OA29: Cognitive Dissonance

Transcript

This transcript was generated automatically and may contain errors — the audio is the record.

0:01:18 Thomas: Hello and welcome to Opening Arguments. This episode 29 coming at ya for a second time this week, how exciting is that? How you doin' Andrew?

0:01:27 Andrew: Great, Thomas. How're you?

0:01:28 Thomas: Doing good. Well, let's celebrate it right now. We hit our Patreon goal.

0:01:35 Thomas: Oh, let's also give you credit for yet another prediction that you were correct on. You predicted that we would hit this goal very soon. I forget your exact prediction, but whatever it was, it was right. We hit our goal on patreon.com/law to do two episodes a week. How cool is that?

0:01:40 Andrew: Yeah, I'm I'm really excited. Also, slightly terrified. No, but this is this is fantastic. I think all of our listeners know about your change to your schedule, Thomas, which is really what's going to make it possible for us to do this twice a week, um, yeah.

0:02:07 Thomas: I did say we set this as a stretch goal and I told Andrew in Andrew, there is no way I'm doing two episodes a week of this until I quit my job. Well, good news, everybody.

0:02:14 Andrew: Yeah. Yeah. Me.

0:02:21 Thomas: I am quitting my job very soon. So this will start in January. That may sound weird because there's two episodes this week, but this is just the one odd week. It will start in January. We will have two episodes every week. And as such, we're going to do Thomas Takes the Bar once a week. We won't do it in every episode because I think that would be a little too much and it wouldn't maybe give people time to think about it and respond on Twitter and all that. So, so one of our episodes will have that as our segments and the other one will have our normal kind of question segments, breaking down the law, all that stuff. And I love that because it allows us to take more time on Thomas Takes the Bar because frankly, I've been wanting to ask more follow-up questions and go into the issues more, but we've been a little pressed for time. So I'm very excited about it.

0:03:08 Andrew: Too, um, the segment's gone over well. I think a lot of people are interested in it.

0:03:12 Thomas: Yeah, no, it's been really fun. You know what? The excitement doesn't stop because this episode features our first guest that we've ever had. That. Later on in the show, you'll hear Tom and Cecil from Cognitive Dissonance are coming on to kind of do like a listener question, but more like a guest podcaster question. And we have a bit of discussion on it. It's really cool. That said, let's get to our first segment of the day,

0:03:35 Clip: He who questions training, only trains himself at asking questions. What?

0:03:43 Thomas: I'm going to go with listener Thomas S asks. That's another segment. So, Andrew, listener Thomas S. wants to ask about this new Texas abortion burial slash cremation law that just came out. We've got a few people asking us about this. I've been very curious about it, too. There's a new rule that I believe it was passed. There's law that was passed in Texas, and I believe its pending in the Texas Supreme Court, but is that right?

0:03:47 Andrew: Yeah.

0:04:12 Andrew: And... there's an interesting procedural of this of this case that literally just came out an hour ago. So I'm excited to share that with you. So, yeah.

0:04:20 Thomas: Oh, okay. Well, Yeah, Cool. So I was thinking I would take what I've learned from you over the months that we've been doing this and see if I could kind of guess a little bit of what the answer will be on this or what your analysis might be. And you can tell me how I do based on this. This is like Thomas takes the bar, except not really. This is like Thomas tries on having a lawyerly opinion. We'll We'll see. So this law says that if you get an abortion or even a miscarriage, that you would need to make sure that fetal or embryonic material is buried or otherwise interred. If you have it, apparently, if you have a miscarriage or abortion at home, then you're exempt from the rule. But otherwise, you have to essentially have like a funeral.

0:05:10 Thomas: Not really, but you have to bury or cremate the remains if you have an abortion or a miscarriage. Now, this sounds, of course, to me, you know my bias, everybody, I'm guessing by now. This sounds insane. This is an idiotic thing. It goes in the category, I believe, of just things that people on the right are trying to do to make abortion harder. I I think even they wouldn't argue with that. There's all kinds of laws we've talked about, the pamphlets, just all the kinds of nonsense where they're trying to make it as hard as they can within the law. So what I thought was interesting about this was that when I read this, I thought back to the episodes we've done together. Most recently, Andrew, when we talked about Planned Parenthood v. Casey, I think this has a lot to say about that.

0:05:58 Thomas: Uh, and I thought, well, you know, what if the rule is the undue burden? I'm interested, I, I actually have a feeling that this will end up maybe being constitutional if it goes that far, if it goes to the Supreme Court, because I feel like they could make the case that if, if there's, if they come up with a way that the funeral, that a funeral home, or that the government's going to subsidize it, or that the hospital is going to take care of it, whatever it is, if they come, come up with a way to make it so that it doesn't sound like it's going to be a burden on the actual mother, then it won't be infringing on the constitutional right as established by Roe v. Wade and as modified by Planned Parenthood v. Casey. So that's what I'm thinking. I'm thinking it could end up being constitutional based on what I've learned from you.

0:06:43 Thomas: Now, here's where you tell me that the correct answer was A, which was my second choice.

0:06:49 Andrew: I think you've got it exactly right in the sense that what the Supreme Court is going to look at is the undue burden test from Casey that we talked about last week. And that's going to be the question, right? Is requiring a woman who has an abortion or suffers a miscarriage to undertake funereal rights, an undue burden on the exercise of that right. And I certainly share your sense of pessimism that if that case comes before a Supreme Court with a Donald Trump-appointed justice to fill that last spot, very well be the result for the reasons that you've said. The optimism to the contrary would be in July, the Supreme Court issued its opinion in the Whole Women's Health versus Hellerstedt case. This also involved, yes, the, the supreme court. Okay. It was a five to three decision in, in Hellerstedt. And that struck down two parts of Texas law that required stricter standards for abortion clinics, right? Like it required the abortion clinics to meet the standards for ambulatory surgical centers. And the other part of the law required doctors performing abortions to have admitting privileges at a hospital.

And neither of those are necessary, you know, know, to perform an abortion, which, you know, particularly a first trimester abortion, which is a, you know, routine and legal and safe medical procedure. But again, it falls into the category of, in this case, not targeting the woman seeking an abortion but targeting abortion providers and basically saying we're going to massively increase the cost and, you know, we're going to impose all these additional requirements on you.

0:07:39 Thomas: Are you talking about the Supreme Court or the Texas Supreme Court? Okay, okay.

0:08:38 Andrew: That decision was five to three. The four you would expect, Kagan, Sotomayor, Ginsburg, Breyer in the majority, also joined by swing justice Anthony Kennedy, and only Roberts, Thomas, and Alito, the hard right on the court in the minority. So again, that's not

0:08:57 Thomas: So it's all it's it sounds like it's going to come down to our swing justice. You know, it sounds Like a lot of what you've said, when you're speculating about the future of the Supreme Court, a lot rides on what he decides to do. And whether or not he's more influenced by whoever the next appointee is, what do you think about that?

0:08:58 Andrew: Sure. Yeah, I, I think that's exactly right. And, and you may recall when we were in the heady days of optimism of thinking that Hilary Clinton was going to appoint the next Supreme court justice. Um, I thought there were clear signals in this this past year that Anthony Kennedy was ready to move to the left. He's always been a reliable vote on equality issues. But I thought, for example, in our Second Amendment masterclass, for example. We talked about his dissent in a recent gun control case that be interpreted as a willingness to revisit the Heller decision. I think he was sending out those signals. What he chooses to do now is anyone's guess. Know, one of the reasons, I mean, there are lots of reasons why a justice may, know, migrate in terms of their judicial philosophy over time.

0:10:03 Andrew: It may just be the freedom of having a lifetime appointment and it may reflect actual – may reflect an evolution in the thought of the justice. Also, though, I mean, lots of people are not temperamentally suited to the Scalia-Thomas role of writing angry dissents for a decade. You know, and so that certainly could have been a signal of, hey, look, I want to be a part of where I think this court is going. The court's no longer going in that direction. Right. Right. And so I think the model for where the court is going over the next year or two, you you know, as long as Justice Ginsburg remains in of serving on the court, the past couple of years, right? And so, you know, look, the past couple of years have not, I would not describe the Supreme Court as, you Know, an institution of transformational change, but we got the Obergefell decision, right.

0:10:56 Andrew: I mean, it was exact. So this is a very long winded way of affirming what you said to start with it, which is, I think we're going to have a 4-4 court with with pretty liberal justices applying the standard rule of jurisprudence and four hardcore conservatives, because I am convinced that Donald Trump is going to appoint somebody from his list who is a Federalist Society justice that is in the mold of a Scalia, and I think they're going to get through. And then Anthony Kennedy is going be the swing vote, we're going see what happens. But it's not a great outcome, but again, And, you know, is some, well,

0:11:26 Thomas: Oh, boy. Yeah. But but does it really just how depressing is it that it just falls on those party lines? Do you ever, as legal expert Andrew Torrez, do you ever try to just sit and think, I know it's impossible probably for me too, for anybody, but do you just think, what should the law be? Forget about what I want, forget about this, because I just can't believe that it's 4-4 like that, even though you're totally right. I think you're right that it will be, but how weird is that? You know, like it just seems like either this should make sense with what we've established, you the constitutional rights are or it shouldn't like it. Just I don't know. That bugs me. It

0:12:08 Andrew: It, you know, keep in mind, we're talking about the most politically charged of Supreme Court cases, right? There are lots that are going to come up that are, that involve, you knows, sort of non-political arcane rules where, where there isn't a political interest involved. The other thing that I would point out that happens sometimes is justices may have a bias, but may be be unable to reach a conclusion as to how to best effectuate that bias.

And let me give you a real world example of that. For a long time, and these are state Supreme Court decisions, but the principle is analogous. For along time, the economist thought on whether to uphold a covenant not to compete, which is to say, you go to work for somebody, they require you to sign a document that says, if you are fired or you quit, you can't go to work for one of our competitors for a certain length of time in a certain geographical area, And for a very long time, it was thought that the best way to be a pro-business environment was just to enforce covenants not to compete, right, but it's changed in recent years because Because particularly in the tech sector, startup companies, think about how a new tech company gets founded in your state of California.

Like what happens is if it's adequately bankrolled by venture capital, that sort of thing, it's a big investment, then they go to Google and Microsoft and hire out people who are currently working in, you know, those jobs with the promise of stock options or equity in the company, that sort of thing. And so having that kind of mobility is really essential to new business startup and innovation.

0:13:54 Andrew: And so what you're seeing, and obviously, you know, we're not going to drill down into the specific cases in this segment, but what you're seeing now are cases across the country where deep red state Supreme Courts are rethinking whether they want to just reflexively uphold covenants not to compete. Repeat that their bias hasn't changed, right? They still want, uh, their state to have pro-business legal interpretation of the laws, but how they get to pro-business is no longer clear.

0:14:28 Thomas: Doesn't that doesn't make me feel any better. But OK.

0:14:33 Andrew: Um, well, you Know, I, I we get that a lot, like, you Now, we get a lot on Twitter, right? Like, boy, this doesn't help. Well, you now, I'm not not not always dispensing therapy, You know, just dispensing not legal advice, but but legal opinions.

0:14:35 Thomas: Yeah. Yeah, well, yeah, there's that's just how it is. Like, yeah. Yeah yeah. All

0:14:47 Andrew: So, yeah.

0:14:47 Thomas: Right. Well, there you have it. So is your prediction, uh, do you have a prediction for what the Texas Supreme Court might do versus what the Supreme Supreme Court might do? Or if it'll even get that far, I guess.

0:14:57 Andrew: Texas Supreme Court is going to uphold the law. That's that's clear. That's a partisan Supreme Court that has been conservative down the line. What I find really interesting is that today, an hour ago as we record this, a U.S. district court judge for the Western District of Texas has issued a temporary restraining order blocking the law, has scheduled a preliminary injunction hearing for January 3rd. And if you recall on our episode a couple of weeks ago about injunctive relief, that one of the things that in order to get injunective relief, not only do you have to establish that there's irreparable harm, which obviously this law going into effect would constitute irreparable But you have to show a likelihood of success on the merits.

0:15:42 Andrew: And so when you win an injunction, this is a district court telling the plaintiffs that in its opinion at this stage of the litigation, judge thinks they're likely to win on the undue burden argument before that court. And since they're not a lot like all of the facts that are going to be uncovered in discovery, in my view, are likely to support that finding rather than undermine it. Right. Like, you nursing. It's just started to trickling out, for example, that, um, funeral homes have no procedures for burying fetal tissue prior to, to 20 weeks, right? Like every once in a while, you know, somebody will, have uh a miscarriage and, you know, we'll, uh you know very late in the term and and we'll uh, you know, have funeral services or something like that.

0:16:31 Andrew: But nobody, you know, that has a first term miscarriage or an abortion, you know, has a funeral service for for the tissue. So bias, I guess, is showing here. But, you all of the facts that are likely to be uncovered, in my view, are likely to make that case stronger rather than weaker. I would say, number one, you've got an injunction issued, which means At least a district court judge is likely to say this is unconstitutional. Now, again, what the Fifth Circuit does, the Fifth Circuit is a pretty conservative circuit. That's not a prediction that the Fifth circuit will uphold district court judges ruling. Ruling. You know, but they will be bound by the facts as they come out at the district court level. And, you Know, you had a Supreme Court that struck down invasive abortion restrictions in Texas just a couple months ago, five to three. So So, I think there is some cause for optimism, but, but,

0:16:41 Thomas: Yeah. Yeah. Right. Yeah. Maybe, maybe I was a little too pessimistic in my analysis. I, I, yeah.

0:17:27 Andrew: I'm, it, I've given you that if you had said, I think they're going to uphold it, I would have said the things you said in your analysis. I mean, it's really good. And it's going, it's going to be a close case, and anybody who says, you know, they're not sweating it out, isn't uh, thinking about it hard enough.

0:17:33 Thomas: Yeah. Okay. Right. All right, well, there you go. I feel like I did. Okay. Can I get credit for the, for the bar? Cause I'm really needing it right now. Can I get a bonus extra credit how does that work no all Joining us right now, our first guest in this new format. There was one for one of the early episodes, but this is the first time I think Andrew and I both had a guest on. Very happy to be here. Cognitive dissonance. This is Tom and Cecil, a host of a very popular podcast called [0:18:12] 6-AUDIO: Wait, Cognive [0:18:12] 6-AUDIO: we're the Dissonance. [0:18:13] 6-AUDIO: first What? [0:18:14] 6-AUDIO: ones?

0:17:48 Andrew: Yeah.

0:18:14 Thomas: Yeah, yeah. [0:18:15] 6-AUDIO: Oh, Can [0:18:16] 6-AUDIO: we you [0:18:16] 6-AUDIO: get believe [0:18:17] 6-AUDIO: to ruin how [0:18:17] 6-AUDIO: this. Horrible [0:18:17] 6-AUDIO: We our [0:18:18] 6-AUDIO: get decision-making [0:18:18] 6-AUDIO: to ruin this for process [0:18:19] 6-AUDIO: everybody. Processes. Yeah, [0:18:19] 6-AUDIO: Yeah. Exactly. But no, this is, this is something actually kind of branching off of a little bit of what we talked about on Atheistically Speaking. We've got Tom and Cecil have really concern and and curiosity about free speech issues. And it's something we've talked a lot about on this show because it's a contentious topic, but it's very important to what we do, obviously. But before we do that, do you guys want to say a word about your show to people who don't know?

[0:18:46] 6-AUDIO: oh I mean, I could praise [0:18:46] 6-AUDIO: god no it [0:18:47] 6-AUDIO: no all. No, [0:18:48] 6-AUDIO: no they no? [0:18:48] 6-AUDIO: would So [0:18:49] 6-AUDIO: not they should [0:18:49] 6-AUDIO: want just, [0:18:49] 6-AUDIO: nobody okay.

[0:18:50] 6-AUDIO: listens to a state and serious show like this [0:18:55] 6-AUDIO: you're gonna lose listeners you know like you've you've As soon as they see what show you're on, they're gonna question our decision-making process. [0:19:02] 6-AUDIO: exactly

0:19:02 Thomas: Is that what [0:19:03] 6-AUDIO: exactly you're saying? [0:19:03] 6-AUDIO: let's Oh, okay, [0:19:04] 6-AUDIO: just say okay。 [0:19:04] 6-AUDIO: we we'll leave it in the dark. [0:19:05] 6-AUDIO: it's like when you meet your buddy's girlfriend for the first time you're like oh hey you're Yeah. [0:19:13] 6-AUDIO: 60 that's interesting seems yeah Yeah,

0:19:15 Andrew: Want to, I want us, I want to say a couple things in all seriousness that, like, the last uh two episodes of Cognitive Dissonance, uh, the one, uh, the the interview you did with Cara Santa Maria, and then the episode that just dropped, we're recording this, which is Wednesday, or I guess, I guess it dropped earlier, [0:19:31] 6-AUDIO: monday this [0:19:32] 6-AUDIO: yeah week. Yeah. [0:19:32] 6-AUDIO: yeah the pizzagate the pizzagate oh Right. That both of those and your appearance on the AS 300 Spectacular. I mean, you guys have really been, you know, discussing free speech issues lately and in a way that I think is really intelligent and interesting. And, you Know, we don't have to sort of go over the very basics. Like you guys know what the First Amendment is and we don't have to explain that that means government, you now, action and I mean they really have been great discussions. So, [0:20:04] 6-AUDIO: thank you thank you very much thank

0:20:05 Thomas: Yeah [0:20:05] 6-AUDIO: you yeah you [0:20:06] 6-AUDIO: Yeah. Guys certainly sell yourselves short oftentimes. But we're here to say it's a great show and two very intelligent hosts. That being said, let's, let'S get into it. Tom, why don't you set us up with what we wanted to talk about today.

0:20:06 Andrew: Yeah. I mean that seriously. Yeah. Yeah, absolutely.

0:20:18 Tom: So this topic has come up on a number of our conversations. And what occurs to me is that we're entering kind of a new, relatively speaking, kind of new sphere of speech. And that's speech that takes place online and through social media. And relatively speaking this hasn't existed for very long. And free speech, or speech rather, is protected when it takes place in kind of the town square, is how I've always thought about it, right? So I can, I can go out into a public space and I can say any crazy, offensive, nonsensical thing that I want, um, but what occurs to me is that media sites like Facebook and Twitter, um, are they becoming more and more the de facto town square even though they're privately owned and privately held companies? Um, are, are they becoming a kind of de facto new era town square?

0:21:08 Tom: And if they are, being that they're privately owned and privately held, how does that or would that change speech considerations? And who gets to control and moderate that speech? And I'm real curious about that.

0:21:19 Thomas: Yeah, interesting. Can I put some more into it, too? Because especially with how important Facebook news turned out to be with this election, you know, we're starting to see real effects of things like the bias or the spin or the filtering that Facebook wants to put on your news. Just an enormous amount of control to the point where, sure, right now when someone says something on Facebook and they get blocked, you can say, yeah, Facebook has a policy or Twitter has a policy. They're a corporation. They have a policy, but I think it's a really interesting topic. And I like how you put it, Tom, the idea that maybe eventually it's going to be something more like the town square, more like, uh, I think of like the phone company, you know, like the phone company couldn't decide what calls you can place where and block you based on how you're talking, you Know, like something where it needs to really be neutral. Uh, so I'm, I'm curious what Andrew would think about that.

0:22:12 Andrew: I think there are a lot of really interesting issues here. And I want to really delve into kind of the justifications behind our philosophy of free speech, right? Which those philosophical justifications date back to the 17th century, right.

0:22:26 Thomas: Twitter was just a startup back then. Yeah.

0:22:28 Andrew: Right. Tom and I were hanging out and, you know, just just getting used to the Internet back then.

0:22:37 Thomas: Andrew's old. If you don't know the joke he's making there. Yeah. Interesting.

0:22:38 Andrew: But yeah, great. Yeah. I very Rarely get someone who's close to my age on the show, so I'm enthused to have you on. Um, the short answer to the question is we would have to redefine what the right to speech means, right? But that's not that strange of a thing to want to talk about doing, right? Like, so for example, in the late 19th, early 20th century was when we started redefining, right? That's kind of the rise of what is today modern liberalism, the modern political left, was understanding that your rights can be violated by a private company just as surely as they could be violated by the government, right? Like, prior to industrialization, the only thing that our founding fathers really considered a potential source of violating your rights was the government, because that was the only entity that was strong enough to make a difference in your life, right.

0:23:32 Andrew: And as we changed, as society modernized, this was the influence of the movement, the anarchist movement, all of that, we realized that for the average person, it doesn't really make a difference if it's the government prohibiting you from doing something or if it is a Henry Ford company town that is prohibiting you from doing like what you care about is did I get to do that thing, right? And, you know, and we really reconceived of our rights and

0:24:02 Thomas: So that's kind of sounds like it could, you know, be something we need to do again eventually, because if these companies are really if you could make the argument that they're infringing on our rights, even though, yeah, they're private companies like, yeah. That that could be something to look at.

0:24:04 Andrew: Yeah. Yeah, I'm struggling to come up with a good analogy because I think that it's, you know, it's it's really kind of unprecedented at this point. But, think about some of the transformation of rights that we've talked about in previous episodes of the show, right? Like, it used to mean the right to have a lawyer was exactly that. Like, you could, if you wanted to pay to have a lawyer be present, then you could pay to have a lawyer present. And then all of a sudden, you know, in the 1950s, in the 1960s, we realized that all of these criminal defendants who were, you know, desperately poor were showing up and being railroaded through a system. And saying, you know, well, you have the right to pay a lawyer if you want, but nobody's going to give you one on your behalf was really undermining the purpose of that freedom in the first place.

0:25:06 Andrew: And so, you Know, when the Supreme Court decided Gideon v. Wainwright, it said, yeah, in order for the right the right have a lawyer to mean something, it must mean that the state will actually pay, will actually provide you with a lawyer when basic principles of liberty are on the line, right? Right.

And that's why, you know, we now have that part of the, you know, Miranda warning that, that, uh, you know, you see on TV whenever anyone gets arrested, you have the right to a state paid for attorney to represent you in criminal processes. Uh, because we think that without that, you know, it would just be meaningless, right? Like you would just have, you know, hundreds of thousands of people kind of run through the system and railroaded.

Um, and that was a real, you Like, there's no question that, you Hamilton never, ever thought that the right to an attorney meant the right to have the government pay for your lawyer to be present. You Know, but we do now. That's changed. So, you could the concept of free speech, which right now means, you the right to be let alone by the government when you want to say something in a public place, right? Could that change? I could I see really good. I think this is a discussion worth having.

[0:26:18] 6-AUDIO: Based on what you said there, if private companies can infringe on our rights, then it strikes me this is more a matter of time, more a manner of when than if, because so much speech takes place online, particularly in these forums now that are, you know, widely accepted, Facebook and Twitter being the two big examples that occur to me offhand. And then so then I wonder, as a private company, are what are my options, you know what I mean?

Like, do I, how much latitude do I have as a company to decide what kinds of speech come on my platform? Is it, is it going to default to the the seven things that you can't say on television or whatever, what are those, yeah, I mean, like those, whatever, there's like race, creed, whatever, with the FCC then become, or some similar organization then become involved in regulating, you know, what kinds of speech are allowed, or, you know what I mean, like

0:27:06 Andrew: Yeah. [0:27:06] 6-AUDIO: broadcast so to speak like I'm real curious andrew to hear you speculate wildly about this yeah Yeah, [0:27:13] 6-AUDIO: well well, I think I mean, those words are kind of the key, operative words in that sentence, because, you know, no one knows. But but the I mean the right analogy in my mind is the analogy to the status of newspapers, you Know, in the late 18th century, right? Right. Like so the founding fathers were familiar with the idea that like private people owned companies that produced newspapers. And because of the time in which they lived, that was really, really important as a means of getting information out to people. And so, you know, we wrote a special we wasn't around in

0:27:13 Thomas: You

0:27:50 Andrew: The 1870s. But the founding

0:27:50 Thomas: Just tipped your, you just tipped your hand. I knew it. I knew you were a super old, weird alien guy that, yeah. Anyway,

0:27:57 Andrew: Fathers wrote into the First Amendment a specific protection for a kind of private enterprise. And we don't really think about that today because we think of, you know, the press and the fourth estate and freedom of the press. But, like, that's not a feature of other 18th century and earlier constitutions, right? Right. Like that's a unique aspect of our country that comes from the fact that our founding fathers, you whipped up support for the revolution through writing pamphlets and stuff. So, you Know, they kind of recognize the power that newspapers had as an institution, and they wrote in specific protection for that into the Constitution in the way that made sense to them back then. So, uh-huh.

0:28:36 Thomas: Man, you know what that makes me think of? That makes me thinking, what is it? China where they're blocking everything that like the social media, if there's dissidents, they kind of block what they're doing. It really makes me Think of that. Like it's very analogous to that situation [0:28:48] 6-AUDIO: I guess I have a little bit of a question that may sound a little bit like pushback here, here's, here's what strikes me as a little different about a newspaper, though.

0:28:44 Andrew: Right.

0:28:54 Andrew: Mm-hmm. [0:28:55] 6-AUDIO: a newspaper is content created by the company company provided to you, the people, Twitter or Facebook is content created by people, by the people using it, So right? It's, it's the, the model is so much different. It's also, it's also interesting that, newspaper is a big category, right. And then the, the Washington post or whatever is, is just one of them. And there's many, and they all compete, but Twitter is the only thing that's like Twitter Facebook's the only things that's It's like Facebook and would they, would they all have, would they all be treated in generally the same way as social media conglomerates? Would that be the right way to do that? Or would it be to say, Hey, Twitter is its own medium and it's a different medium than Facebook and it needs to be treated differently than Facebook. And have different rules around, you what, around Twitter's ability to regulate speech on its own platform.

0:29:45 Andrew: Right? [0:29:45] 6-AUDIO: Like it's different. Right. [0:29:45] 6-AUDIO: It's different, it's fundamentally different than newspapers, I think.

0:29:48 Andrew: Well, I mean, let me agree with you and disagree with you in part. I mean. [0:29:52] 6-AUDIO: focus more on the agreement So where I disagree.

0:29:55 Thomas: Cutting the agreement. I'm, I'm cutting out the agreement, just to, just make, mop the floor with them. [0:30:01] 6-AUDIO: Okay.

0:29:57 Andrew: Right. So where where where do I agree? Yes. [0:30:05] 6-AUDIO: we User content. [0:30:05] 6-AUDIO: can stop there we'll

0:30:05 Thomas: Yes those yes [0:30:06] 6-AUDIO: just stop it yes I'm you

0:30:08 Andrew: User [0:30:08] 6-AUDIO: good five content [0:30:08] 6-AUDIO: and that [0:30:09] 6-AUDIO: yes high is. [0:30:09] 6-AUDIO: five Yeah. [0:30:10] 6-AUDIO: where's the mic I'm dropping it high

0:30:12 Thomas: Yes tom that was a question that you asked now that's the end of [0:30:16] 6-AUDIO: five the agreement, well,

0:30:17 Andrew: But user content that is that is, you know, disseminated peer to peer. Obviously, that's different than the, you know, mass communication one person generates and it's, you put out into the into ether to tens of thousands or more people. But at the time, put right, yourself in the late 18th century, there were not a lot of options for private individuals to communicate, with other people that were not, you know, sort of their friends and neighbors and family. So, you know, newspapers were indeed, I mean, there were a ton more private newspapers. And again, like, you know, the Federalist Papers were basically, celebrity Facebook of their day, right? Like revolutionaries. The founding fathers wanted to discriminate to the victorious revolutionaries who were thinking about how to form a new government, like their and philosophies on, you you know, what the structure of government would be like. And they used, you newspapers and pamphlets to do that. So I mean it's not that different.

0:31:14 Thomas: That's why I thought of that analogy. Imagine yeah. Yeah, and imagine in a country, I don't have to use a specific example, but say some Middle Eastern country or some somewhere where there's a very oppressive government. And you have people who are trying to express themselves on social media and they're not able to. Sometimes they are, sometimes they aren't. I could imagine they have a revolution. Imagine that happens and they get to write the documents, their constitution, whatever they want to do. I can imagine it being very analogous where they're like, look, the only way we could make this happen, the way the people can gather and share their beliefs and be heard and all that is this social media, therefore, uh, you know, we need to write this into our constitution that it's, it's, you can't ban it, you can't prevent speech, it's got to be free and open. And, like, I could kind of see that as an analogy.

0:32:01 Andrew: I mean, to me the question is, if you're going to talk about redefining what the right to free speech means, that we would want to figure out philosophically what our concerns are, right? And so I think of a number of things, right, like, so, historical philosophical justification for not having the government interfere with free speech is this idea that the best solution to problematic or wrong speech is more speech, right? This comes directly from John Locke and, you know, and it was an answer to the question at the time of why, why should we let people say stuff that is false, right? And the idea, I mean, prior to the U.S. Constitution, most governments, was sort of a prevailing notion of, well, obviously, if people are saying things that are untrue, and the primary notion of what was untrue was, you know, things that were blasphemous, right, like denying the obvious fact that God exists, right. Obviously, we should prohibit that because, you know, what value is it towards letting people just put out blasphemy? And, right, Locke said, no, you know what?

Like, there is, there is an even greater protection of allowing people to speak, even to speak blasphemously, even to say things that are false because, you know, you have a greater understanding of the truth, you know, produced by its collision with error. Uh, the solution to, you know, wrong speech is more speech. I mean, all of that, you know, we've heard those kinds of philosophical justifications and it seems like that's where the battle would be fought, right? Like, and, and, and what I heard, uh, Tom and Cecil, you guys saying on your show was

0:33:44 Andrew: Um, we've moved into an area where the social norms of some, some kinds of communication, right? Like YouTube comments, those sorts of things, are not, right, like that, that type of speech is not fulfilling that kind of ideal, right? Like having people who just sort of like scream horrible things and racist insults when you start talking is not the kind of clash of ideas that, you know, Locke envisioned, you know, yeah,

0:34:11 Thomas: You're saying [0:34:12] 6-AUDIO: yeah. The founding fathers [0:34:12] 6-AUDIO: wait didn't [0:34:13] 6-AUDIO: a minute wait do that [0:34:14] 6-AUDIO: A bit, hold on, hold on a second, hold on. Are you saying that the the YouTube comment section, uh, of any given page is not the clash of ideas that was envisioned by John yeah [0:34:24] 6-AUDIO: locks

0:34:24 Andrew: I, [0:34:25] 6-AUDIO: I'm I understand. Understand I'm going out on a on a very [0:34:30] 6-AUDIO: a t-shirt very big [0:34:30] 6-AUDIO: uh limb [0:34:31] 6-AUDIO: this here

0:34:29 Thomas: This [0:34:29] 6-AUDIO: getting is why people listen to this show they They get insight [0:34:33] 6-AUDIO: is that [0:34:33] 6-AUDIO: yeah they [0:34:34] 6-AUDIO: this could not have possibly thought [0:34:35] 6-AUDIO: is about [0:34:35] 6-AUDIO: one themselves. [0:34:35] 6-AUDIO: this is this one piece of advice you should take for a podcast

0:34:39 Andrew: Yeah yeah do [0:34:40] 6-AUDIO: exactly not read the comment section um [0:34:43] 6-AUDIO: exactly no [0:34:44] 6-AUDIO: or But I mean, like, so you have to, you know, you have to answer the question. If, if the reason that we have this notion of, you the right way to respond to speech that you don't like is with more speech, and and I think [0:34:59] 6-AUDIO: on YouTube yeah [0:35:00] 6-AUDIO: just to scream personal insults right Right. No, no, seriously. And so that, you know, so the question is, like, does that have any value? Right. Like, is it consistent with the philosophical underpinnings of free speech to say, no. No, we want like some dude whose avatar is a chair to just like scream racist epithets at you. You know, I don't know. Right. But that's a discussion that's worth having. Right.

[0:35:25] 6-AUDIO: So let me ask this question. Let me flip it to kind of a different angle. So let's say I'm a private company, right? If I'm in a private newspaper and you write this hate-filled, nonsensical screed and you send it to me, I have no obligation to publish it. I can I can say a great, horrifying screed of angry, racist nonsense. I'm not going to publish it. I'm a newspaper. I have an editorial board. I get to control the newspaper, still gets to control what speech goes in their newspaper. They have they have almost complete unilateral control over

0:35:58 Andrew: Right. [0:35:58] 6-AUDIO: what speech goes in the newspaper. So if we were to decide that the analogy is newspaper to something like Twitter, then there's effectively no change. Right. Right. Because Twitter right now can decide what speech by banning users. They can say, Cecil, you really need to stop. Just, I mean, buddy, please. Nobody thought you could be that vulgar in 140

0:36:19 Thomas: Can [0:36:20] 6-AUDIO: characters. They [0:36:20] 6-AUDIO: You're do [0:36:20] 6-AUDIO: setting that [0:36:21] 6-AUDIO: a already? [0:36:21] 6-AUDIO: new precedent. Can they figure that out already? [0:36:22] 6-AUDIO: Will you stop threatening to rape people? [0:36:27] 6-AUDIO: You know, but

0:36:28 Andrew: But yeah. [0:36:29] 6-AUDIO: which is, by the way, a way in which people harass people on Twitter all Yeah. [0:36:34] 6-AUDIO: the time. Yeah, [0:36:35] 6-AUDIO: like that is yeah. [0:36:35] 6-AUDIO: not that's not like like I say it as a joke, but that's a that's a thing that people do. So we're talking about we're not just talking about like, "Hey, I think your argument is stupid." It's, "Hey, I want to rape you until you die," right?

0:36:34 Thomas: Yeah.

0:36:46 Andrew: I mean, under our current legal framework, even if those kinds of comments were in a the context of government censorship, right, that is, even if we were subjecting them to the First Amendment, the First Amendment's test for whether something constitutes impermissible hate speech, right, is that it must have a substantial likelihood of leading to imminent lawless action, right. Right. So saying, you know, the kinds of horrible, hateful things that, you know, that you've just described, if it's not likely to lead to imminent lawless action, is still protected. Right. We've all kind of had that discussion back and forth about whether, you know, that model makes sense, or whether a more European model that, is less calibrated to immediacy makes sense.

0:37:33 Andrew: Uh, but yeah, so in other words, you can say, you know, you deserve to be raped for, you know, your opinions about video games or whatever, and like that would pass muster even in, you know, the public square context, right. The the other thing I was going to say is that the the the reason behind the notion that the newspaper gets to make the a call, right, in terms of editorially what they're going to publish and what they won't, is because there were very, very low barriers to entry back then to sort of start up a printing press, right. Like a printing press was a couple hundred bucks, and like sure, you had to be landed and everything, but like the idea was, if you were, you know, if if your newspaper was only publishing you pro wig commentary, then, know, you you and your fellow Democrat Republicans would purchase a printing press and start, you know, putting out all of the.

0:38:25 Thomas: That's what's interesting yeah because you can't make your own twitter like you can just say well I'll [0:38:29] 6-AUDIO: right go get [0:38:29] 6-AUDIO: yeah my own twitter then fine yeah

0:38:26 Andrew: Yeah. Right. Yeah. And I [0:38:31] 6-AUDIO: yeah think there's I think they're still that kind of view about about the Internet, at least among legislators of like, you know, what are you talking about? Out like anybody can get on the internet and and do anything and put up a website and like that's true but but you know I mean Thomas you're you know you cut to the punchline right like you can't anybody can't start their own Twitter like that say that's a billion [0:38:51] 6-AUDIO: well dollar barrier to entry [0:38:52] 6-AUDIO: so let me asked this but if let's if say Twitter gets sold tomorrow and it gets sold to martyr tomorrow to uh Breitbart you know they yeah [0:39:00] 6-AUDIO: just buy it I [0:39:01] 6-AUDIO: they just by twitter they just they won every lottery simultaneously

0:38:41 Thomas: But yeah and Yeah. [0:39:04] 6-AUDIO: and they buy

0:39:04 Andrew: Think [0:39:04] 6-AUDIO: twitter right just I think they've already won every lottery simultaneously Simultaneously.

0:39:09 Thomas: Oh, nice. And [0:39:13] 6-AUDIO: just we've lost every [0:39:14] 6-AUDIO: turns lottery. [0:39:14] 6-AUDIO: it just turns Yeah, [0:39:15] 6-AUDIO: out that you know if you hire enough russians to to but

0:39:12 Andrew: Yeah. Oh, yeah. [0:39:18] 6-AUDIO: win the lottery for you right lottery welcome

0:39:23 Thomas: I like this question. [0:39:23] 6-AUDIO: comrade Go ahead. So [0:39:24] 6-AUDIO: all they buy [0:39:25] 6-AUDIO: right so it. [0:39:25] 6-AUDIO: So bright bar buys Twitter tomorrow, right? They just, thanks, it's awesome, now I own Twitter. And they go on and they just ban, ban everybody that's not alt-right. They ban everybody that is not alt right. They just kick them all out. And that's that.

0:39:38 Thomas: There's [0:39:38] 6-AUDIO: It's nothing we [0:39:39] 6-AUDIO: the private can [0:39:39] 6-AUDIO: company. Do about it. Yeah [0:39:40] 6-AUDIO: Right. Hmm, [0:39:40] 6-AUDIO: Right. But then if we're talking about whether or not something like Twitter constitutes a unique space that's similar to a public square, even similar to newspaper. Could we have antitrust issues? Would right. That be another way to consider how, how the uniqueness of this space gets managed?

0:40:00 Andrew: Yeah, so there are two great questions there. So let me start with the first one. Remember that when you're making the analogy to the public square, the reason that the public square is subject to the First Amendment is because the government owns it, right? So that's a gate that swings both ways, right, like if you're talking about do we declare something effectively a public square, that means that it is effectively owned by the government, right and so you might have – would the government step in and buy Twitter at that point because they think of it as a public asset. I mean, I don't know. But but that.

0:40:39 Thomas: But let's okay. Let's well maybe maybe maybe we don't go with public Square. What if we go with The thing like where you have have to do equal time on the major Channels For elections like What if it's More like that

0:40:43 Andrew: Right. Well, and and yeah. And let me answer that in context with the antitrust question, which which I thought was really good, too. And that is one of the things that is a real trend of the past 30 years, and it's true even through the Democratic presidencies of Bill Clinton and Barack Obama, is that we've really moved away from robust enforcement of antitrust laws. Right. Like it used to be you learn in American history class about like the, you know, trust busting of the late 19th and early 20th centuries and, you know, breaking up monopolies and the now are presidential at the presidential level. Our political parties have been Republicans who think that we ought not to have antitrust laws, period, and Democrats who think perfectly reasonable to have multi-billion dollar huge conglomerate mergers, so long as you facilitate enough other huge con glomerate Mergers to serve as a counterweight.

0:40:53 Thomas: Okay.

0:41:48 Thomas: Therefore Comcast

0:41:50 Andrew: Right. So yeah, no, it's true. And like that, all of the Comcast acquisitions happened under a democratic president, right? Like that's Not, you can't lay that at the feet of George W. Bush, right. Like, like that's a Barack Obama fault. You go back – I have mentioned, you the first legal work I did was the ExxonMobil merger and that was approved under Bill Clinton. And the idea there was it's OK for the biggest oil company in the country to acquire the third biggest oil country in the company so long as the second biggest oil in the country acquired the sixth biggest oil

0:41:51 Thomas: Now owns Every single thing that there is Yeah. Yeah. Oh, Man.

0:42:25 Andrew: And there Was sufficient large competition. So how does that relate to Twitter, right? Right. If you apply our current antitrust laws, I think what they would say is, well, you know, it's OK for Breitbart to buy Twitter so long as, you know, there is a Bill Gates or somebody else out there who's ready to start a competing service, you know.

0:42:45 Thomas: I Was gonna say what or they're So Out of touch, they're like, well, look, Myspace is still around, just use That [0:42:49] 6-AUDIO: Yeah, like just [0:42:50] 6-AUDIO: that's go ahead [0:42:50] 6-AUDIO: that's and [0:42:51] 6-AUDIO: really yeah [0:42:51] 6-AUDIO: the concern I would have.

0:42:49 Andrew: Yeah. Yeah. Yeah. [0:42:52] 6-AUDIO: Right. Is that these are guys that can't I mean, they're like still baffled by the toaster.

0:42:56 Thomas: Yeah [0:42:56] 6-AUDIO: You know, I mean from a technology standpoint,

0:42:58 Andrew: It [0:42:59] 6-AUDIO: you the legislature is not known for being on the ball with these things. And [0:43:03] 6-AUDIO: so and [0:43:03] 6-AUDIO: how many lawyers [0:43:04] 6-AUDIO: years or that [0:43:05] 6-AUDIO: decades are we behind in legislating you know against this or not against but through this technology too unbelievably so. [0:43:12] 6-AUDIO: do Right. Like, I mean, what I was going to point out is it is a robust debate among lawyers right now, and I'm not making this up, whether to, whether and to what extent, to allow cameras, analog cameras, into the Supreme Court, right? So we're talking about, they're only what, 170 years behind the times, right? [0:43:32] 6-AUDIO: they do yeah [0:43:32] 6-AUDIO: they only allow pinhole cameras now oh my god they [0:43:35] 6-AUDIO: like they only allow [0:43:37] 6-AUDIO: you I [0:43:37] 6-AUDIO: can only mean yeah [0:43:37] 6-AUDIO: have a camera

0:43:32 Thomas: Yeah they're [0:43:38] 6-AUDIO: Obscura is what you got.

0:43:40 Andrew: You [0:43:40] 6-AUDIO: the you you cannot they will confiscate they will confiscate your camera obscura I mean like if you've if If you've ever noticed a Supreme Court, right, like the reason you don't see it,

0:43:44 Thomas: They're Like We can't Allow this To happen There's Gonna be the big old fire, like, explosion [0:43:52] 6-AUDIO: Guys flash happening we just can't have that in today's court [0:43:57] 6-AUDIO: that guy's yeah [0:43:57] 6-AUDIO: under that cloth you know like Yeah. [0:43:59] 6-AUDIO: that drape yeah Yeah. [0:44:01] 6-AUDIO: smile well

0:43:55 Andrew: It will steal the souls. But you never [0:44:02] 6-AUDIO: the last time ginsburg got her picture taken was the civil war so that does make sense so see [0:44:08] 6-AUDIO: what pictures from the bench of the Supreme Court. Like there are no cameras [0:44:14] 6-AUDIO: a weird allowed [0:44:14] 6-AUDIO: that's in the galley while the Supreme Courts is hearing oral argument. And like, yeah, [0:44:18] 6-AUDIO: why you have the that's [0:44:19] 6-AUDIO: drawings right and they make exactly [0:44:20] 6-AUDIO: the flip right. [0:44:20] 6-AUDIO: books and Yeah, [0:44:21] 6-AUDIO: yeah wow yeah. Yeah. And so, you know, if lawyers are wrestling with a still photography technology, right, like, [0:44:30] 6-AUDIO: wow yeah, I don't want [0:44:31] 6-AUDIO: oh those people deciding that they know the difference between Twitter and MySpace, right?

0:44:36 Andrew: Like, we're [0:44:37] 6-AUDIO: my god not good at that. I may be the most internet savvy lawyer on the planet right now, which I, right.

0:44:36 Thomas: Oh, my God. We're all going to die.

0:44:43 Andrew: Yeah, we are all going to die.

0:44:45 Thomas: We're all screwed. Just teasing you. So if do you think, Andrew, then given all these concerns that I think they're really interesting questions that Thomas Cecil brought up and to add one further quick wrinkle, there's also this idea where your Facebook login is now your everything login, you know, like it logs you into every different site on the internet now. And what if Facebook decides they don't, they want to just delete your account, you know? If that you don't believe the right thing, given all these concerns, like what do you think as lawyer, Andrew Torrez, who I know is very passionate about free speech and likes how it is currently a lot. What do you think about changing how we define it? Or do you think there are other ways to deal with it?

0:45:27 Andrew: There's a lot in that question, right? Like, to me, when I say that I consider myself a free speech absolutist or near absolutist, what um I mean is that I I think an aspect of a free country is that in whatever forum you want to use to communicate with someone else, that you feel as unfettered as is conceivable within sort of the boundaries of that forum to express your opinion and to not worry that that's going to have real tangible consequences in your life. Right. So, for example, you know, we didn't get to talk about in this sort of brief session because it would probably be a three hour detour. Things like, you know, doxing people or, you Now, reporting, know, bad behavior over Twitter that gets somebody fired.

0:46:18 Andrew: Right? Like, I mean, think of all of the kinds of things that, you know, we've seen that has just been sort of private to private communications, right? Taking an email forward from someone and all of a sudden that private joke that you sent to your buddy at work has now gone viral 10 million times and people get fired over that. Right. Like all of those things, in my view, are real world consequences that are just as serious as a fine or a prohibition. Mean, right, if you told me, you know, I'm going to get, you know, well, I can't get fired because I don't have a boss. But I mean if you tell me that, you know, I was going to suffer that similar kind of consequence, right? Like that, it doesn't matter to me whether that's imposed by law or whether that is imposed by, you know, the operation of society, right.

0:47:12 Andrew: Like that's a real, that's our real consequence. And I mean, I don't know that I have an answer, but I think that it's worth sort of continuing to have this discussion and to look at it, you know, outside of the framework of the only thing that has a consequence to you is when the government does X.

0:47:28 Thomas: What do Any final thoughts on the issue, you guys? What do you think? [0:47:30] 6-AUDIO: no I feel way more confused yeah me

0:47:32 Andrew: That's [0:47:32] 6-AUDIO: Too, I'm so much that's [0:47:33] 6-AUDIO: more confused can the goal of [0:47:35] 6-AUDIO: we this [0:47:35] 6-AUDIO: stay show [0:47:35] 6-AUDIO: in can we we stick around for the other hour and a half you're supposed to explain this in? Oh [0:47:41] 6-AUDIO: I would like, if you could just write it all down and then make it into a pop-up book and then transcribe for me the pop-op book. And then give it to his kids so he can explain it to them. All right, I can see Finn sits next to me. Dad, dad, all right, here, look, you're not adhering to the principles of John Locke when you're saying on YouTube, all right. I'm sorry, son. You see, dad? When Milo loves white men very much.

0:48:06 Andrew: God, well, I mean, let me, let me try it, let me try it this way. Um, suppose, right, suppose, suppose there was no distinction of, you know, public, private, you get to write, you know, the First Amendment or the operative speech laws, you know, however you want, what would you do? I mean, you have omniscient power, uh, know, over the legislature and the courts, like how would you rewrite that? What would you do?

0:48:29 Thomas: You see the kinds of things I have to try to answer on this show? [0:48:32] 6-AUDIO: that's a great question. It is. And I don'T want to spitball that. I can't believe Well, [0:48:37] 6-AUDIO: I just now [0:48:38] 6-AUDIO: said you [0:48:38] 6-AUDIO: that. Guys have [0:48:38] 6-AUDIO: How homework. So get back to us. [0:48:41] 6-AUDIO: would I do that? Wow.

0:48:42 Thomas: Tom, have your kid write a report for us and we'll read it on the show. No,

0:48:45 Tom: Yeah, I'll do that.

0:48:48 Andrew: To me, one of the things that you guys have really highlighted in the past couple episodes of Cogdiss, which again, I plugged at the beginning of this and I'm going to plug now, they're really, really great episodes, is the to which social norms play into this, right? Right? Like, and so I wonder how much of what we're trying to do is a change in social behavior as opposed to a change in legal behavior, or alongside with the change in legal behaviour, because obviously, like when you change the laws, you also change how people behave. But I don't know that we can solve that, you

0:49:24 Thomas: Well, it sounds like there's [0:49:24] 6-AUDIO: yeah no easy answer and that's, you know, that's okay. It doesn't, it [0:49:28] 6-AUDIO: well doesn't have to be [0:49:28] 6-AUDIO: well an easy [0:49:28] 6-AUDIO: let's answer. [0:49:29] 6-AUDIO: let's shift the conversation to gender pronouns in canada then That's [0:49:33] 6-AUDIO: thanks an easy Answer. Yeah. [0:49:40] 6-AUDIO: for having us thomas I Are you out? You're just, yeah? You're out after [0:49:44] 6-AUDIO: just that. Yeah. [0:49:45] 6-AUDIO: like I'll just light that match Yeah. [0:49:46] 6-AUDIO: and then walk out the door

0:49:47 Andrew: Yeah, [0:49:47] 6-AUDIO: this that's how Cecil [0:49:48] 6-AUDIO: is his throws [0:49:48] 6-AUDIO: uh exactly up the horns and walks out, [0:49:50] 6-AUDIO: right right? [0:49:50] 6-AUDIO: it's awesome we

0:49:49 Thomas: Yeah. Uh, that'S awesome. Yeah. Okay. Well, no easy Answer, uh, but lots of interesting issues raised thank you guys so much for coming on, for being our first and last guest. Yes. No. [0:50:00] 6-AUDIO: just want to say I love this show it is Uh, [0:50:04] 6-AUDIO: a great show, what a, what a great mix between you two. We, we both, Tom and I, listen to it, we like it a lot, and it's really, it really is very informative, and I, and I identify with Thomas all the time with all the great questions that he asks. You guys are a great couple, and and it's a great show, so thanks for having us on. And I think I'll echo that and say it's an important show right now, this is an important, yeah, absolutely, and I'm glad that it's out there. I'm glad that these voices are out there because this needs to be happening. Yeah, not, not my goofy questions, Uh, [0:50:30] 6-AUDIO: but your show needs to Beha yeah no thank you guys so much.

0:50:34 Andrew: No, sincerely, that means a lot. You know Thomas as though he got his start on your show, and I have been a fan of Cogdiss since before we started opening arguments. So I love what you guys do, and hearing you say those things really means a lot to me. So thank you very much.

0:50:50 Thomas: Thankyouguys. The show of course is Cognitive Dissonance. Find Tom and Cecil over there. Thank you guys for being our first guests. Really appreciate it. [0:50:57] 6-AUDIO: Thanks for having us. It was a lot of fun. This was great.

0:50:59 Clip: Thank you, Dr. Hibbert. I rest my case. You rest your case? What? Oh, no. I thought that was just a figure of speech. Case closed.

0:51:09 Thomas: All right. Time for closed arguments. Andrew, we all know about the McDonald's hot coffee lawsuit. I remember it from, you know, my childhood. I was very, very young at the time. I barely remember, actually. Let me just rub it in a few more times. Man, let me think. My mom was explaining it. No, I'm just kidding. OK, but I do remember it. And it was kind of, it was, was a punchline. It was a, you know, this, some, you know, some crazy woman got millions of dollars because coffee was, was hot, you know, and it was a very easy punchline that, that, uh, that people would say. And it was on all the late shows and I was making fun of it and all that stuff. But Uh, but it's kind of been recently coming out in in different uh sources, and I know I saw one really well done video about how this case might not have actually been the punch line that people were making it out to be. So, Andrew, what happened? Break it down. This is a closed argument.

0:51:24 Andrew: Uh-huh. Uh-uh. Yeah.

0:51:46 Andrew: Yeah.

0:52:02 Andrew: That's correct, right? This suit has been unfairly maligned as uh an example of plaintiff litigation, you know, gone mad, um, for an awful lot of reasons, and um, and let me just try and summarize them really, really quickly. Right, so, uh, the first is, the plaintiff was a 79-year-old woman who suffered third-degree burns across her entire lower body. So when you look at that, this is not like, you idiots of Walmart, like, oh, I spilled coffee on myself. I mean, they really are serious injuries. If you Google McDonald coffee plaintiff injuries, don't don't take Google image advice from a podcast either. But but if you don't believe me, look at those. And if they don't make you sick, then, you know. You have no capacity for human empathy. Number two is sort of the facts of the case. So when you go into a Starbucks or a local coffee shop and you ask for a cup of coffee, they are going to serve that to you piping hot. And piping hot is 175 Fahrenheit, which I believe is like 79 nine Celsius, right?

0:52:44 Thomas: Especially from Andrew.

0:53:12 Thomas: That's the official piping level that

0:53:14 Andrew: Yeah, it is. But that's, that's the temperature you're going to get your coffee from, from Starbucks. And if, if you recall, like when you get your coffee from Starbucks, like it's really, really hot.

0:53:14 Thomas: They, yeah.

0:53:23 Andrew: Um, McDonald's, this uh, is a callback to the, the segment we did, last week, where uh we talked about the, uh the Ford Pinto case, uh McDonald's conducted an internal survey and they said, you know, we realized that 70% I'm making up this number here, but, uh, we realize that say 70% of our customers order the coffee at the drive through window. They kind of put it in their console and they drive down the road and they start drinking it five minutes later. And if we serve it at 175, it drops down to 150 by the time they drink it. Uh, and it feels kind of, it tastes kind of lukewarm and our copy, our coffee is kind kind of crappy. And so people don't like it. So if we hold the coffee at 190, then by the time they get five minutes down the road, the coffee is now dropped to 170, 175.

0:53:22 Thomas: Yeah,

0:54:12 Andrew: It's piping hot. People like it, they're super happy. And the internal studies showed, number one, that a substantial percentage, I'm saying here 30, but don't hold me to the 30, But that a substantial percentage of their customers did drink the coffee right away. And number two, that 190 is way outside the norm and safe harbor guidelines for the temperature at which you should store coffee. That's, I believe it's 90 Celsius for our international listeners. It is very, very close to the boiling point of water and coffee.

0:54:49 Thomas: That's hot.

0:54:50 Andrew: You know, so yeah, so you think about the hottest coffee you've ever had, there was an internal McDonald's directive that said, we want you to keep the coffee even hotter than that, because we don't want customers complaining about it getting cold and tasting crappy. Be. Um, when you put that together, right, that's a pretty clear case of negligence, right? Like negligence is when you owe a duty to somebody in this case, if you're selling them a product to not deliver it in an unreasonably dangerous condition, you know what the standard of care is here, here it is, uh, to deliver the coffee, no hotter than one 75. And they had an an internal policy that violated it. Right. So that seems pretty cut and dried. OK. They were negligent. So now then the only question becomes the damages.

0:55:35 Andrew: Right, and that's where everybody sort of feels like it's, it's you egregious. The plaintiff's medical bills in this case were almost two hundred thousand dollars. OK, yeah, because, again, third degree burns over the lower half of her body and she's 79? So and substantial medical injuries. And then the question becomes about punitive damages. And I want to sort of do a callback to OA 16, where we talked about Donald Trump's habits of not paying his contractors, Right. And if you remember, like the lesson that sort of outraged you at the end of that segment was, well, if I promise to pay you one hundred thousand dollars and then I don't pay you and you take me to court, then at the the end of the day, the most you're going to get is either your reliance expectation damages, right?

0:56:12 Thomas: Yeah. Yeah. You couldn't sue for more than

0:56:28 Andrew: Yeah.

0:56:28 Thomas: The $100,000, right?

0:56:30 Andrew: Unless, you know, unless you could prove, you Know, either that you had expended more money because of reliance, or unless you can prove fraud, which is really, really difficult to prove, which we talked about. So, you sort of walked away from that being like, well, if you're totally unscrupulous, right, there's no disincentive to stop you from just screwing everybody in a a contract every single time you do business and forcing them to take you to court because the worst case scenario is you have to pay what you agreed to in the first place. So right, do the flip side of that. You're right, saying from a social perspective, we think McDonald's, not we think, we know McDonald's conducted internal surveys and said, "How hot should we serve the coffee?" Oh, we should serve it unreasonably dangerously hot in order to appeal to the majority of our customers, even though it's going to be a problem with, you know, a minority of our customers. And if you want to say, a society, gosh, like, how do we make McDonald's not do that, right?

0:56:38 Thomas: Yeah.

0:57:30 Andrew: The only thing you can do is impose punitive damages, if all they they have to do is cover the actual injuries, then we're right back in the Ford Pinto situation, right? Then their internal actuaries can say, "Well, you know what? Let's serve the coffee at 190 and Burn the crap out of people, and we'll pay off the actual medical injuries in the rare cases where cars blow up or people get burned from the waist down" or whatever. If you don't want that kind of a society. If you want to be able to say, "No, no. Where it's egregious, where you know you're causing harm to someone, we want to impose punitive damages on you," then you have to have that kind of instruction. No, the jury awarded the punitive damages, and to the best of my knowledge, the plaintiff's lawyer said, in order to deter inter-McDonald's, he suggested should award punitive damages of one or two days worth of coffee sales to McDonald's across the country, which

0:57:40 Thomas: Yep. Yeah! It's more profitable.

0:57:56 Thomas: Yeah or our coffee blows up. Yeah and Right.

0:58:32 Andrew: Was then put into evidence as $1.35 million. And then the jury awarded $2.7 million in punitive damage. So on the one hand, you might look at that and say, well, gosh, this woman got a $2.7 million windfall. But on the other hand, And that two point seven million dollars literally reflected two days worth of McDonald's coffee revenues. Right. That's it. And and that's what we're complaining about. Like, oh, this poor, you know, billionaire corporation for having to shell out two days' worth of coffee sales. I should I should also add immediately the judge reduced the punitive damages down to just under five hundred thousand dollars. Right.

0:58:40 Thomas: Oh, Yeah. Yeah, oh,

0:59:14 Andrew: So, yeah. So and then the case was appealed and the party settled out of court.

0:59:14 Thomas: Wow. Oh. So we don't know how much she got.

0:59:21 Andrew: Yeah. So the idea that there were, you know, millions of dollars in punitive damages handed out, to this, grifter who spilled coffee on us is just that's 100 percent wrong. Idea that the case represents, you know, frivolous plaintiff's litigation is, in my view, 100% wrong. There are important social objectives, you know, to be gained by awarding punitive damages. That doesn't mean that there aren't examples of, you plaintiff litigation gone awry. And we've talked about some of of those in the past. Uh,

0:59:22 Thomas: Okay. Yeah but

0:59:53 Andrew: But when you see, yeah, yeah.

0:59:53 Thomas: In this case, yeah, I mean I feel like she was a bit abused by the the misconceptions. She was that I felt bad once I once I watched that video that I watched. I I I'm I hope we can and do a small part to have more people sort of know what, what the, the reality of the situation was in that case, because yeah, that's, that'S pretty messed up. She had horrible damage. She barely, it sounds like she didn't end up getting all that much more than her medical bills necessarily. But, uh, but yeah, no, it makes sense.

1:00:18 Andrew: Yeah. So for example, one of the ways in which we could cut down on the windfall factor, uh is, uh, to pass a, an excess tax on punitive damage awards. Right. And so if you taxed punitive damage awards at, say, 80%, then, you know, you wouldn't have the problem of people saying like, oh, look, this woman just, you know, spun the wheel and won the lottery, right?

You would still have the ability to impose a large fine on a recklessly negligent or, you know, intentionally harmful act by a major corporation so as to deter future conduct, and it would maybe cut down on the windfall factor. I don't know if that's the right way, if that'S the right mechanism.

But what I do know is almost every proposal that is so-called tort reform that is being pushed would, in my view, drastically swing the balance in favor of kind of the Donald Trump situation and in favor You know, Ford Pinto type calculation, right, where when you restrict punitive damages, just so I mean, this would be my, you know, sort of think about this politically, when you are restricting punitive damage is when you're putting in caps, what you are saying is, we do not think that it is useful for people to be able to use the courts as an instrument to deter knowingly, or, you and I don't know that that's I don'T KNOW THAT PEOPLE WHO INTUITIVELY SIGN UP AND GO YEAH IT'S RIDICULOUS THAT YOU KNOW THAT WOMAN SPILLED COFFEE AND GOT MILLIONS OF DOLLARS I don't know that they're necessarily thinking, hey, I want to be aligned with the position of Donald Trump of, yeah, let's know might as well, like if I'm wealthy enough, you know, might as well take every case to court and you the

1:01:22 Thomas: Yeah.

1:02:08 Andrew: Worst Case Scenario Is That then I'm going to owe what I owed to start with. So that would be my take.

1:02:13 Thomas: Well, there you have it. Thanks again, as always for breaking that down for us. And Oh, we got to give a big thanks again to Tom and Cecil of cognitive dissonance. Check their podcast out. Of course, if you haven't already, thanks for for coming on. That was really fun. But most of all, we need to thank our new patrons over at patreon.com/law. And they are Christopher Dark, Brian Masters, Adam J Grier, Aaron Kelley, Cyrano de Berzerac's Nosehair Stylist. Interesting name there. Doreen, Adrian Borszczow, Eric Hyland, Latchezar Nikolov, Nicholas Vroom, Randall, Robert Almon, I Spy, and actually I wanted to call out Michael, with a nice pledge edit from 10 to 11, I believe he was the one who put us through our $1000 to a week goal. I think that was kind of funny that he decided to do that for us. I Spy, Lowercase F, oh

1:03:08 Andrew: Is Lowercase F. Hades, actually. Fantastic name. Yeah. Paul Hepburn, Brandon Smith, Alex McWhirter, Jason Valasek, Stephanie Schulze, Robert Carmody, Kate Anderson, Bloodcream Lahtáy. Thanks. We're getting some Cogdiss crossover. Joshua D., Tyson Bryan, Taylor Briggs, and Chrissy M. Thank you all so much.

1:03:11 Thomas: Thank you, pulled Of course we've got to thank our Hall of Fame patrons, Roger Met, Captain Irazari, Eli Bosnick, Dave Nichols of Positively Doubtful podcast, Steve Sigman, Jim Grove, Desecrator, Patrick Fussell, Amanda Lipknack, Club Bibliotech, Atris, Heather Leverage, Geeker 41, Sean Pity.

1:04:00 Thomas: Absolutely.

1:04:03 Andrew: And thanks as well to Hunter Ash, Kylie Reiser, Jeff S., Sakashita Fukasumi, Propanic, Philip Stromberg, Michael Schaefer, Michael, Zabby, Frederick Alstromer, Sammy, Conrad Michaels, and the Inciting Incident podcast. We could not be where we are. We certainly would not be going to twice a week without your continued support. We really, really appreciate it. We mean that as sincerely as anything.

1:04:31 Thomas: Thank you guys, and thanks for listening this week, and I guess we'll just have to see you next week.

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