So to Speak: The Free Speech Podcast – Episode 251

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Date: September 4, 2025
Host: Nico Perrino (FIRE)
Guests: Sarah Isgur and David French (Hosts of Advisory Opinions)

Overview

In this episode, Nico Perrino sits down with Sarah Isgur and David French of the Advisory Opinions podcast to dissect the state of the American presidency’s power, its impact on free speech, and where the conservative legal movement finds itself amid today’s shifting political landscape. The conversation covers the evolution of executive authority, recent legal and constitutional battles (particularly concerning free expression), and the repercussions for American democracy as both law and culture struggle to catch up with unprecedented presidential reach.

Key Discussion Points & Insights

1. The Rise and Consequences of Executive Power

• Pendulum Swinging Toward Stronger Presidency:

  • Presidents have gathered increasing executive power over recent decades, moving from Obama’s “pen and phone” approach, through Trump’s surge in executive orders and Biden’s stretch for authority on issues like the eviction moratorium and student loan forgiveness.

    “I don't see how the pendulum can swing back with the runaway train we're on where it's Obama's pen and phone. It's Trump with more executive orders ... It's Biden with, you know, saying he does not have the power to do an eviction moratorium, student loan, debt forgiveness, the vaccine mandate…” — Sarah Isgur [00:00]

• Implications for Free Speech

  • A powerful presidency directly threatens free expression. When one branch holds outsized power, historical precedent (Wilson, FDR, Nixon) shows speech is often the first casualty.

    "All of these problems we're talking about with the presidency are upstream then of problems with speech." — Sarah Isgur [43:30]

2. Origins and Approach of Advisory Opinions

• Backstory

  • French and Isgur didn’t know each other well at first, but saw a gap for deep legal analysis focusing not just on the Supreme Court but on circuit courts and the judiciary's broad influence.

    "One of the value adds that we bring...is we're not just SCOTUS. The average American doesn't understand how much the circuit courts of appeals...really do shape our lives." — David French [05:51]

• Preparation Philosophy

  • The show seeks to educate about the judiciary as the 'last branch standing’, critical as legislative and executive branches have strayed from their constitutional moorings.

3. TikTok, National Security & the First Amendment

• Landmark Case Discussion

  • FIRE’s view: The TikTok ban is the first outright ban of a communications platform by the federal government—a significant First Amendment precedent.

    "This is the first time in American history...the federal government has outright banned a communications platform...that’s a pretty big hole in the First Amendment." — Nico Perrino [10:42]

• National Security Tensions

  • French underscores that modern technology's data collection (location, purchase history) raises qualitatively different national security questions than Cold War-era media bans.

    "You were literally trackable as an individual, which is obvious." — David French [11:43]

4. The Dangers of Partisan Prosecution and the 'Three Felonies a Day' Era

• Expansion of Federal Crimes and Targeted Enforcement

  • When executive power and prosecutorial discretion combine with a bloated federal criminal code, anyone can be targeted for political reasons ("Show me the man, I'll show you the crime").

    “I don't think anyone at this point can argue that there aren't too many federal crimes." — Sarah Isgur [55:38]

• Rule of Law Concerns

  • When partisan priorities dictate prosecution, foundational First Amendment and due process protections come under threat.

5. Checks, Balances, and the Weakening of Constitutional Guardrails

• Failing Firewalls: Electoral College & Impeachment

  • Both Intended checks on executive overreach (as imagined by the constitutional framers) are essentially gone with the emergence of inflexible partisanship.

    "So two of the prime checks on executive abuse are just dead letters right now. And so where does that leave us? That leaves us with a president, with us having to depend on the character of the president more than the Founders intended. And I think that's a problem." — David French [43:21]

• The Court’s Resurgent Role

  • Supreme Court (and lower courts) now act as belated brakes on executive/administrative overreach, but only within cases brought before them, raising questions about long-term efficacy and legitimacy.

6. The Conservative Legal Movement: Crossroads and Contradictions

• From Classical Liberalism to Common Good Constitutionalism

  • The Federalist Society and the modern conservative legal movement once championed process and neutrality (textualism, originalism, procedural fairness).
  • The shift to populist, outcomes-driven legal projects (“common good constitutionalism”) threatens that legacy, as movement conservatives increasingly clamor for results—regardless of process.

    “It is much easier to be in dissent...Now when you're winning, they expect to win everything.” — Sarah Isgur [64:41] “Whatever is left of the conservative political project is now completely a wholly owned subsidiary of MAGA. Not the case in law.” — David French [61:29]

• Divided Law Students & Institutional Instability

  • Conservative law students, themselves a minority, are now splintered, with some enticed by new reactionary and populist tendencies, though the anticipated post-Dobbs shift has not fully materialized.

7. Advice for the Future and the Role of Civic Culture

• Process Over Outcomes

  "I'm a process girl living in an outcomes world.” — Sarah Isgur [71:12]

  • The hosts agree: preservation of the constitutional process rather than pursuing favorable outcomes is the only reliable defense against abuses—regardless of which party, president, or ideology dominates.

Notable Quotes & Memorable Moments

• On Donor Pressure and Nonpartisanship

  “If you are a nonprofit in these social conservative circles, taking on Donald Trump or taking on his administration, good luck selling that to your donors.” — David French [70:44]

• On the Temptation of Monarchy

  “If you have a reading of a vague constitutional provision that enhances and counters the small r republican ethos of the Constitution, that's when we should be looking at it with some serious side eye." — David French [35:08]

• On Speech and Tyranny

  "Free speech is the dread of tyrants. It is the first thing that they wish to extinguish." — David French quoting Frederick Douglass [45:29]

Timestamps for Major Segments

• 00:00 — Opening: The Ever-Growing Power of the Presidency
• 02:13 — Advisory Opinions: Origin Story & Podcast Philosophy
• 05:51 — Circuit Courts, Judicial Power, and Value Added
• 07:42 — Isgur’s Book: "Last Branch Standing"
• 10:23 — The TikTok Ban, National Security, and First Amendment
• 12:43 — Donor Influence & Nonpartisan Free Speech Advocacy
• 16:03 — Consequences of Executive Power for Free Speech
• 22:15 — The Supreme Court and the Administrative State
• 33:33 — Originalism vs. Expansionist Readings of Article II
• 43:30 — Executive Power’s Ripple Effect on Free Speech
• 50:25 — The Scale of Federal Power: Prosecution, Corruption, and Speech
• 56:21 — Why Good People Shy Away from Politics and Judiciary Today
• 59:59 — The Conservative Legal Movement: Shifts and Schisms
• 64:41 — "Process" vs. "Outcomes" in Law and Society
• 71:12 — Final Reflections: The Promise of Principles Over Partisanship

Tone & Language

• Informal, sharp, wry humor balanced with substantive legal analysis
• Both Isgur and French blend pop culture and history with deep-dive constitutional discussion
• Discussion flows naturally, with ample back-and-forth, including personal anecdotes and even bourbon jokes

Takeaways for Listeners

• The presidency’s aggrandizement threatens the balance of American government and, by extension, free speech.
• Both parties have contributed to the runaway train of executive power, and the pivot away from process-based governance imperils both legal and political stability.
• The conservative legal movement stands at a crossroads: whether to recommit to process and principle, or yield to the pressures of Trump-era populism and outcome-driven activism.
• Free speech advocates must stay vigilant: as government power expands—no matter who wields it—the temptation to control the flow of information and silence dissent grows stronger than ever.