Strict Scrutiny: Episode Summary – The Conservative Push to Sue the Media Into Oblivion

Podcast Information:

• Title: Strict Scrutiny
• Host/Author: Crooked Media
• Episode: The Conservative Push to Sue the Media Into Oblivion
• Release Date: March 10, 2025

Introduction

In this episode of Strict Scrutiny, hosts Leah Litman, Kate Shaw, and Melissa Murray delve into the escalating conservative strategies aimed at undermining media organizations through litigation. They explore recent Supreme Court activities, analyze significant court decisions, and feature an insightful interview with David Enrich, an investigative reporter and author of Murder the Truth.

Breaking News: President Trump's Joint Session Address

The episode opens with a discussion of President Donald Trump's lengthy joint session of Congress address. Hosts dissect the content and implications of his nearly 100-minute speech.

• Key Highlights:

  • Misrepresentation of Court Decisions: Trump falsely claimed that the Supreme Court's decision in Students for Fair Admissions vs. Harvard ended Diversity, Equity, and Inclusion (DEI) policies across various sectors. Leah Litman emphasizes, “[...] that is absolutely, undeniably incorrect” (04:52).

  • Interaction with the Justices: A significant moment occurred when Trump thanked Chief Justice John Roberts, leading hosts to speculate about the underlying reasons. Kate Shaw notes, “He is about that attention economy and what he did got attention” (09:06), suggesting potential political motivations behind the gesture.

  • Supreme Court's Response: Less than 12 hours after Trump's speech, the Supreme Court rejected the administration’s attempt to freeze foreign aid funds, showcasing a narrow 5-4 decision. The decision was criticized by Justice Alito, whose eight-page dissent argued that the district court judge lacked jurisdiction (12:24).

Notable Quotes:

• Justice Alito: “Does a single district court judge, who likely lacks jurisdiction, have the unchecked power to compel the government of the United States to pay out and probably lose forever 2 billion taxpayer dollars? The answer to that question should be an emphatic no, but a majority of this court apparently thinks otherwise. I am stunned.” (14:32)

• Kate Shaw on Medicaid Attack: “He wanted to direct attention to Medicaid. And I think that was actually a great use of his political capital and revealed a real understanding of the attention economy.” (07:45)

Supreme Court Decisions and Analyses

The hosts provide in-depth analysis of recent Supreme Court rulings, focusing on environmental regulations and executive power.

1. City and County of San Francisco vs. EPA

   • Issue: Whether the EPA has the authority under the Clean Water Act to limit pollutant discharges into navigable waters.
   • Decision: The Court ruled 5-4 that the EPA exceeded its authority. Justice Alito, writing the majority opinion, argued that EPA's permit conditions overstepped statutory limitations.
   • Dissent: Justice Barrett, joined by other female justices, contended that the EPA's conditions were within its regulatory power, emphasizing the ordinary meaning of “limitations” (24:54).

   Notable Quote:

   • Justice Barrett: “It is commonplace for limitations to state that a particular end result must be achieved and that it is up to the recipient to figure out what it should do.” (27:59)

2. Smith and Wesson Brands Inc. vs. Estados Unidos Mexicanos

   • Issue: Mexico suing U.S. gun manufacturers for allegedly supplying firearms to Mexican cartels.
   • Legal Argument: Gun manufacturers invoked the Protection of Lawful Commerce in Arms Act (PLCAA), seeking dismissal based on immunity from liability for crimes committed with their products.
   • Oral Arguments: Justice Alito questioned the fairness of sovereign immunity, highlighting the asymmetry in legal protections between nations and states (32:57).

   Notable Quotes:

   • Noel Francisco (Defense Attorney): “[...] Budweiser might be potentially liable for every act of drunk driving.” (30:56)
   • Leah Litman on Alito’s Dissent: “He went on to say that the district judge here, Judge Amir Ali, 'grew frustrated and that he demanded the money be paid within 36 hours.'” (15:04)

3. Nuclear Regulatory Commission vs. Texas

   • Issue: Whether the NRC can license private entities to store spent nuclear fuel away from reactor sites.
   • Concern: Potential overreach by the NRC in authorizing private storage, raising security and regulatory questions (37:31).

Additional Cases:

• C.C. Davis Mauritius Limited vs. Antrix Corporation: Personal jurisdiction over foreign states under the Foreign Sovereign Immunities Act.
• Blom Bank Sal vs. Honickman: Applicability of Federal Rule of Civil Procedure 60B6 to amend complaints post-judgment.

Interview: David Enrich on Murder the Truth

David Enrich, investigative reporter and author, discusses his latest work focusing on the conservative legal movement's efforts to dismantle New York Times vs. Sullivan.

• Actual Malice Standard: Enrich explains that Sullivan established the requirement for public officials to prove that defamatory statements were made with "actual malice"—knowing falsity or reckless disregard for the truth (44:00).

  Notable Quote:

  • Enrich: “[The actual malice standard] basically ushered in this golden age of investigative journalism in America.” (45:33)

• Conservative Legal Strategies: Enrich outlines how figures like Clarence Thomas and Neil Gorsuch are spearheading initiatives to weaken Sullivan, thereby enabling more frequent and successful defamation lawsuits against the media.

  Discussion Points:

  • Impact of Dominion vs. Fox News: Enrich cites the Dominion case as evidence that existing libel laws can effectively address deliberate falsehoods when properly supported by evidence.
  • Shifting Judicial Perspectives: The hosts and Enrich discuss how Justices Thomas and Gorsuch, who once supported Sullivan, have begun to challenge its protections, citing personal grievances and broader political agendas.

  Notable Quote:

  • Enrich: “They want to weaken and delegitimize the media at every turn. And making it easier to win defamation cases against the media is one way they can do that.” (53:59)

• Case Study: Professor David Logan: Enrich details how Logan's flawed research inadvertently provided ammunition for efforts to overturn Sullivan, highlighting the dangers of misinterpreted legal scholarship in shaping court opinions.

  Notable Quote:

  • Enrich: “In 2021, Gorsuch relied almost entirely on this law review article by Logan... which turned out to be wrong or wrongly interpreted.” (60:38)

Forward-Looking Insights:

• Enrich predicts that while Sullivan may not be overturned immediately, subsequent cases could erode its protections, making it harder to hold powerful individuals accountable through the media.

  Notable Quote:

  • Enrich: “Even though [a potential narrowing of Sullivan] would not be an outright overturning, it has the potential to make it much harder for anyone to scrutinize what rich and powerful people are doing.” (62:11)

Court's Security Concerns and Threats Against Judges

The episode highlights alarming reports from Reuters about increased threats against federal judges, particularly those ruling against the Trump administration. Melissa Murray and Leah Litman discuss:

• Escalating Threat Levels: U.S. Marshals warning of heightened threats to judges, with some receiving anonymous pizza deliveries as intimidation tactics (18:00).

• Impact of Social Media: Elon Musk's aggressive tweets against federal judges may have contributed to the hostile environment, exacerbating the vulnerability of the judiciary (19:04).

Notable Quote:

• Kate Shaw: “Some of these comments are very explicit in their threats of physical harm to these public servants.” (19:04)

Audience Engagement and Community Updates

The hosts briefly mention the ongoing election for the president of the D.C. Bar Association, noting concerns about Bradley Bondi’s candidacy due to potential conflicts of interest related to his sister, Attorney General Pamela Bondi. They emphasize the importance of involvement in such elections to maintain checks on legal oversight.

Recommendations and Personal Segments

Leah and Kate share their latest reads and media, recommending books and shows that resonate with the podcast’s themes of legal scrutiny and societal impacts.

• Leah’s Recommendations:

  • Never the Washington's Relentless Pursuit of Their Runaway Slave, Owna Judge by Erica Armstrong Dunbar.
  • Upcoming workshop piece: Hila Carrie Karens Do Care in a Conservative Court.
  • Netflix series: With Love Megan.

• Kate’s Recommendations:

  • Workshop paper: Towards a New Equal Protection Paradigm by Issa Kohler Hausman.
  • Netflix series: Severance.

Conclusion and Upcoming Events

The episode wraps up with announcements about the Strict Scrutiny Live: The Bad Decisions Tour 2025, detailing upcoming shows in Washington D.C., New York City, and Chicago. Hosts encourage listeners to attend these live events for deeper discussions on Supreme Court decisions and their societal ramifications.

Production Credits

Strict Scrutiny is a Crooked Media production, hosted and executive produced by Leah Lipman, Melissa Murray, and Kate Shaw. The episode was produced and edited by Melody Rowell, with additional support from Michael Goldsmith, Kyle Seglin, Charlotte Landis, and others. The podcast is available on YouTube and various podcast platforms, with encouragement for listeners to subscribe, rate, and review to support the show.

Key Takeaways:

• The conservative legal movement is actively seeking to weaken New York Times vs. Sullivan, aiming to increase liability for media organizations.
• Recent Supreme Court decisions reflect a narrow, divided court potentially shifting towards conservative agendas.
• Increased threats against federal judges indicate a dangerous politicization and intimidation of the judiciary.
• Community involvement in legal oversight bodies, such as the D.C. Bar Association, is crucial for maintaining judicial integrity.
• Ongoing efforts by legal scholars and journalists are vital in countering movements that threaten foundational free speech protections.

Notable Quotes with Timestamps:

• Melissa Murray: “Cats are the ultimate mean girl. [...] To get 50% off your first order plus free shipping, head to smalls.com and use our promo code strict.” (00:01)

• Kate Shaw: “Mr. Chief justice, please report. It's an old joke, but when a man argues against two beautiful ladies like this, they're going to have the last word.” (01:40)

• Leah Litman: “She spoke not elegantly, but with unmistakable clarity. She said, I ask no favor for my sex. All I ask of our brethren is that they take their feet off our necks.” (01:53)

• Leah Litman on SFFA vs. Harvard: “That is absolutely, undeniably incorrect.” (04:52)

• Justice Alito: “What a little hierarchical monster. Oh, my God, like district court judges lick my face.” (15:04)

• David Enrich: “They want to weaken and delegitimize the media at every turn.” (53:59)

• David Enrich: “There is a war going on right now to delegitimize the news media.” (66:00)

• Kate Shaw: “Joel … Adam’s name? Adam’s name?” (70:19)

Note: Advertisements, intros, outros, and non-content sections have been excluded from this summary.