Advisory Opinions x FIRE “So to Speak” Crossover

Episode Title: Free Speech and ‘The Executive Power’ | FIRE Crossover
Date: September 4, 2025
Host: Nico Perino (FIRE), with guests Sarah Isgur and David French (Advisory Opinions, The Dispatch)

Overview

This bonus crossover episode brings together the hosts of Advisory Opinions, Sarah Isgur and David French, with FIRE's executive vice president Nico Perino (host of the “So to Speak” podcast). The group covers the intersection of free speech, constitutional law, the evolution of the conservative legal movement, and the shifting boundaries of executive power—especially amid the Trump administration and current constitutional challenges. Topics include the TikTok ban, First Amendment controversies, the presidency’s growing power, and the health of the legal and political systems underpinning free expression.

Podcast Origin Story & Structure

[03:23–07:00]

• Sarah and David recount how Advisory Opinions came together, stemming from a fleeting 2016 encounter (while considering a third-party presidential run) and their mutual involvement with The Dispatch.
  • Quote: “The origin story begins in… 2016 …I almost ran for president.” – David French [03:32]
  • Sarah joined after managing Carly Fiorina's campaign; they clicked quickly, despite only meeting minutes before the idea for the podcast was floated.
• Their process is informal but rigorous: “Maybe 24 hours beforehand, we’ll set an order, or at least the topics…but we’re putting in many, many hours.” – Sarah Isgur [06:16]
• The show’s unique value: deep dives into circuit court decisions—“I think one key to our success is we’re…covering [the judiciary]…right when sort of this demand started to grow for more legal coverage.” – David French [07:01]

Focus on the Judiciary & Book Project

[07:00–09:09]

• Discussing Isgur’s forthcoming book, Last Branch Standing, which posits the judiciary as the “only branch of government the founders would recognize right now.”
• The Supreme Court’s dynamism, especially regarding modern controversies like the TikTok case.

Free Speech Battles: TikTok Ban & FIRE’s Mission

[09:17–14:20]

• The hosts highlight their rare points of disagreement with FIRE, specifically around the TikTok ban and age verification laws.
  • “There’s a First Amendment interest on both sides. Now, the TikTok case is a little different.” – Sarah Isgur [11:07]
• The TikTok ban is viewed as a historic speech restriction—“the first time…the federal government has outright banned a communications platform.” – Nico Perino [11:51]
• David and Sarah note genuine national security concerns (e.g. for military personnel), but stress the complexity and precedent-setting constitutional implications.
  • “You were literally trackable as an individual, which is obvious national security concerns in those kinds of situations.” – David French [13:15]
• Reflection on FIRE’s principled stance, refusing to tailor cases for donor sentiments: “You could not do that. You could not say, ‘Well, this is horrible, but…’ Because then you’re ticking off half your staff.” – David French [16:39]

The Expanding Executive & Diminished Checks and Balances

[18:49–23:25]

• Discussion on the post-Trump presidency’s expansion of executive power, bipartisan acquiescence to these shifts, and why high stakes increasingly attach to elections.
  • “It’s become, ‘Well, I just have to win all the time then.’ …Because every election you’re electing a more powerful person and that is breaking our brains, it’s breaking our country.” – David French [20:11]
• Sarah warns that the accumulation of powers by presidents of any party will ultimately be usable by their opponents, escalating partisanship and “runaway train” dynamics.
• The judiciary, once a safety valve to balance congressional or executive excess, must now rein in the executive branch, as Congress has atrophied.

Executive Power, The Unitary Executive, and the Court’s Response

[26:02–34:04]

• Deep dive into originalism and the “unitary executive” theory—presidential control over the executive branch and its agencies, prompted by cases on federal agencies’ independence.
  • “The president is the [entire] executive branch….So that means anytime Congress is trying to limit the president’s authority over the executive branch…they’re losing.” – David French [26:02]
  • “If the agency…is exercising executive power…it has to be up to the President who holds that power.” – Sarah Isgur [30:47]
• The ambiguous language of Article II (“the executive power shall be vested in a President”) breeds uncertainty and constitutional litigation.
  • “There’s the one sentence that’s really basically causing us a ton of headaches.” – David French [32:44]
  • “Cato in number four says that the first sentence of Article two is…vague and inexplicit. So what is the executive power?” [34:30]

Principle versus Outcomes and the Current Free Speech Climate

[36:31–42:49]

• Parallels between interpretive ambiguity in the First Amendment (“What is the freedom of speech? What is abridging?”) and Article II—leading to cycles of overreach and constitutional crises.
• Growing admiration among parts of the “new right” for a stronger executive and even monarchy—a rejection of traditional republican checks.
• Historical context: “...The original job of the presidency was like a George Washington job description…and an Old Whig says…‘they’re not all going to be George Washington.’ …He was right.” – David French [42:49]
• The diminishing effect of intended checks like the Electoral College and impeachment, replaced by practical dependence on presidential character.

Executive Power and Threats to Free Speech

[46:28–53:07]

• Link between accumulation of executive power and the chilling future for speech and democracy; citing historical examples like Woodrow Wilson, and current events involving the Trump administration targeting media outlets and critics with state power.
  • “If somebody does have tyrannical aspirations, if somebody does have authoritarian dreams and goals...they’re coming for speech. And Trump has come for speech.” – David French [48:27]
• Nuanced defense of principled free speech, regardless of the target’s popularity or virtue:
  • “Yeah, I agree Harvard needs reform, but not like this...Arguing against that [constitutional violations] makes me pro the censorious atmosphere they established on campus.” – David French [50:08]

Weaponization of Law, Federal Prosecutions, and Dangers for Public Service

[54:01–61:15]

• “Three felonies a day”: Explosion of federal statutes enables selective or politicized prosecution.
  • “Show me the man, I’ll show you the crime.” – Sarah Isgur [54:05].
• Recent mortgage fraud accusations against political opponents illustrate these dangers.
  • “Prosecute mortgage fraud. Fine. Prosecute only Democrats’ mortgage fraud, not fine.” – David French [57:29]
• First Amendment and selective prosecution: courts generally reject claims of targeted prosecution, but the boundaries are being tested.
• The political climate is so toxic that good people are increasingly deterred from public service—legislatures morph into “influencer Congress.”
  • “They’re hiring bookers and people to…make social media—people who are good on TikTok.” – Sarah Isgur [60:24]

The Conservative Legal Movement: At a Crossroads

[62:24–70:26]

• Conservative legal movement is split between classical liberal originalists (represented in the judiciary) and ascendant MAGA/populist elements.
  • “The legal movement had a few more antibodies in it to resist MAGA than the political movement did. But it cannot endure in any recognizable form if the political movement remains almost entirely in this MAGA populist movement.” – David French [65:16]
• New tension: “Common good constitutionalism” (social justice for the right) and resistance from law students, with much greater division inside conservative student circles.
  • “When the conservative breaks from Republican...the Republicans are like, ‘yeah, but we’re the ones who fought this fight for you…we want these outcomes that happen not to be conservative…’” – Sarah Isgur [67:12]
• The rise, limits, and possible retreat of common good constitutionalism (Adrian Vermeule), and the enduring incoherence of a legal movement grounded primarily in personal loyalty to Trump.
• The whiplash on legal positions: “The original TikTok ban was one of the good ideas in my view from the first Trump administration…And then by 2023, 2024. No, no, TikTok, it’s unconstitutional.” – David French [71:59]

Notable Quotes & Memorable Moments

• “We have a slumber party usually the night before we do something in person together. So he stays at the house and hangs out with my 5 year old who calls him great grandpa Steve…We have no idea [why ‘Steve’].” – Sarah Isgur [09:33]
• “...We should all want to shrink the power of the presidency. And maybe Congress shouldn’t be so quick to create all of these Alphabet agencies...” – Sarah Isgur [31:47]
• “I’m a process girl living in an outcomes world.” – Sarah Isgur [74:37]; echoed as the key ethic of principled legal advocacy.
• On dangers of choosing teams over principles: “If you just throw [process] out the door for outcomes that you like, well, the whole constitutional deal goes out the door with it.” – Nico Perino [74:37]

Timestamps for Key Segments

• Podcast origin & process: 03:23–07:00
• Judiciary’s ascendancy & “Last Branch Standing”: 08:31–09:09
• TikTok, First Amendment, and FIRE’s mission: 09:17–14:20
• Executive Power & partisanship spiral: 18:49–23:25
• Unitary executive & ambiguous Article II: 26:02–34:04
• Interpretive ambiguity & executive excess: 36:31–42:49
• Executive power as precondition of speech threats: 46:28–53:07
• Prosecutorial overreach & deterrents to public service: 54:01–61:15
• Status and future of the conservative legal movement: 62:24–70:26
• Evolving conservative legal theory (“common good constitutionalism”): 65:09–70:26
• Principle versus outcomes (process): 74:37

Tone & Style

Conversation is lively, wonky, accessible, and often humorous—balancing “nerdiness” (deep dives into administrative law) and personal rapport with a sense of constitutional urgency. Speakers are candid about the breakdown of norms and the difficulty of defending principles when institutions—and the people behind them—are changing at breakneck speed.

For Further Listening

This summary covers substantive discussion and omits sponsor advertisements and outro content. For detailed insights into any of the themes—TikTok, the unitary executive, FIRE’s free speech battles, or the state of legal conservatism—see timestamps above.