Advisory Opinions Podcast Summary

Episode: Vindictive Prosecutions
Date: October 16, 2025
Hosts: Sarah Isgur & David French
Podcast: The Dispatch

Episode Overview

This episode centers on three major topics:

1. The legal and constitutional questions raised by a Supreme Court case over Colorado’s ban on "conversion therapy" for minors (Chiles v. Colorado).
2. The indictment of New York Attorney General Letitia James, with discussion of whether it constitutes "vindictive prosecution" versus parallelism with her own case against Donald Trump.
3. Several notable orders and denials from the Supreme Court, including attention-grabbing dissents and statements respecting denials of certiorari.

Throughout, Sarah and David tackle listener questions and probe deeply into both legal doctrine and the practical/political implications of current headline cases.

1. The Supreme Court’s "Conversion Therapy" Case: Chiles v. Colorado

Setting the Table ([02:35])

• Sarah introduces a flood of thoughtful listener questions following the previous episode’s discussion of Chiles, a case on Colorado’s ban on licensed therapists providing conversion therapy to minors.
• David provides the statutory definition of conversion therapy, emphasizing that the legal definition is narrower than the colloquial idea:

  “You’re not dealing with what your idea of what conversion therapy is. You’re dealing with the definition…as enacted by the state. And so those are the stakes of the case.”
  (David French, 05:07)

Listener Hypothetical: Comparing to Anorexia Therapy Laws ([05:30])

• A college sophomore asks whether a law barring therapists from encouraging anorexic behavior is meaningfully different and whether strict scrutiny standards could allow one law but not the other.
• David: Calls it a "super smart" question and ties it to his skepticism about whether strict scrutiny is "strict in theory, fatal in fact" or if some content-based speech bans can survive scrutiny:

  “Even the liberal justices here saying this thing could pass strict scrutiny…Are there laws that would pass strict scrutiny in the right circumstances?...Very interesting question.”
  (David French, 06:36)

The Standard of Care Problem and Licensing ([07:54])

• Sarah: Argues any distinction comes down to whether banned conduct violates the “standard of care” for licensed professionals, especially in talk-only professions like psychotherapy.
• Key challenge: “If the state can demand that a person learn certain things to have a job that only uses speech like psychotherapy, why can't they forbid certain things that are also speech?”
  (Sarah Isgur, 09:35)
• David: Is deeply skeptical that licensing should allow states to override the First Amendment, especially as licensing itself is a political product:

  “I’m extremely mistrustful of the political process that yields such standards and prohibitions. And I do not think it is superior to the First Amendment.”
  (David French, 11:29)

Regulatory Overreach and Speech as Conduct ([12:34])

• Sarah raises that if speech by licensed therapists can’t be regulated, should state licensing of talk-only professions be constitutional at all?
• David: Accepts some state licensing is necessary (criminal background checks, educational requirements), but fears regulation over “crucial, sensitive issues like morality and religion” is different from standard quality control.

Empirical Evidence: Is Conversion Therapy (by Statute) Harmful? ([14:41])

• Listeners (including doctors) challenged Sarah and David about the empirical record on conversion therapy’s harm.
• Sarah notes: Colorado did not introduce any evidence that “talk-only” conversion therapy as defined in the law is harmful, only that some forms (e.g., aversion therapy) are.
• David: Points out this undercuts the supposed scientific neutrality of licensing bodies, which often cite “peer-reviewed consensus” that isn’t as clear as claimed:

  “If this was a slam dunk…why is Colorado not introducing the evidence…that conversion therapy…is going to be harmful to such an extent that it’s subject to overriding the speech rights of this therapist…”
  (David French, 18:31)

Precedent: The NIFLA Case ([19:53])

• Sarah dives into NIFLA v. Becerra (2018), where a Supreme Court majority struck down a California law compelling speech by pro-life pregnancy centers.
  • NIFLA seen as strong precedent against viewpoint-based regulation in licensed professions.
  • She contrasts NIFLA’s obvious viewpoint discrimination (“only targeting pregnancy centers…”) to the broader scope of Colorado’s law, but acknowledges the Court might see Chiles similarly.
• David notes that licensing/regulatory boards are increasingly activist, not neutral:

  “Licensing schemes…are constantly being lobbied by activists…And then once political pressure yields the desired results, you retreat behind the alleged dispassionate reputation…”
  (David French, 23:22)

Notable Quote ([25:16]):

Justice Kennedy Concurrence in NIFLA:

“This act is a paradigmatic example of the serious threat presented when government seeks to impose its own message in the place of individual speech, thought and expression.”
(Quoted by Sarah Isgur)

Memorable moment: Sarah admits they should’ve addressed NIFLA in more detail last week and concludes, “it’s more like NIFLA.”

2. Letitia James Indictment: Vindictive Prosecution Allegations

The Case ([28:58])

• Sarah summarizes: NY AG Letitia James charged with bank fraud/false statements over a Virginia property, drawing parallels to her own prosecution of Donald Trump.
• Andy McCarthy’s quote frames both cases as “fraud cases with no fraud victims.”

  “What do you think, David? Does he have a point, and is it a legal point or just a political point?”
  (Sarah Isgur, 30:56)

David’s Analysis ([30:56])

• David sees the James indictment as a “punitive indictment,” more political than substantive:

  “It’s very hard to look at these facts and say this is the kind of case that just is regularly brought. This strikes me as a very unusual case.”
  (David French, 31:38)

• Describes evidentiary weakness and prosecutorial irregularities surrounding the case.

Game Theory and Lawfare ([33:05])

• Sarah: Outlines the argument that "fighting back twice as hard" is game theory’s answer to norm-breaking “lawfare.”
• She is skeptical it’s good for democracy, but acknowledges this is often the theory animating such prosecutions.

David’s Pushback ([34:21])

• Doubts that reciprocal escalation will lead to de-escalation:

  “Escalate to de-escalate really generally tends to mean escalate to escalate… I do not see any indication that escalation is leading to anything other than more escalation.”
  (David French, 34:57)

Censorship Deterrence – A (Possible?) Counterexample ([36:06])

• Sarah points to free speech pushback on campuses as perhaps a successful example of deterrence “working.”
• David is skeptical, seeing the swings as negative polarization, not true de-escalation or restoration of norms.

Motions and Process Issues ([38:11])

• Sarah predicts motions to disqualify the prosecutor, for selective/vindictive prosecution, or for insufficient evidence.
• She muses about the risk of further eroding faith in the judiciary if dismissals are perceived as partisan.

David’s Take: How Should Judges Respond? ([40:41])

• David is uneasy about high-profile dismissals by seemingly partisan judges, but insists judges must decide the motions on the legal merits, not political optics.

3. Supreme Court Denials and Notable Orders

Highlights ([42:47])

Sarah runs through several new cases:

(A) Jury Misconduct in Death Penalty Case ([46:42])

• Egregious facts: juror with personal trauma screams, punches wall, and browbeats a deadlocked jury into a death verdict.
• Sarah and David both troubled—suggest clemency as best remedy to avoid “Pandora’s box” of revisiting all jury deliberations via the courts.

Memorable David quote:

“This is one of those cases where clemency…is an interesting way to cut through the…round hole…without sort of disturbing and opening Pandora's box on the larger precedent.”
(David French, 49:20)

(B) Parental Rights in Gender Transition Disclosures ([49:26])

• Court denies cert in a case involving school secrecy of students’ gender transition; Justices signal strong interest in reviewing a cleaner case.
• David warns school districts:

  “If you have a policy that is blocking parents or teachers from telling parents that their child is transitioning socially at school, you’re going to lose…You need to be rethinking those policies pronto.”
  (David French, 54:12)

(C) Unincorporated Bill of Rights? ([54:49])

• Justice Gorsuch suggests the 7th Amendment jury right should be incorporated against the states—which might one day require the Court to clarify its theory of incorporation (Due Process v. Privileges or Immunities).
• Sarah: “Until they're willing to…, you don't have enough justices who want to play with the privileges and immunities fire.”

4. The "Sela Law" Pronunciation Saga ([57:29])

• Sarah confesses to years of mispronouncing the name of the precedent (Seila Law/Sela Law) and, after diligent effort, realizes she’s still not saying it right.
• “It turns out I can't read, which I already kind of knew…” (Sarah Isgur, 58:02)
• Light moment capping a dense episode.

Notable Quotes

• “Why can the state require a licensing scheme in a profession that is only speech based?”
  — Sarah Isgur, [12:34]

• “I’m extremely mistrustful of the political process that yields such standards and prohibitions. And I do not think it is superior to the First Amendment.”
  — David French, [11:29]

• “It’s very hard to look at these facts and say this is the kind of case that just is regularly brought.”
  — David French, [31:38]

• “Escalate to de-escalate really generally tends to mean escalate to escalate.”
  — David French, [34:57]

• “If you have a policy that is blocking parents…from telling parents that their child is transitioning…you’re going to lose.”
  — David French, [54:12]

Timestamps for Important Segments

• Chiles/Conversion Therapy Primer: 02:35–19:53
• Standard of Care / Licensing Discussion: 07:54–14:41
• Precedent (NIFLA & Regulation): 19:53–27:29
• Letitia James/Trump Vindictive Prosecution: 28:58–38:11
• Supreme Court Denials/Jury Room Mayhem: 42:47–54:49
• Incorporation Doctrine & Sela Law: 54:49–58:23

Tone & Style

• The discussion is simultaneously rigorous, wonky, collegial, and wry.
• David and Sarah challenge each other, pull in sharp listener questions, and admit where their own prior analyses were incomplete or needed revisiting.
• While deep into constitutional doctrine, they remain accessible and peppered with humor (especially over pronunciation gaffes).

Utility for New Listeners

This episode delivers a dense, debate-rich exploration of government regulation versus the First Amendment, procedural justice versus political escalation, and how precedent shapes the Court’s approaches to new social flashpoints. It’s especially useful for law students, policy analysts, and anyone puzzling over when government can (and can’t) regulate speech in licensed professions—or when “fighting fire with fire” in law and politics simply burns the house down.

End of Summary