Cruz case. This was decided quite recently. This was a setup case, frankly, about a limitation on when a candidate loans their campaign money, whether the campaign can pay that money back to the candidate after they've won the election, and how much. And the Supreme Court struck down the limitation. The courts said that the government must show that a given campaign finance restriction will actually have a tangible effect on corruption. There was just nothing about the debt repayment that seemed like it had ever prevented corruption. Okay, so that takes us to this cert petition on whether that they've granted, on whether to overturn that FEC case, whether to get rid of the coordination limits, whether a party has a First Amendment right to coordinate its expenditures with its candidates. Now, David, we haven't talked about the elephant in the room case, and we're not going to for a second, because I want you to weigh in on this march through independent expenditure history before we do Citizens United States.
- [32:12]
B
So I used to. I sometimes feel a little bit embarrassed when I've been thinking about something for a very long time. And then I read one sentence that completely encapsulates the whole issue in a way that I've never thought of. Thank you, Judge Sutton. I was trying to figure out how can we concisely and clearly walk through this with the students in a way that they'll kind of get a sense of what this is all about? And. And I love this sentence from Justice Sutton. So this is basically the how to understand campaign finance law right now. For the most part, this formulation, referring back to all the cases that Sarah talked about, has led the court to uphold contribution limits and invalidate expenditure limits. Okay, what does that mean in plain English? What that means in plain English is if I want to spend my own money to articulate a position or to support a candidate, I can do that. And I'm doing. I'm spending my money, and it is my speech. Let's say I want to take out a full page ad in a newspaper, and it's me talking, and then that expenditure, my expenditure form, that is my speech, is going to be protected. However, if instead I'm saying I want to give money to Sarah for Sarah to speak, and Sarah is a candidate, well, then that's a contribution, not an expenditure. And that contribution can be limited. So that feels pretty clear. But as Sarah was saying, this coordination point is where you really begin, where the rubber really meets the road on this issue. Because if I, as you were saying, if I could spend endless amounts of money, my own money for my own speech, I'm a political party. Endless amounts of money for my own speech as a political party, and then I want to call Sarah and see how she wants me to spend that money. Well, then, as you were saying, is that really a contribution limit? No, it's not one. So then you get to this absurd spectacle that we have right now in America. We're not just in the political party versus candidate context, but also say in the super PAC and candidate context, you have all of these entities spending money for a cause that they're not allowed to talk about with the candidate. And so then it leads to this weirdness. Like, I'm sure you guys have seen this in a leaked campaign memo, the Cruz campaign or whatever, you know, in a leaked campaign memo, the Thune campaign, whatever campaign has, saying that the spending of the super PAC has been particularly unhelpful. And so is that coordination? No, that's a press release. Right. So you have these, or that's a leaked memorandum, or you have the background quotes or the leaks.
- [35:01]
A
And to be clear, that is completely legal because as long as the information's public, it's not coordination. Coordination is only private communication. So this has led to also public websites that nobody knows about that are like xkdc425.com and as long as everyone agreed beforehand that they knew about that website. And then you broke off into super PAC world and campaign world. I'm exaggerating a little, but that's legal.
- [35:30]
B
And I think you're going to see a theme for some of our comments. We don't love legal standards that are silly and unworkable in real life. And the coordination restriction is one of those that was created because of the expenditure contribution distinction that the law was making. But it demonstrates how the expenditure contribution distinction itself has problems if you have to then create this artificial barrier to human interaction to maintain it.
- [36:01]
A
Okay, now we have to do Citizens United, because I bet all of you have heard of Citizens United, and I bet if I picked on any one of you to tell me what Citizens United actually was about, we would have a very high focus failure rate. I mean, maybe not in this room, but I kind of think even among, like, elite lawyers, we would have a very high failure rate. By way of background, you know, advisory opinions used to be kind of split between law and politics. I spent close to 20 years as a political operative. We were about to enter the, like, heartland of Sarah's operative days. I came up through a lot of this legal landscape changing. So, in fact, in my law school application, David, I don't know if you know this. Do you know what I wrote my essay on?
- [36:48]
B
No.
- [36:48]
A
Working for Swift Boat Vets for truth the like original 527 in the 2004 campaign.
- [36:54]
B
Are you kidding me?
- [36:56]
A
No. So I worked as a lawyer at the NRSC helping set up independent expenditure unit. I was on Romney 0, 8 and 12 in the legal departments. And then in Carly Fiorina's world, we were pushing the boundaries of super PAC not coordination. It led to this great quote because Carly's super PAC was capital. It was an acronym C A R L Y. I forget what it stood for because who cared? And then the campaign was Carly. So if you showed up, you wouldn't know. They basically did all of our ground game for us and it would just say Carly in all caps and you would think you were at a campaign event even though you were at a super PAC event. And the Wall Street Journal did this great piece on it where speaking of not coordination, the head of the super PAC gave this. It's either a really great quote or a really like this is why you need a comms director quote. He said we could name it Carly for Puppies. It doesn't matter. It can't break the law. Shh, don't say that. Okay, so Citizens United decided in 2010 is a re argued case, which is interesting because the Supreme Court hears it the first time. And I just let me read this transcript from the oral argument and the first argument. Chief Justice Roberts if it's a 500 page book and at the end it says so vote for X, the government could ban that. MALCOLM STEWART well, if it says vote for X, it would be express advocacy and it would be covered by the pre existing Federal Election Campaign act provisions. CHIEF no, I'm talking about under the Constitution, what we've been discussing. If it's a book, STUART if it's a book and it is produced again to leave to one side the question. Chief Right, right. Forget take my hypothetical. STUART yes, our position would be that the corporation would be required to use PAC funds rather than general treasury funds. CHIEF and if they didn't, you could ban it. STEWART if they didn't, we could prohibit the publication of the book. Just to be clear, when the government says that they can ban books under the U.S. constitution, you're going to have some justices who are unhappy with that. So they called for re argument to decide whether they should overturn this case called Austin. That's pretty bad. If the Supreme Court's like that was such a terrible argument that now we're thinking of overturning the entire precedent, something we weren't going to do beforehand when it's re argued the advocate for the Solicitor General's office says we took what the court reaction to some of those hypotheticals were very seriously. We went back, we considered the matter carefully, and the government's view is that although this section does cover full length books, that there would be quite good as applied challenges to any attempt to apply it in that context. And I should say that the FEC has never applied it in that context. So for 60 years, a book has never been an issue. The chief. We don't put our First Amendment rights in the hands of FEC bureaucrats. And if you say that you are not going to apply it to a book. What about a pamphlet? Oh, I think a pamphlet would be different. A pamphlet is pretty classic electioneering. So yes, we could ban a pamphlet. And by the way, do you know who argued for the Solicitor General's office in the reargument of Citizens United? Elena Kagan. Yeah, so she backs off the book ban and then is like all in on the pamphlet band. Okay, so let's back up to what Citizens United was really about here. Section 441B of the Bipartisan Campaign Reform Act. This is 2002. It's the update to that 1972 FICA act makes it a felony for all corporations, including nonprofit advocacy corporations, either to expressly advocate the election or defeat of a candidate or to broadcast electioneering communication within 30 days of a primary election and 60 days of a general election. Thus, the following acts would all be felonies under 441B. The Sierra Club runs an ad within the crucial phase of 60 days before the election that exhorts the public to disapprove of a congressman who favors logging in national forests. The National Rifle association publishes a book urging the public to vote for the challenger because the incumbent US Senator supports a handgun ban. The American Civil Liberties Union creates a website telling the public to vote for a presidential candidate in light of that candidate's defense of free speech. In this case, it was a couple dudes in their garage putting together a documentary called Hillary, Hillary the Movie. I actually have this DVD at my house. David.
- [41:52]
B
Wow, that's a deep cut. Yeah. How is it? Is it good?
- [41:58]
A
No. Okay, trying to think. Yeah. No, no, but it's really classic political speech. I mean, it's a documentary. People saying that they don't like Hillary Clinton. I forget if it includes the woman who says that Hillary killed her cat. Do you remember that really famous 90s story that Hillary murdered someone's cat to intimidate them from not speaking out against her or something.
- [42:21]
B
Oh, Sarah, in the 90s, it wasn't just a cat the Clintons had murdered.
- [42:26]
A
Well, I know, but the cat thing I think really jumped the cat for me.
- [42:30]
B
I have the distinction of having received in the mail, unsolicited, the infamous at the time Clinton body count documentary about the Clintons as serial killers. So if you think you live in the exclusive age of conspiracy theories, ladies and gentlemen, you do not.
- [42:50]
A
So they wanted to release this movie on demand within 60 days of the general election. Sorry, of the primary election in 2008. And that would be illegal under Bikra. I mean, just right off the bat, that should strike everyone as pretty nuts that you can't release a movie because it criticizes a candidate. Because it criticizes a candidate. Mind blown, okay? That is what Citizens United is about. And I feel like nobody knows that. So here's line from Citizens United opinion. The government regulate corporate political speech through disclaimer and disclosure requirements, but it may not suppress that speech altogether. The government has no anti corruption interest in limiting independent expenditures. The appeals court ruled that contributions to groups that make only independent expenditures cannot corrupt or create the appearance of corruption. The First Amendment does not permit laws that force speakers to retain a campaign finance attorney, conduct demographic marketing research, or seek declaratory rulings. Before discussing the most salient political issues of our day, here's the two big things that I hear. Well, the one big thing is that like Citizens United caused super PACs and led to big money in politics. There's the. I mean, I think there's a real question to be had whether Citizens United, the actual holding that a corporation out of its general treasury funds can spend money on independent campaign speech. I challenge you to tell me a corporation that is doing that or has done it at any of the previous cycles.
- [44:37]
B
I mean, the only corporations that I would think of that have done such a thing would be corporations such as news organizations that have an editorial board that endorses a candidate.
- [44:47]
A
How funny that you say that.
- [44:48]
B
Or a labor union that endorses a candidate. Like one of the things that's frustrating about talking about Citizens United is people treat it as if it's like the Exxon Enablement act, that this is. The Supreme Court just walked in and said, well, this is how the richest companies in the world get to dominate our politics. No, no, no. It's talking about corporate speech, which a corporation absolutely includes Exxon. It includes Apple, it includes Nvidia that just hit a 4 trillion market cap. Also includes a mom and pop grocery store. It also includes A church. It also includes a newspaper. It also includes a labor union. So the corporate form is essentially omnipresent in American life is the way that institutions exist in the American legal system is through a corporate form, by and large. And so Citizens United is not a case that says big corporations get to run things. It is a case that says the most common way that we human beings associate in our legal system is not an impediment to your speech is the way I interpret Citizens United.
- [45:58]
A
This gets to your point about unconstitutional conditions, right? Because granting someone corporate form is the government right. The government gives you a corporate charter. And the question is, can you condition that corporate charter on not being able to advocate for a candidate? And the Supreme Court basically says no to that. But again, you don't know any corporations that are spending out of their general treasury funds except the New York Times and ABC News, et cetera. So the first thing I hear, corporations shouldn't have First Amendment rights. There's this great string site in Citizens United. The sentence is the court has recognized the First Amendment protections extend to corporations. And then it lists all of these cases. I'll just walk through a couple of them. New York Times versus Sullivan. That actual malice standard and defamation suits. Oh, guess what? The New York Times had to have First Amendment rights in order to have that decision. So you'd have to overturn that one. New York Times versus United States. That's the Nixon Pentagon Papers one. Oh, yep, you'd have to overturn that one. Torneo that was unanimous in 74, overturning a Florida state law that required newspapers to offer equal state space to political candidates who wish to respond to election related editorials. Bilotti 78. Does the First Amendment protect the rights of corporations to attempt to influence the outcome of elections in which they have no direct monetary interest? Turner 2. That was a 5. Four in 97 cable companies were being must carry laws for cable companies, right? Every time the Supreme Court like of course those companies have First Amendment rights or else you basically have gotten rid of all media organizations.
- [47:37]
B
Here's an interesting case, NAACP versus Alabama was involving the OP that was involving Alabama's attempt to restrict the NAACP's operations as a corporation in the state of Alabama until they would release names of all their associates and all of their members and associates, which could have been a death sentence for people.
- [48:01]
A
Obviously corporations do have First Amendment rights. Or else you're gonna have to overturn like a gazillion billion precedents of the suprem court number two, money isn't Speech. I totally get the intuitive feeling that giving a candidate money is not your speech and therefore it can be regulated. But let me put it in a different context. You have a right to counsel in a trial, a criminal trial. What if the government regulated that and said you can only spend $50 on your counsel? Would that violate your constitutional right to counsel? Of course it would. Even though money isn't a lawyer, that's how you get the lawyer. What if they said you have a Second Amendment right to keep and bear arms, but you can't spend more than 25 cents on that right? Obviously, that would be struck down. So, yeah, money isn't speech. But in every other context, it's so intuitive that the money. Absolutely. The government can't use a restriction on the money as a way of limiting your right. Okay, so then I told you guys that nobody's spending that corporate treasury money on speech, and you're all probably a little confused because you're like, all of these corporations are spending a ton of money, right? I'm told there's like billions of dollars of this money. That's super PACs. That has very little to do with Citizens United. Super PACs are through the Federal Election Commission. And by the way. So those are 527, same as swiftboat Vets. What Citizens United said was that these independent expenditures don't have the appearance of quid pro quo corruption. There was then a D.C. circuit decision called Speech now that applied that to the 527. That if the 527 is just doing an independent expenditure, you can't have a contribution limit on what you can give to that PAC. That gives rise to super PACs. There's also 501 C4s. Those are through the IRS. They are social welfare organizations. Those are even funnier. At least with the 527 super PAC, you are still disclosing all your donors, how much money, how you're spending it. There's endless FEC requirements because the 501s are through the IRS, not the FEC. If you're doing electioneering, you still have to file some stuff with the FEC on, like how much you've spent, but you don't have to disclose your donors. 501c4s are very popular these days. But again, it's not corporations coming together to make Hillary the Movie. That just didn't happen the way that people thought. But, David, I wrote down my list of why Citizens United didn't matter.
- [50:49]
B
Oh, why it didn't matter. I can't wait to hear this.
- [50:53]
A
I wrote some on why it does matter too. But here's my why it didn't matter. One, it turns out money doesn't matter. It's not predictive of who wins at the national level. In 2016, Donald Trump spent less than pretty much every major candidate in the Republican primary, and he spent less than Hillary Clinton in the 2018 Senate races. It was actually almost reverse predictive. The candidates that spent less in the general election were slightly more likely to win than the candidates who spent more in the 2018 is in. It was a total wash of predictability. Campaign finance laws still protect incumbents. I kind of thought that Citizens United would tap away at that incumbent protection thing. But looking at the four election cycles before Citizens United, House had a 93% reelection rate, Senate had an 86% percent reelection rate. And then the cycle after Citizens United, House had a 93% re election rate, Senate had an 86% reelection rate, made no difference for incumbent protection, which was deeply upsetting to me.
- [51:55]
B
Can I just, just, can I pause for a moment on those numbers? 93% re election rate in the House, 86% reelection rate in the Senate, and yet Congress has the abysmal approval rating from the public. Okay, I've got a message for the public. It's on you. Like, it's totally 100% on you at this point. Because 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. And we'll get to, you know, hopefully over the course of the weekend, we'll, you know, I'm also coming back tomorrow and we'll talk more broadly about sort of the constitutional realities in the United States. But as we look at problem after problem after problem with the system and the structure of our government right now, it's all coming back to us. It just all comes back to us. It is everything that we have voted for. Nothing is happening that we haven't voted for. Okay? And I know that a lot of people get upset and are disillusioned about American government. Vote for different people. Like, do it. And I think that this is a constant problem in American government. You have widespread discontent with both political parties and yet zero, zero truly meaningful effort to break free of that trap. And so it's creating an enormous sense of discontent in the American public that is the fault of the American public.
- [53:38]
A
So this is my last one. Not a single campaign operative that you will talk to like super PACs. Except the ones running them, who are getting paid to run a super pac, obviously that's pretty good business. They're incredibly inefficient. Campaigns get a discount on ads that they buy and super PACs don't.
- [53:56]
B
So.
- [53:59]
A
In 2015, Reuters found that in just over a week, the Bush campaign spent 41,000 to run 44 ads in New Hampshire and that the Super PAC spent $140,000 for 31 spots on the same show. So, I mean, these donors are throwing away about 70 cents on the dollar in some cases. To not be able to coordinate with the candidates annoys the ever living everything out of the candidates. Oftentimes, the super PAC is kneecapping their message. It's a terrible way to run a railroad. And David, this is the punchline of the whole thing. What's the answer? Right, because if the Supreme Court has held that this is a constitutional command of the First Amendment, you could amend the Constitution to undo Citizens United. But hopefully we've shown that that will have all sorts of really perverse effects that nobody thinks would be good. Or, and just bear with me, no limits, full disclosure. It's like Texas Hold'. Em, but we have the technology now to have near instantaneous disclosure of donors. Texas, Virginia, Pennsylvania, like tons of states already do this. And you can complain about them, but it's not like they're these wildly corrupt governments in the no limits, full disclosure states. And you get rid of all of this, the full Employment for Campaign Finance Lawyer act and all of the shenanigans and the workarounds and the crazy website name so that it's public and therefore legal to coordinate. All of that just goes away and all the super PACs gone. And you can actually hold candidates responsible for their message and for their donors. Two things that we don't do right now.
- [55:43]
B
You know, I have always been confused a bit by a campaign finance regime that is dramatically restrictive of First Amendment rights that can exist constitutionally that we constitutionally right alongside robust bribery statutes. So it seems to me that the robust bribery statute should be enough, that if the concern is with the amount of the contribution, that is diving straight into core again, core protected speech. So what we are doing is we're limiting core protected speech to prevent the kind of corruption that's already prohibited by criminal law. And so I get the concerns about corruption, I really do, but that's why we have bribery statutes. So I'm with you. I'm with the no limits. I have some qualms about requiring full disclosure Especially in an environment where there is an environment of threats and intimidation, a cancel culture world. I do worry about the full disclosure.
- [56:48]
A
We can certainly have something like we have now. Donations under $200 are not disclosed. And, you know, you can't just give $199. Like, it's cumulative. All right, with that, Molly, can we take some questions?
- [57:06]
D
Hi.
- [57:06]
E
My question was about the New York City financing system that they've come up with, which was very relevant in the recent New York City mayoral Democratic primary. I don't know like the exact specifics, but I know that it essentially limits kind of outside spending. And it basically, there's like a limit on how much a campaign can raise, and then that's like matched by like funding from the government. I was curious what you guys think about that in terms of like, as a solution if your priority is to kind of get money out of politics and sort of prioritize more like, campaigns that are less influenced by like, big.
- [57:43]
A
Money, My sweet summer child. We used to do that at the federal level. And Barack Obama is the first candidate who stopped taking the matching funds because he thought he could raise more money outside of it. And he did. And nobody has taken them since that.
- [57:56]
B
I'm aware of that phrase, let's get money out of politics. It's a big money out of politics. We spend less on money in politics than we spend on dog food. Okay? So I love my dogs, but the Constitution doesn't hinge on their behavior. The Constitution does hinge on the conduct of our political system. And so I don't have a problem with investing a lot of money into American politics, again with the understanding that we have robust bribery statutes and we have robust means of enforcing bribery statutes, for example. But let's go to New York for a minute. I guarantee you one of the reasons why the establishment alternative to Mamdani was Andrew Cuomo was that in spite of all of the Cuomo scandals, in spite of all of the sexual harassment, alleged sexual harassment, in spite of all of the misdeeds during COVID he still had the name Cuomo. And the name Cuomo in New York is worth a lot of money. Okay? It's worth a lot. It's one of the reasons why we continue to have 2,000 year old senators, because over the course of 1,500 years in office, their name gets known. Okay?
- [59:12]
A
Name identification is the number one predictor of candidates that get out of primaries. It's the biggest reason that Donald Trump won the 2016 GOP primary. It's the reason that you see these candidates over and over again, like running and winning is they have name ID going in. That's what I mean by incumbent protection. Every time you're trying to get big money out of politics, you are helping the candidate who's already famous.
- [59:37]
B
If you're saying I hate Congress and let's get big money out of politics, I say pick a lane, pick a lane. Because if you don't want big money in politics, you love this Congress. If you want reform, if you want real change, if you want to end this gerontocracy that we often have running this country, which by the way is pretty striking when you go and visit other countries. I was in Ukraine in 2023 covering the war, talking to senior Ukrainian government officials. And there were two things that struck me when talking to senior Ukrainian government officials. I think I was the. When I was in the rooms with them, I was often the oldest person in the room. I was about to say, don't you say anything. I was often the oldest person in the room. And the other thing is, I noticed is they talked like normal people. They didn't talk in like the consultant speak and the talking points and all of that. So one thing I wanted to impress upon people, if you're saying get big money out of politics, one of the things you are saying subliminally with it is let's maintain the status quo. And if you're good with that, I'm going to disagree with you. But at least just let's be clear about what this is.
- [60:53]
F
First of all, thank you so much for agreeing to talk. I guess I had one point about the money doesn't matter election. And I guess you can look at it in a broad aspect and say, yeah, incumbency rates haven't really changed before and after. But when looking at like particular cases, for example, demal Bowman versus Whitmer in the primaries as, as well as Latimer, not Whitmer, forgive me, and Bush against Wesley Bell. It felt very much so that money did in fact kind of push the race by running campaigns about like, very neat. Like for example, the fire alarm ringing. How can you reckon with the fact that money doesn't really matter while also simultaneously shifting some races very dramatically?
- [61:31]
A
Money absolutely affects down ballot races where name ID is low. The money is for the name ID every time. If you're a political operative, it is all you're doing, all of those ads, everything at the, at down ballot races, name id, name id, name id. So money does matter down ballot. But statewide Senate race, national Presidential race. That's where the money's no longer predictive. It used to be, by the way. I could tell you who would win by how much money they raised. It's why it used to be such a big news story when your FEC reports would come out. But that's changed. Basically there's an amount that is sufficient and everything over that amount is just diminishing returns. And at some point negative returns there are, you know, not to pick on the right to rise, folks. That was Jeb's super pac. Jeb, exclamation point. I mean, I think they actually were lighting money on fire to stay warm in the winter. Like there was nothing for them to do with the money at some point. Well, at that point, the money's just not going to be predictive and it's not going to matter.
- [62:33]
D
Thank you for speaking. You guys were actually my number two on Spotify Rap last year. So I really enjoy your podcast. My question is that I think most people would say that the Roberts scored has generally been very protective of the First Amendment. However, I think from fire's perspective, and some very much pro free speech perspectives, this term was less so with the TikTok decision, with the Paxton decision, with the denial of writ when it came to the two gender shirt with the Paul Clement case about abortion limit zones and also say, I think some people would say, are there concerns about and I guess you referenced it with Judge Thapar. How will text, history and tradition potentially replace tiers of scrutiny and what will the impact of that be on a lot of these judge made First Amendment precedents going back to Holmes and Brandeis, which really aren't based upon originalism. I think even Robert Bork in the 70s argued First Amendment really from an original perspective only protects political speech. So I guess with those two in mind, what do you think the future of the First Amendment could look like?
- [63:31]
B
I'm so glad you asked about the TikTok and the Paxton case, because I would say that this is maybe the only time in advisory opinions history that one or both of us has disagreed with the Fire position on those cases. And I think one of the differences is that in both TikTok and in Paxton, the question is whose speech is truly being implicated here? In my position in both TikTok and Paxton was that the core issue here involved speech or involved speech or access to information that was not constitutionally protected. So at the core of TikTok was does the People's Republic of China operating through this corporate forum, have a right to participate in the American public square. And my answer to that was a hard no. Okay. Even if a lot of Americans had an incidental Burden on their First Amendment rights because they had chosen by mistake TikTok to use as their primary personal platform, rather than the other, all these other social media outlets that are not owned by or governed by the People's Republic of China, in my view, that's on you. If you've chosen to put your personal brand and your personal speech amongst the menu of sites that are available, all of whom in this menu have vast potential audiences that you can reach, you chose the one run by the People's Republic of China. There's like a moral hazard there. And so the core issue in TikTok did not involved an entity China and TikTok that didn't possess First Amendment rights, but did have, as the legislature found very negative, have negative effects on American national security. So I think that really the big issue there in TikTok was how much should the court take into account the incidental effect on American speech on those Americans who chose to use TikTok. And in my view, this is a. It's a prudential judgment, much more than a constitutional judgment, one reserved to the legislature. And then similarly with Paxton, again, nobody says that these kids have a right to say, see porn. In fact, all nine justices said, not only is there not a right to see porn, there's a compelling governmental interest in keeping them from seeing porn. And so then the question becomes the incidental burden on adults, how much does that incidental burden matter? And I think the big disagreement that I had with fire on Both that and TikTok was I just didn't see the incidental burden as really even being that big a burden at all. Oh, gosh, I have to go to Instagram is not a giant burden, or I have to show id like the way I show id. If. Well, I was going to say the way I show ID when I go to a strip club, I do not do that. The way people show ID when they go to a strip club, that's not a burden. And so I think that's the difference. And I think there's an interesting difference in a lot of First Amendment advocates between those who kind of believe that the present state of the law is pretty good, and those who would say, it could be a little better, it could be a little better. And I'm in the it could be a little better camp, definitely, when it comes to campaign finance. And I think some other folks are in a it could be A little better when it comes to, say, pornography or social media, et cetera. But I'm by and large in the camp that the present state of the case law is pretty solid.
- [67:10]
A
I will make a prediction that the tiers of scrutiny fall in the First Amendment in the next five years. But I will make another prediction where you have seen the justices, and particularly the ones that are most likely to be in the majority, talk about how to think about precedents that were not decided on originalist grounds. That that in and of itself is not a reason to overturn the precedent just because it would be decided differently today as an originalist or under text, history and tradition, that those reliance interests still matter, you know, the underlying sort of vibes theory. So I predict that tears of scrutiny fall in the First Amendment context. I also predict that a lot of those precedents are upheld. Okay, Molly, do we. I know we're. We're standing between them and dinner, but one more.
- [67:57]
G
Hi, I wanted your guys opinions on the recent Supreme Court decision that came down with the Mom Mood family that basically requires school districts to have opt out options for parents who believe their religious rights are being violated because of access to, you know, books that have LGBTQ instruction. Specifically, there are concerns that this would infringe on other parental rights and freedom of speech and freedom of inquiry of other kids because school districts would then opt to not even think about offering that instruction because it would just be such a large burden on the school districts.
- [68:40]
A
Yeah, I mean, a big. We were actually going to talk about this in a future episode, but a really interesting way to think about the tension between the Kennedy v. Bremerton case about the prayer on the 50 yard line and the Mahmoud case is what is coercive for students. And how do we weigh that? In the Kennedy case, of course, you had the three dissenters saying that that prayer in football games would be coercive on students. They would feel the need to participate because that's the power that teachers have. When they are saying this is good and you look up to that teacher, then you are coerced into saying this is good too. But the same three dissenters in the Mahmoud case are saying, well, teachers reading this book and saying this is good, even though it's against your religious practices at home, is not coercive. There's differences in age, high school to elementary school, but you think that would cut the opposite way. There's differences in topics, certainly, but they both deal with coercion in religion and I wish they had addressed that.
- [69:47]
B
I believe the Mahmoud case was right outcome, wrong reasoning. And by right outcome, I mean under the facts of the case. What you saw in the Maryland school board was outright religious discrimination. In other words, it was granting some religious objections and denying others. So, for example, a religious objection involving a visual image of Muhammad, for example. And so then you're getting the state and the business of picking and choosing between competing religious viewpoints as to which ones it's going to honor with opt out and which ones it won't. So to me, I wonder if you could have actually even maybe gotten to seven, two on this case if it was very narrow that once you grant opt outs, you can't opt out for favored viewpoints and deny opt outs to.
- [70:40]
A
Disfavored viewpoints, whereas the court in this case said you must offer opt outs. That's what was a little bit surprising, I think, to both of us.
- [70:47]
B
It seemed to, and you correct me, Sarah, if you think I'm overreading the case, but 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. That's extremely difficult because especially the way in which as. As American politics has become more contentious, what I've started to see is people are pulling more and more things into their religion that are often been traditionally thought of as mainly political. And so there seems to be a kind of a thought process that goes something like this. I don't like this, and I'm Christian. Therefore, if you're exposing this to me, then you are violating my rights as a Christian. But that's not. One does not automatically flow into the other. So, for example, I don't like Duke basketball and I'm a Christian. Does that mean that Christians can't like Duke basketball? Well, yeah, I'm sorry, wrong example. Duke basketball is evil, but.
- [72:10]
A
She is a Duke student. What are the chances it's too good?
- [72:14]
B
That is hilarious. Okay, that is hilarious. But anyway, it's only because of pain that was inflicted on me before you were born in the year 1992 by Christian Laettner. But anyway, so it is not the case that if I don't like something and I belong to a particular faith, that therefore my dislike is inherently, inextricably intertwined with my religious freedom. And this is what I fear is going to happen partly as a result of this. And so I think it was way. The reasoning was way over broad, but the precise Outcome that the school should have given the opt out was correct.
- [72:53]
A
Can I tell you though, on the flip side, historically, so weirdly, I wrote my law school note on 1988 fee shifting in First Amendment cases involving schools and religious practice, what was happening was the reverse of what you're talking about. And I think unfortunately in a lot of our politics and perhaps law as well, we're just seeing pendulum swings. That one side took the pendulum up too far and now the other side wants to swing the pendulum to sort of show them what it feels like. And what was happening in Certainly like the 90s and early aughts, if a school was allowing any sort of religious practice, there were a lot of impact litigation groups on the left that were then bringing 1983 lawsuits against those schools. And if you win a 1983 lawsuit, meaning that the school is found to have violated your constitutional rights, there's 1988 fee shifting provisions where then they also have to pay for your attorney fees for bringing the case. There was then a huge incentive that if the ACLU sent you a letter that you would stop whatever the practice was, even if it was your student's religious expression. And it would have been totally constitutional. Because the risk is that maybe you're wrong that it's constitutional or a judge finds that it's so, and now you're going to be out a huge amount of money. So schools were incredibly unprotective of their students, free expression and religious liberties within the school context because of those pretty perverse incentives. And I think you're seeing the pendulum swing to some extent and history is kind of important to remember on that front doesn't make it right. But I think to understand this, you have to understand that.
- [74:47]
B
Let me just say something for the free speech, the fees and successful free speech cases that also helped me make a living for a lot of years. Although I will say one thing that was so unfortunate, Sarah, was I spent all these years litigating free speech cases working for nonprofits where when we won the fee award, I didn't get it. It went back to the nonprofit. Otherwise I'd be rolling up here in my free speech Lamborghini and it'd be amazing.
- [75:15]
A
You certainly surely saw, though I'm sure you were never doing it, but using those fee shifting provisions to bully organizations.
- [75:22]
B
Oh, for sure. I mean, that was the source of an awful lot of speech suppression, as you accurately say, was fear of lawsuits. And then that led to an entire strand of case law around does the fear of an establishment clause case or fear of an establishment clause violation provide a sufficient justification for a free speech or free exercise violated.
- [75:48]
A
Yeah. And then of course, these schools get pressed between both. Thank you FIRE so much for hosting us. Thank you National Constitution center, and to all you students, go out there and fight the fight.
- [76:16]
C
Mike and Alyssa are always trying to outdo each other. When Alyssa got a small water bottle, Mike showed up with a 4 liter jug. When Mike started gardening, Alyssa started beekeeping.
- [76:27]
B
Oh, come on.
- [76:28]
C
They called a truce for their holiday and used Expedia trip planner to collaborate on all the details of their trip. Once there, Mike still did more laps around the pool. Whatever you were making to outdo your holidays, we were made to help organize the competition. Expedia made to travel.