OA33: Interview With The Slants

Transcript

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

0:01:17 Thomas: Hello, and welcome to Opening Arguments. This is episode 33. I'm Thomas Smith, and that is Andrew Torrez. How are you doing, Andrew?

0:01:26 Andrew: I'm great, Thomas. How are you?

0:01:28 Thomas: Doing great. Coming off our first week of two, and we're on to our second week of Two in a Week. Couldn't be having more fun. So, I don't think we have anything important to say this week, so why don't we just go ahead and get right to our first segment, Breaking Down the Law. Right, Andrew, what is the Frank Wolf Act, and is it protection for non-theists?

0:01:44 Clip: The law breaking down

0:01:58 Andrew: Yeah, so this, this was a question that was submitted to us by a number of listeners. It received significant traffic in the secular humanist community, there was a press release put out by the American Humanist Organization. Um, the Frank Wolf Act is 22 U.S. Code, uh, beginning at section 6401, and it is a provision about international religious freedom. And so, uh, you know, sort of, of without getting into it, it contains both a sense of the Congress resolution and contains provisions governing the granting of asylum to religious refugees and that sort of thing. You know, people who are victims of religious persecution from around the world.

0:02:44 Andrew: And what the recent amendment that passed, which, which was, House Resolution 1150, that was passed on December 19th, 2016, one of the sort of final outgoing acts of the Obama administration, amended that act to include, quote, non-theists, within the existing framework of protection for international religious freedom. OK, so, I mean, so what that, what that means is that there is both a finding of the Congress and there is, it is included to the list of persecuted religious groups that the specific targeting of non theists, humanists and atheists because of their beliefs. Um, so it is a significant step forward in terms of international law.

0:03:31 Andrew: Um, it does not have any domestic effect. So for example, something that, you know, you and I are both aware of, um, there was the case of the Saudi Arabian atheist blogger, um, yes. Um, and uh, other kind of similar cases of religious regimes persecuting atheists around the world, and um, so now we have officially amended the provision of that international rights act, um, that governs how this country looks to, um, applications for asylum, uh, and and specifically, specifically defines the targeting of atheists for their beliefs as an equivalent form of religious persecution. So it's potentially good for those people. Obviously, all of asylum law is a difficult topic to try and do in this segment. It's a real challenge. It is very, very difficult.

0:03:46 Thomas: Badawi, despite

0:04:33 Andrew: But it does reflect a move in that direction international law. But some of the supplemental questions that I got were questions about of atheism in groups around the country, and it doesn't have any effect with respect to that. It doesn't have any precedential value. So I got a variety of questions that were sort of related to, you know, does this mean it's going to be easier for me to start my local humanist group in, you know, Alabama? And the answer to that is, sadly, no. There's still a lot of work to be done on that front.

Um, and you know, that's an area where, um, don't know how optimistic you, you want to be, right? Like the, the, certainly, um, it appears to me that, um, and I think it appears to you that, uh, uh, our incoming president is doing a lot of pandering to the, uh, religious right on social issues, um, know Penn Gillette has essentially said on his radio show, uh, that he believes from his time on The Apprentice that, uh, that Donald Trump is an atheist, um, that, that's that certainly is consistent with what Trump has, you, practiced, right?

0:05:41 Thomas: His incredible depth of knowledge into 2 Corinthians and other books of the Bibliobly, yeah,

0:05:47 Andrew: Yeah. Yeah, even though, I mean, I think that it is, it is an acceptable, the two Corinthians, I think, was a little bit unfair from our side, right, like, it because isn't it an acceptable form for, like, you British Bible scholars to to call it two Corrinthians?

0:06:02 Thomas: Which Donald Trump surely is. Yeah, good point. Now, it's something where it's a mistake I might have made, but I would never pretend to be a Christian who has an in-depth familiarity with the Bible. But I'm pretty sure it was absurd to normal Christians. Like, American Christians would never say that. So I don't think it was unfair. But anyway, yeah, I totally don't think he's any sort of religious. I think he's only God as himself. Self, uh, but and that, and that's and, and way more so than just the typical allegation that people would throw at atheists, we're like, oh, you don't believe anything but yourself, it's like, well, no, you know, I believe in institutions, I believe, you know, the country, that everything, I really think he's the kind of person where he pretty much only believes in himself.

So yeah, no, I agree with you that it, that that doesn't, that isn't a sign, an encouraging sign for things like this, but I have a kind of a, if you don't mind, a little bit of a procedural question, because I saw just a limited kind of Twitter version of what this was, and I didn't end up looking too much into it, but I saw something that was like, Obama, with a stroke of his pen, protected uh atheists or something like that, and my first thought was that he signed some sort of executive order, which in which case that would do nothing going, you know, right into Trump, Trump could just reverse anything, but

0:06:04 Andrew: Yeah, yeah. Yeah. Yeah. Yeah. And yeah.

0:07:20 Thomas: It sounds like it's not this, but it's also, this was the House, right, which is it's still Republican majority, right? Well,

0:07:25 Andrew: Yeah, well, oh, yeah. And let me be clear. It's designated with the prefix HR, meaning House Resolution. But that's just where it originates. So in order to be signed into law as it was, right, it had to pass the House and pass the Senate and be reconciled and be signed by the president. So, yeah, it passed through.

0:07:45 Thomas: That's what I mean, like, he how, when people say, oh, he did this, did he, was he driving this the whole time, or is it just he signed this bill, do you know, yeah.

0:07:46 Andrew: Yeah, yeah. Right. Yeah. He signed it. And I don't know how much lobbying went into it beforehand. But no, I mean, it certainly a political perspective, I did not see, you know, beforehand that there was, you American humanist organization's legislative agenda. In fact, son and I participated in the Reason Rally's executive lobbying day over the summer. And as far as I know, this was not on the radar back then. There was a bill related to ending the teaching of abstinence-only education education in schools, which is, fair disclosure on our political beliefs is something that I think is a laudable and noteworthy goal. So but but but no, that's that's absolutely correct that, you know, the the retroactive press on it being Obama shepherding the bill through is, in my view, a you little overblown.

0:08:00 Thomas: Yeah.

0:08:58 Thomas: Okay, but bottom line is this doesn't really have any effect on you or I, uh, but it could help somebody abroad, potentially, who's seeking asylum, or uh, needs needs help in some way could affect that. And that's not even a guarantee. Sounds like.

0:09:02 Andrew: Right. Right. And it is and it is a talking point going forward that, you know, there is now a U.S. statute. It's, you Know, 22 U. S. C. 6412 that defines religious persecution as including the targeting of atheists for their religious beliefs, you should say, or lack thereof. But, you know, that's a fair talking point, you know, going forward to say, hey, look, you know, let's include non-believers at the table when you're talking about examining beliefs. So, you know, I don't mean to suggest it's worthless. Yeah.

0:09:16 Thomas: Yeah.

0:09:49 Thomas: So it's not, it's nothing. Yeah, it'S not nothing, but it'S NOT everything. It'S not an amazing piece of legislation that's going to protect atheists everywhere. It's just kind of, it could factor in. It's a good, it's nice thing to have in the atmosphere of, you know, of the current climate but but okay temper our expectations I guess a little bit on how much that's going to do true

0:09:54 Andrew: Yep.

0:10:12 Andrew: But, you know my belief is that the silver linings may be few and far between over the next four years. So I'm happy to grab onto that one while we have it.

0:10:19 Thomas: Right okay well thanks for that breakdown Joining us right now is Simon Tam of the band The Slants. Simon, how are you doing?

0:10:35 Simon: I'm doing well. Thank you.

0:10:36 Thomas: Thanks so much for coming on. We're really excited to be able to talk to you. It's kind of interesting to have somebody who actually experienced one of the news stories that we talked about in the show. It was really cool. So, thanks so much, for reaching out, for coming on. I'm excited, but how about we go way back and we cover things a little more in depth and talk Talk about your group, The Slants, how you guys started, you know, where you hail from, all that kind of stuff.

0:11:03 Simon: Yeah, Of course. So I actually had this brilliant idea when I was moving to Portland of dropping out of college a couple months before graduating in order to join a touring punk rock band. And that's kind of set me off on this long path that eventually I guess led to the Supreme Court. So yeah, so So when I was thinking about kind of I had this idea of being here as a musician, around that same time, I kind of missed my culture, the culture that I grew up with. And people kept telling me to kind of embrace it by watching movies. So I was buying movies from Kong and China, mainly like Jackie Chan films and that sort of thing on eBay, on VHS. Chess. And around that time period, people kept telling me that I should watch the movie Kill Bill, which I missed in the theaters because I was on tour. So one night I bought it actually on the day it came out. And I remember when I was watching it, there's a very iconic scene where this woman on Imorini, she walks into a restaurant.

0:11:22 Thomas: Typical story, yeah.

0:12:11 Simon: She's surrounded by her gang of Asian Asian gangsters or the Yakuza that she led. And I remember I just had to pause in the middle of the film because it was the first time that I had ever seen Asian Americans depicted as cool, confident, and sexy, especially by an American produced film. And so as I was thinking about it, I started thinking about my own art, music, and how despite having over 17 million Asian Americans in this country, I had never seen one on the cover of Rolling Stone or heard any on the Billboard charts or anything like that. And that's when I thought something needed to change. So I had this idea of starting a band that was kind of out there to celebrate Asian American culture.

0:12:56 Simon: Culture, and at the time I started talking to a few people about the idea and how I wanted to kind of tackle on stereotypes about Asians, and I started asking people, you know, what's something that you think all Asians have in common? And I remember one person immediately said, "Slanted eyes." And my response was like, you know, that's that's really interesting.

I thought, number one, it's not true, not all Asians and Asian Americans have slanted eyes, but number two, I thought, wow, we, we can call ourselves The Slants, we can talk about our slant on life of what it's like to be people of color, and at the same time, I get to have this cool band name that sounds like something Debbie Harry would be involved in, you know, kind of had this new wave twist to it. And so that's kind of how the the name came about, um, it was kind of this, I, I loved that the word slant meant a lot, lot of different things, um, but especially that I could use it in this kind of a reappropriated way, to use it to address stereotypes about Asians and Asian Americans. Yeah.

0:13:51 Thomas: Yeah.

0:14:01 Thomas: Yeah, that's excellent. Excellent. I really love, and we even said at the time when we were merely covering you as a news item, I think we both said, man, that is a great idea to do that and to use that name. And I like the multiple meanings as well. It's really cool.

0:14:15 Simon: There's actually a very obscure, uh, meaning that has to do with music too, because we actually use slant guitar chords in our music, and you can get slant guitar cabinets, uh, and amps, but but nobody ever gets that, that's, it's only for total music geeks.

0:14:16 Thomas: Yeah, I don't think that's the meaning Meaning that you're in the Supreme Court now for, right? No, I'm just kidding.

0:14:33 Simon: No, I guess unless they're thinking we're disparaging towards guitar amplifiers or something.

0:14:37 Thomas: Yeah. How long, roughly speaking, then would that bring us from when you formed and came up with that great name, to when the case first happened?

0:14:50 Andrew: Specifically that would be, you know, when you first filed for trademark protection for the slants.

0:14:54 Thomas: Right.

0:14:55 Simon: Sure. So I thought of the name in 2004, but it took me about two years to kind of recruit and assemble a lineup to start the band. We started using it playing shows in 2006 and began actively touring, releasing music music and playing festivals, primarily Asian American festivals and conventions and that sort of thing. But we didn't apply for a registration until 2009. A good friend of mine who is an attorney, I still remember the conversation to this day because I kind of hang it over his head. But he told me at the time, he said, hey, you guys are out there. You're on the road playing all these shows. I think it's really important for you to get a trademark registration. Illustration. And it's something I wasn't even that familiar with.

0:15:43 Simon: I was like, we have copyrights on our music, but he said, no, no, it's, this is really important to, for you, for your band's kind of brand identity. And he told me, you know, really it's only going to cost you a few hundred bucks and you'll have it in like five or six months at the very most. And of course, uh,

0:15:59 Andrew: Famous, famous

0:15:59 Thomas: Yeah. Don't take legal advice from a... No, no, I am just kidding here.

0:15:59 Andrew: Last words from a lawyer. From, from, from your lawyer? Yeah.

0:16:05 Simon: Yeah, turned out a little bit different, but at the same time, um, you Know, despite the kind of legal troubles and the back and forth that we've had with the government, at least it's given us an opportunity. It's given a much bigger platform to talk about our anti-racism work. So it's kind of like a blessing and a curse at the same time.

0:16:06 Thomas: Yeah. Yeah. Yeah.

0:16:26 Thomas: Even though it is a legal show, let me just, just for those interested in checking you out, um, you mentioned that you joined a punk band, but but what kind of music are the Slants?

0:16:34 Simon: We like to call it Chinatown Dance Rock, which is really kind of our way of saying it's 80s-inspired dance pop kind of music. A lot lot of keyboards involved. So a lot of times people will compare us to Depeche Mode, New Order, and maybe The Killers before they started to sound like Bruce Springsteen.

0:16:57 Andrew: When you, you were speaking my language there, So.

0:16:59 Thomas: Yeah.

0:17:00 Simon: Were releasing a new EP the week that we're going to the Supreme Court. So I could send you those tracks. And it includes one of the tracks that people have been writing about called From the Heart, which is kind of our letter to the trademark office. Office, uh, and people, people who take that position, um,

0:17:13 Andrew: Yeah.

0:17:17 Thomas: Is that an official legal document, that song?

0:17:21 Simon: You perhaps, if we finished it early, maybe earlier. It. Maybe would have made it into like a the Cato Institute brief, or something like that. Okay.

0:17:24 Thomas: Yeah, true. Yeah,

0:17:28 Andrew: Uh.

0:17:54 Andrew: Okay, so you apply in 2009 for trademark protection, your lawyer, um, not thinking that he's going to run afoul of the lanamax disparagement clause, says, oh, look, this is not a big deal, I've done a search on the USPTO database, um, could see myself easily, you know, giving the same kind of advice, right? This is a process. You do a search through the database to see if there's a prior registration. There isn't. And you come back and say, yeah, why don't you get trademark protection? You file. Then what happens? Take us to the next step in the story.

0:18:31 Simon: Uh, we, we filed and a couple months later he gives me a phone call and he says, he says, "Hey, Simon, we actually have a problem with your trademark registration application." And I said, you know, did I fill out something incorrectly? I probably did because this thing is really confusing. And, you know, maybe I didn't spell something right or check the right box. And he says, no, no, all that's fine, fine. And he said, they actually denied your application because they said your name is disparaging to persons of Asian descent. And, yeah, I took a moment. And then I said, do they know we're of Asian decent? He says, I'm not sure.

0:19:18 Simon: I think so. And I said, I didn't even know there, there was a law against this, especially with all these sports teams and everything that's out there. I said, what does it say? And he says, oh, he says that a substantial composite of the reference group has to find it disparaging. So I said, okay, we've been doing this for, at that point it was about two years, I said, we've be touring all these Asian American festivals across this country. Who did they find from our community that was offended?

And he said, nobody, nobody, uh, but they did quote urbandictionary.com and they included a picture of a Miley Cyrus pulling her eyes back in a slant-eyed gesture, and I, I thought this was like a practical joke he was pulling on me, uh, and he's, he's like, no, it's, it's serious, and, and he said that, um, I think they just are off base, I think that are wrong, I think we can, um, have a simple reply and, and, and appeal. And so that's when we decided to go ahead and appeal. And our first appeal had executive directors of multiple Asian American organizations kind of speaking on our behalf. We had maybe a dozen examples of Asian American press throughout North America praising our work, very positive examples, as well as all the kind of legal arguments that one goes through in making an appeal.

0:19:52 Thomas: Yeah.

0:20:40 Simon: And they came back and they still said no. And then when they came back with the second rejection, they actually cited a blog that said our concert was cancelled due to controversy over our name, and they still didn't find a single person who had actually been quoted or anyone who was offended, no organization.

0:21:00 Thomas: Did they search deeper into UrbanDictionary.com to get more into the bottom of this?

0:21:06 Simon: No, I wish they had because ironically, it's, it's Slant is not included in the printed version of Urban Dictionary. I actually checked.

0:21:08 Thomas: Yeah. Yeah. Is that on the grounds on which you appealed?

0:21:19 Simon: You know, of course, I'm going to approach it differently than the legal fight. But I remember back then we were already dropping a couple of thousand dollars on the thing and spent at that point a pretty significant amount of time. And I said, this thing, it's not worth it. I don't know why you convinced me to do this to begin with, with.

0:21:39 Simon: And he said, well, Simon, if you look at the cases that involved in this, because by then he'd been doing a lot more research, he said they primarily used it against communities of color and LGBTQ communities. And of course, he cited dykes on bikes and other famous cases like that. And I thought, oh, that's not right. And it's like, but I can't afford to keep this thing going. And he said, well, it's so important to me. I'm willing to do this pro bono, but you have to help me. You have to work for this. He's like, I called the examining attorney and I asked, said, what's your deal? What's the problem here? And the examining attorneys gave him like this checklist. He said, you got to have like a dictionary expert on this. You need to do like a national survey.

0:21:38 Thomas: Can I

0:22:25 Simon: And most importantly, you've got to deal with this article that we cited saying the band's name caused such fury that we kind of canceled the concert. And so he told me, he's like, you got to do all these things and you got recruit more people to write legal declarations and get political help. And if you could do all those things, I'm willing to do this pro bono. So that's when, for the very first time, our case kind of became public. We kind of, my publicist did a news story about it And we started actively looking for help.

0:23:00 Thomas: Ask, I was going to ask, what about that cancellation? Was that true? Was that something just someone wrote or did that really happen to you guys?

0:23:00 Simon: That was the thing. He found a blog. I think it was maybe on MySpace or something like that. It was an old blog, but it was a blog that misinterpreted the events. So I went, and that was part of my homework, right? So I, I went to the event coordinators. It was for a group called the Asian American Youth Leadership Conference. And I had their steering committee write a legal declaration saying that they had never received a single complaint about our name. There were no formal complaints that they canceled our concert because they couldn't handle it logistically. And in fact, we sent them copies of future programs where I was the keynote and the band actually did perform. So there was like actual physical evidence that we performed.

0:23:21 Thomas: Okay. Right.

0:23:51 Simon: We got Dr. Ron Butters, one of the kind of leading linguistics professors in the country who worked on the Dykes on Bikes case. He actually wrote this huge paper over the history of the term slant, showing how it had kind of lost its malice over the years, and the biggest hurdle was the survey because apparently they're at least $80,000 to a couple hundred thousand dollars, but I found two professors who wrote multiple textbooks on statistics pertaining to and kind of racial relations in the country, and both of them agreed to do it for free and donate their time and energy on this. So we basically hit every single thing on that wish list from the examining attorney, and then some, because we piled on the legal declarations, examples from the Asian American press.

0:24:39 Simon: We had internment camp survivors speaking out, and so on. I mean, the whole thing was and hundreds of pages by that point. And I remember at the time, I was working for a nonprofit, and I told my attorney, I was like, hey, at our office, we have one of those copiers that also scan and do all these things, so now I could scan the the printout of all these briefs and and we'll have a PDF that way, we don't have to go to Kinko's anymore and pay for this thing, and he said, that's true, he's like, you can, and they actually prefer a digital file, but I want the examining attorney to actually see how big of a file this is, I want him to have to hand scan every single page, uh, so we, we paid for like this, this giant box of paper to be shipped to the examining attorney and had them do it.

0:25:27 Thomas: Lawyer tactics, huh, Andrew? Is that something you've heard of in your book of tricks?

0:25:30 Andrew: Yeah. I think, I think this is akin to the uh sex and sex of male in uh Miracle on 34th Street, but

0:25:37 Thomas: Yeah.

0:25:39 Simon: Yeah. Unfortunately, it didn't work. They still denied it. They dismissed the survey right away. They said that they dismissed the expert reports, all of it, including the actual testimony from the Asian American Youth Leadership Conference. They said none of it could be verified. And then they They found six, actually four anonymous posts on the internet saying they didn't like our name. Not that they found it disparaging, not that they were Asian Americans, they just didn't like our names. They used that, and then they quoted several dictionaries from the 1930s and 1940s to support their case. And at that point, after all that work, my attorney said, you know what, I'm really burnt out of law. I don't think my case helped. And he said he wanted to leave private practice.

0:26:25 Thomas: You ended his legal aspirations.

0:26:28 Simon: Yeah, so he wanted to leave private practice, and he said, okay, I hope you find a new attorney, but I don't know what we can do. And I remember when our case went public, there was this guy out of New Jersey who blogged about our case, and I said, well, hey, what about this guy named Ron Coleman? And I showed you that blog a while back. You said he seemed to be like a really sharp guy and he was really good at IP stuff. I was like, what if we try him? And he's like, sure. He's like but, you know, if he doesn't respond to you, don't be offended. So I went to his website. I used the contact form. I said, hey, I'm in a band called The Slants. You blogged about our case. I would love to talk to you about it if you're interested. And he talked with my attorney. And at that point agreed to take it from there and do it pro bono as well.

0:27:19 Simon: But Ron had different ideas. He didn't want to continue to kind of this path down to what they call the TTAB, the Trademark Trials and Appeal Board, because he said that nobody who's ever appealed on a charge of 2A has ever won. He's like, so all these are legally their loser arguments. And he's like, you're going to lose if you do this. But he had a different idea. He said, let's cancel that one, we'll reapply, and he's like, this time we're going to apply, but nothing in your application is going to indicate that you're an Asian American band. It's like none of the imagery, none of the posters, there's not going to be photographs of you. He said, the only thing Asian about this will be your, your legal name, because I have a Chinese middle name. And he said, let's see what happens, because in his mind, Slant and is an inherent neutral word. It's not an inherent slur.

0:28:12 Thomas: Yeah.

0:28:13 Simon: So if we applied, perhaps it wouldn't make the association. Well, they gave us the same exact examining attorney who basically says, You know, that's how the luck goes, I guess. And he copied and pasted his response from our prior denial into the current application, application. So.

0:28:25 Thomas: Hold

0:28:34 Andrew: Sure. No.

0:28:35 Simon: Then, uh, when we started appealing, we did it on a procedural and evidentiary issue, basically. All the evidence that was supplied predated our current application by about two years, and we kind of pointed out things like the, the only time they ever found anything disparaging, they didn't do, was when they did search for Slant plus the word disparaging and plus the N word. And And he said, so, of course, you kind of cherry-picked your results, you didn't kind of do this neutral search back. And he said, know, Slant, you is a neutral word, why did you apply it on this case? But you've never actually applied it on any application for Slant ever. You know, there's over 800 applications for Slants and variations of the word, and we're the only ones that have ever been accused of being disparaging towards Asian Americans.

0:29:24 Simon: Well, the examining attorney broke back and said, it is incontestable that the applicant is of Asian descent and a part of an Asian band. In other words, they said we're too Asian, but because if people went to the slants.com, they see pictures of Asians, or if they go to a concert and they see Asian people on stage, they're going to automatically associate it with the racial slur and not any other possible definition, which is another way of saying, hey, anyone can register a trademark for the slant as long as they're not Asian. And so that's why we had kind of some other legal arguments kind kind of pertaining to that. And that's actually what we went to the federal circuit on, on this very procedural evidentiary kind of argument. And I remember talking to my attorneys at the time, I was like, well, don't we want to actually use all this great stuff that we got the last time around, like the survey and all this other stuff?

0:30:15 Simon: And he said, no, he's like, because this, this, this argument presupposes all the other stuff that the examining attorney brought. He's like Simon, you have to understand the federal district only cares about technical arguments, It's very procedural. They're very procedural driven. He's like, they're not going to talk about anything silly like the First Amendment or anything like that. He said, he said, we'll throw in a First Amendment argument for good measure as kind of like just in case this has to go any higher up. He was like, but they're want to talk about the First Amendment. And so even though he was prepared to talk about evidentiary issues and very technical trademark stuff, had to talk about First Amendment arguments. And of course, folks know that three-judge panel hearing, sided with the trademark office, and then a week later or vacated that decision to invite us back in unbonk, but only if we could argue on First Amendment issue. And so that's kind of how we ended up here.

0:31:22 Thomas: Yeah how how does that, Andrew, can you shed light on that? What is that? Why would they make a decision and then vacate it a week later? How does that work? It's confusing to me.

0:31:29 Andrew: The the Yeah, the, the, the suespante, uh, vacating of the original order is pretty unique procedurally, but when you have a question of first impression on En banc, we've talked about this in a previous OA, means usually at the federal appellate court level, you have a three-judge panel, which was what they had in first decision. En banc means all the judges sit.

0:31:54 Thomas: Oh, okay.

0:31:54 Andrew: And so raising, so clearly there was something that came up in that first hearing that said, you know, we think this is a question of first impression here in the federal circuit, which Which in this case, in my understanding, is the issue of whether the disparagement clause of the Lanham Act, which governs trademark, whether that implicates the First Amendment. And Simon, is that sort of consistent with your understanding?

0:32:23 Simon: Yeah, pretty much. So, and Yeah, I mean, I have theories about it, about like, you know, perhaps that was what they wanted to hear all along. And, you know, when they issued that decision from the three judge panel, they said we're bound by precedent. And that's why, you know, the only way to go around this is if this was heard unbonk. And I think the other part of it that was kind of unique about our case was that there was a 34 page addendum called additional views that were, Judge Moore basically said, you know, that she wrote the opinion, she said yeah, we got to go with precedent here, but in her additional views section she says, I believe that, know, section 2a of the Lanham Act an abridgment of the First Amendment, and she basically provided the kind of framework for arguing against, uh, against 2a.

0:32:24 Andrew: Yeah. Yeah.

0:33:14 Andrew: When a judge does that as a lawyer, you take the judge's advice.

0:33:19 Simon: Yeah. So it kind of expedited things for us. Of course. And, um, and as a result, that means, because they kind of bound the legal arguments to a singular question, that means had to accept the evidentiary record as it stood. And unfortunately, that meant court system agreed that our name was indeed disparaging to persons of Asian descent because there was no other evidentiary records or anything else that covered that. And it got to a point where even at the panel hearing, where they not only said that our concert was canceled because of controversy over our name, but they said I was literally ripped from the podium mid-keynote, which I have no idea where they even got that from, them. So, all kinds of interesting things happen. And of course, uh, for, for me, I, I wish that the record could be clarified, but my, my attorneys are like, we know it frustrates you, but there's not a lot we could kind of do at this point, you know. Yeah.

0:33:25 Andrew: Yeah.

0:34:04 Thomas: What?

0:34:21 Andrew: Yeah. And in fact, that's another topic we've talked about on the show, on how the standard on appeal, that is the clearly erroneous standard for factual determinations that are made at the trial court level. And it absolutely is really counterintuitive, you know, sort of for the average person that when you get at the appellate level that, you know, it's sort of like the facts are established and, you know, the court's going to go forward with, know, what the record says, you know, kind of notwithstanding how well it matches up to reality. And I get, I get, I feel your pain because my clients will tell me that, you know, all the time. Uh,

0:34:55 Simon: Well, It of Course. And even in the newest, uh, government brief that they filed at the, at the Supreme Court, they, they say that I'm the lead singer of the band. And I'm like, 15 attorneys signed off on this? They should have just Googled it. But

0:35:03 Andrew: Yeah. Yeah, And so, uh, the en banc hearing before the Federal Circuit, that, that was where you guys won for the first time, right? Yeah.

0:35:24 Simon: Correct, yeah. I think it was issued last December, or December 2015, I should say.

0:35:25 Andrew: Right. And

0:35:31 Thomas: Wow. So that, I just got to point out, I mean, what, five or six years of going through this that you've, I mean for, for something you originally were like, ah, I guess I'll get this trademark, Mark, whatever. Five to six years later, you're still battling.

0:35:44 Andrew: The Wheels of justice churn slowly. Well, you

0:35:47 Thomas: Yeah.

0:35:45 Simon: Yes. Yeah, I mean, it's something I've learned that when it comes to the legal system, it requires a lot of patience. Conversations. And, you know, these days when I actually talk about public policy reform with legislatures, or sometimes I'll go to law schools and talk about my experiences, a lot of times I tell them, I say, you Know, the argument that people always have against me is that they say, well, if they were wrong, you could always appeal. And I said, Well, what if no one's ever won on appeal? Like that's that should say something about how broken the system is.

And at the end of the day, is it equitable to have someone have to go all the way to the Supreme Court because they named their band The Slants? The legal procedure for this, does this seem a little bit outlandish, too much of a burden for an applicant? But I've learned a lot over the years. I'm certainly not a legal scholar or an attorney, and this kind of process made me decide that I would never really want to go to law school, but, but I've learned quite a bit about it.

0:35:59 Thomas: Yeah,

0:36:52 Andrew: Can play along with our Thomas Takes the Bar Exam segments and, you know, how you match up. One of our continuing themes in the show is that there are a lot of elements in the law that reflect intuition and that are understandable by an intelligent layperson. And then sort of listening to you, I mean, obviously you've been living this for seven years now, but you are accurately describing how cases move through from the TTAB to the U.S. Court of Appeals for the Federal Circuit to the Supreme Court. It like and it's obvious that you know you've really educated yourself, um, through the process. I'm, I'm I'm sure that you know it's come at that personal cost, um, it's maybe hopefully more fun to do it by listening to a podcast than by, uh, you having the government repeatedly tell you, uh, facts that that are not true.

0:37:38 Thomas: That's

0:37:51 Simon: Yeah. Well, maybe, maybe one day it'll make a good book or a movie or something.

0:37:56 Andrew: I think so. What do you make of, I mean, you were sort of talking about how you win at the Federal Circuit, and then the government appeals and files a petition for certiorari to the Supreme Court. And were your thoughts on that? I mean, how did that, that strike you, did

0:38:14 Simon: Well, so before went into court at Unbonk, like I flew out to DC for it, my um, attorneys and, uh, two of the staff attorneys at the ACLU, uh. Spoke to me because the ACLU got to present for about 15 minutes at that hearing as well. And they kind of had this mini meeting beforehand. They said, you know, no matter what happens today, no mater how well we do or don't do, this is probably going to end up at the Supreme Court. They said if we lose, we're definitely going to appeal. And they said, and if you win, the government's going to definitely appeal. Like striking down a law that's been on the books for 70 years now is not something that they take lightly, and they might not like the paperwork, they might Not like what's to come if that were the case.

0:39:03 Simon: So they kind of said, be ready for this. And so I kind of expected that to happen. And I yeah,

0:39:11 Thomas: Got to be pretty incredible, though, to find out like, wow, either way, we're going to the Supreme Court with this case.

0:39:15 Andrew: Right.

0:39:17 Simon: I mean, and if that was pending, if the court would actually take it or not. But, but, but yeah, we kind of knew, knew that in advance. Uh

0:39:21 Thomas: Oh, okay. Yeah? You know, one thing that occurs to me, and Andrew, or well, well, either of you, please let me know if I'm misunderstanding, but I, I don't think I got this the first time when we were talking about it, Andrew, but let's say that, uh, Simon wins, you know, the Supreme Court, uh, does that mean, because that doesn't just mean therefore bands of Asian descent who are using terms that they're kind of reappropriating and taking control over therefore have a right to trademark those terms, that doesn't that mean anybody can trademark anything even if it's racially insensitive. So, you know, even if it's like the KKK trademarking some derogatory term like that, doesn't that mean if the whole thing is struck down on First Amendment grounds, isn't that what that would mean?

0:40:12 Andrew: And it depends on the scope of the Supreme Court's ruling, but certainly I think, you know, as we said in episode 29 when we first covered the case, I think a lot of the public interest, uh, has been tied to the application of the disparagement clause to the Washington Redskins, right, and So, um, you know, as we discussed in going through the brief, the issue in the main is the constitutionality of the disparagement clause under the First Amendment. There is also a second argument in Simon's brief that relates to the application that sort of challenges it on narrow grounds. And the Supreme Court, you of the nice things about being on the Supreme Court, and that's a sentence lawyers love to begin with, but is that, you know, nobody can tell you how to write your opinion.

0:40:31 Thomas: Hmm. Sure.

0:41:05 Andrew: And so, you know, they could, there are a range of possibilities, even on victory, that that range from a very, very narrow victory that is strictly confined to the facts all way up to a very expansive victory that says we, as the Supreme Court, the majority opinion holds that the disparagement clause of the Lanham Act violates the Amendment's ban, prohibition on viewpoint discrimination. Um, so you know, there's... there's a wide, you know, range of outcomes there.

0:41:40 Thomas: So Simon, is that anything that you've ever been been concerned about? Like, what if you won to that level? Would that. Is that something that would trouble you at all?

0:41:40 Andrew: Um. Yeah.

0:41:48 Simon: No, because I don't think that our case is the kind of floodgate for hate speech. The reality is that very troubling things are being registered as trademarks anyway. It's happening all the time. 2A doesn't prevent them all the time because it's up to the subjective from the trademark office. So that's why you have some things that people would think would be deeply offensive actually registered as trademark. And other times, very benign things are denied. So it becomes very very inconsistent. That being said, to me, believe that the free speech component is crucial because the reality is that we shouldn't be riding our laws around extremely well-financed football teams who perhaps do some racist things. When I think about equity in terms of of like a social justice kind of lens, I think about the people with the fewest resources.

And so for me, that means, you know, marginalized communities who don't have the resources to appeal countless amount of times or provide countless amount of evidence that's only going to be rejected anyway, when it comes to dealing with the trademark office. So one of the things that I think would be beneficial in terms of a broader appeal is that it would allow more opportunities for those communities to kind of express themselves through their trademark registrations.

0:41:58 Thomas: Oh, I see.

0:43:19 Simon: One example that comes to mind is there was a restaurant owner who's contacted me. He wanted to open a restaurant called Fuku, which is the Japanese word for joy or luck. It was rejected because they said that the word fuku looks too much like the F word. But ironically, they register French Connection UK, F-C-U-K, without that connection. On and on. I mean, there have been numerous organizations and businesses who have contacted me because they faced similar battles. And they've chosen to either give up their business, change the name entirely, or otherwise. But now they kind of are telling me that they have hope again, that they maybe can kind of start their business again.

0:44:05 Simon: Even the most popular case, and the one that people oftentimes kind of use the what if, what about kind of scenario, is dykes on bikes. People like to say, well, hey, you know, Dykes on Bikes, they were originally rejected, But they got that objection removed, which is true after a lot, a lot of work and petitioning the director of the trademark office directly, they were able to get their objection removed. However, just two years later, when they applied to get their logo trademarked, the trademark office rejected it, saying that the word dyke is disparaging to the lesbian community, even though they could say, hey, you guys reversed that decision on our name, Dykes on Bikes, just two year ago.

0:44:51 Simon: It's still on appeal even now. And so they've been actually fighting their case even longer than us. And they still haven't won yet.

0:45:00 Andrew: And the lawyers on behalf of Dykes on Bikes filed an amicus brief in your case. Isn't there the argument that, you know, your, your case is focusing on a very narrow application of commercial speech, right? Like you're, you you remain, regardless of how the case turns out, you know, you can continue to call your band the Slants. You can continue to, you know, sort of be active, know, publicly and continue to, you know. Speak out and try and reclaim that insult, you know, on behalf of the Asian American community and those of Asian descent. Me, what your, you know, how do you respond to, you know, that sort of effort to put you into a box of just uniquely commercial speech?

0:45:46 Simon: Yeah, I mean, well, I think it's very obvious with our work that it's not just commercial speech, and numerous organizations file a registration for trademarks not simply because of the commercial nature of it. Some people register because they want to protect their nonprofit. And it's actually very common for bans to do. And I think bans by nature are artistic. And it's kind of almost ironic that we get copyright protection for any number of things. Things that could be extremely offensive. Yet the trademark is kindof the line in the sand that the government has decided to take against hate speech or anything that could be seen as disparaging or inflammatory. But it's it is interesting because the government's brief says this. A numerous briefs followed in support of the government. They keep saying, well, hey, we're not restricting uh Mr. Tam's First Amendment rights because he could still use the name. I always thought it was fascinating because their strongest argument of why I shouldn't get the trademark registration, uh that I could still used it, what whether I have the registration or or not, in my mind, is their weakest argument.

0:46:56 Simon: Because I'm saying if that's the case, then nothing about 2A actually stops hate speech from occurring. If people can use it anyways and still get common law protection, then why all the fuss? Because they're still using the name. If the intention is really to try and dissuade people from embracing controversial terms, firms, then really they're not doing anything to do that.

0:47:21 Andrew: So is it fair to say then that your position on the hate speech element is that the subjectivity and the application of 2A is what makes it a poor tool to really go against hate speech? That it's sort of up to the particular reviewing attorney to determine if, you know, Dykes on Bikes is meant here as pro-lesbian or anti-lesbian, and, uh, you know, it's it's really the, um, the discretionary nature of it that's the problem.

0:47:53 Simon: Yeah, definitely. Because they're making decisions on behalf of communities that they have no connection with. I mean, with my case in particular, they did not consult a single Asian American organization throughout the first number of years. It wasn't until much later on that they started hearing from those organizations. And And it's Also like, how do you, how do you actually create a law and enforce it if you don't have actual standards to hear by, because there's nobody in the trademark office today who can tell you what substantial composite means, is it 10%, 30%? Is that, you know, what does that mean, what is disparaging mean? They come up with these tests that they say, well, we can use this two-part test to apply to it, but but still there's no kind of objective nature.

So if someone's like me is applying, it's kind of, uh, it almost feels like a random odds, like whether or not we're going to meet that trigger or not, and that doesn't, number one, that's just bad law to begin with. But when you can take into account that, uh, it's primarily, you know, gay and lesbian communities, communities of color that like to embrace reappropriation, all of a sudden now you have a law that's kind of doubly hurting already hurting communities.

0:47:53 Andrew: Yeah. Yeah. Yeah.

0:47:58 Thomas: Yeah,

0:49:11 Simon: People who already got the short end of the stick in numerous cases throughout history now have to fight yet again because somebody misinterprets how they're using a word or phrase.

0:49:21 Andrew: Um, I think, uh, we got, um, something wrong in our original coverage of the story, which, you know, I was going from a news article and from your briefs, and I erroneously said that you were crowdsourcing your legal fees to the Supreme Court. And it's become clear in this discussion that your lawyers are working pro bono. So talk to me about what what your crowdfunding is for.

0:49:49 Simon: Sure. So our crowdfunding actually, even though our attorneys have been very, very generous in covering the legal fees pro bono, we're still responsible for appellate printing, which I've come to learn over the years is a lot higher than one would think. And I remember when I was like, hey, my friend owns a printing company. Can he just, you know, make copies? That wasn't acceptable. So it kind of covers pellet printing and then travel and logistics. So I thought it was really important for the court to actually see the faces of the people they're making decisions about. And I really wanted to make sure that our whole band could be there in person for this as well. So a lot of the kind of crowdsourcing had to do with those kinds of things.

0:50:37 Simon: And we also want to hold like a protest rally and concert in front of the Supreme Court as well. We think it's a great opportunity to talk about how laws could inadvertently affect communities of color. And so we thought it was a good opportunity while we kind of had that platform to talk about that in a much bigger sense.

0:50:56 Andrew: So when are you holding the rally and concert?

0:50:59 Simon: A few hours after our oral arguments are being heard. So, yeah, so the hearing is at 10 a.m. And then we're doing the concert at 2 p.m.,

0:51:02 Andrew: And I believe that's January 18th, right? Yeah. And I am going to try and be down. I have an office in D.C., and I'm going to try and get down there for the hearing on the 18th. So hopefully I will get the chance to do that, and we can meet in person. I know we have a lot of D.C. listeners, so Hopefully we can get, you know, some of our listeners will come out enjoy and the music and enjoy that, unique you overlap between music, social activism, and the law.

0:51:17 Thomas: Wow.

0:51:39 Simon: Yeah, I think it'll be fun, and if anything, um, later that evening, uh, at 7 p.m., we're actually going to be doing a performance, and I'm going to be giving like a, uh, a talk about, about the band, uh, at a local venue called the Electric Maid. I think it's like a community space, and, and so, um, a lot of times when I travel around the country, I have this presentation called "How, How Being Asian Got Me Into Trouble," and it kind of talks about the history of the band, kind of some of the interesting encounters we've had over the years, as, as well as the, the legal case itself. But, but it's kind of like very, I find it really ironic that one branch of the government, the trademark office, and I guess now the Department of Justice has, you know, some serious concerns about us, yet other branches of the government have no problems whatsoever.

0:52:30 Simon: So we've performed inside prisons, we've performed for the troops and on behalf of the Department And then most recently, we put out an album with our song against the trademark office, actually. We put out in collaboration with the White House. The White House Initiative of Asian Pacific American Affairs put out this new song for us. So I just find it kind of deeply ironic that I was like, maybe you guys should speak to each other more often. It well

0:53:00 Thomas: Well, I just have to say, it is so cool to hear a first-person account of the kind of just procedures and things we've been talking about all throughout this show. It's an absolute pleasure to hear that. Simon, as for you, is there anything, any last words on this issue, anything you wanted to get out there before we call it a successful and really interesting interview?

0:53:20 Simon: No, but if anyone wants more information about the band, our music, or our new album that we're dropping for the Supreme Court, they can go to our website, theslants.com. And I think people say it's the first song or album that's written for the supreme court Well, while cases have been going on, I'm not sure. And I think someone else said we're the first band to appear before the court. So it's definitely been a very humbling, exciting and frustrating journey. But our career doesn't just end with this court case. But despite that, or no matter what happens there, I'm actually really looking forward to the day when I can actually have a band without a legal case hanging over our heads. I

0:54:07 Andrew: Yeah

0:54:05 Thomas: Yeah. Yeah. Excellent. Well, thanks so much for coming on. That was truly enjoyable and I really appreciate it. And I guess best of luck, you know, either way.

0:54:15 Simon: Thank you so much for having me.

0:54:16 Andrew: Thank you very much

0:54:18 Clip: He who questions training, only trains himself at asking questions. What?

0:54:27 Thomas: Let's go to our listener question of the day, first listener question of the day, from friend of the show, Dr. Dave Hawks. So this involves the first Law'd Awful Movies, which was The Firm, which was, again, released to everybody, everybody back in December. You've probably heard it. The numbers show that it's likely you've listened to it. So I'll just briefly explain. There's a certain point during the proceedings, during the heist portion of the movie, where the wife, I believe, or wait, is it? Anyway, one of the female characters is, it's just a quick cut scene, so I can't quite remember, but she gets something at the pharmacy to sort of roofie this guy in a way.

And we made fun of the fact, Gee how important yeah, Gene Hackman, giant Gene Hackmann, uh, relative to her size. And we were making fun of the fact that it seemed like it would be impossible for just her all of a sudden to call a pharmacy, say, like, "Hey, I need to, you know, put a guy to sleep who's probably two or three times my size. Give me the exact dose that would do that." And then I'll just slip it in the drink and just, and it'll be fine for this guy who's drinking and also taking. Were making fun of the fact that it seemed like there was a lot of variables here and a lot that probably wouldn't happen and didn't seem realistic, is my recollection of it.

0:54:59 Andrew: Yeah. Yeah. To roofie, to roofie Gene Hackman. Yeah. Yeah.

0:55:48 Andrew: Yeah. And adding on top of it that the prescription, it was called in by the wife and then it was picked up by by dead Gary Busey's secretary. So that just added to the enjoyment.

0:55:57 Thomas: Yeah, so to add another layer, but Dr.

0:56:01 Andrew: But go ahead. Again,

0:56:02 Thomas: Dave Hawks, who again, maybe you'll see why he's commenting with the doctor affixed to his name there, he says, "The drug which she could have used was diazepam or Valium, a sedative dose is forgiving and broad, she was probably able to call her doctor to say her anxiety was playing up, a one-week dose could be 10 to 15 milligrams per day, 20 to 30 would likely knock most people out." So all right, we've been fact-checked, and I suppose, you know, that that sounds to me. What do you think?

0:56:37 Andrew: I am an armature when it comes to the when It comes to pharmacology, as we like to say on the show, do not take medical advice from a podcast. And and now we we appreciate the fact checking. We believe in accountability. So I hereby retract any and all jokes in perpetuity throughout the universe related to uh the mystical substance that was used to knock out Gene Hackman in the Cayman islands

0:56:41 Thomas: Pharmacology. Yeah.

0:57:04 Thomas: I don't see anything here that he addressed the alcohol thing though, right? Because that's not always good, but who knows? Maybe he is also saying that that would be fine by even sending us this question, but who knows how much he drank? All I know is there's still a lot of variables going on there and not the most realistic thing, but I suppose this goes from outright ridiculous to maybe slightly plausible given everything is just right.

0:57:10 Andrew: No yeah I

0:57:38 Thomas: Right, well, important correction there. Uh, all right, well here's the time of the show where we got to thank our new patrons. Once again, new patron will be on new patron Tuesday and, uh, top patron Friday. They, they totally flow off the tongue, those two phrases, so that's how we'll be doing it from now on. And, and thanks so much to Phil Watton, Zena, Michael Halperin, Personhood for Animals. Wow, someone taking the opportunity for like a good cause. That's interesting. Like a lobbying effort through pledging. I respect that. Snake Oil,

0:57:37 Andrew: Agree

0:58:14 Thomas: Skeptic Runs, and Daniel Titley. Thank you very much.

0:58:18 Andrew: Thank you to Chad Farrow, to Stephen Nelson, to Andrew Not Me, uh, to Jacob, uh, Jaeger-Mathis, to Alexander Lehanka, to Kevin K, Christopher Balogh, and Zachary Dayton. Thank you very much. Yep.

0:58:34 Thomas: Absolutely. That's patreon.com/law. And of course, that's where you can get Law'd Awful Movies number two and all the ones going forward.

0:58:41 Andrew: And please feel free to use, your patronage to, uh, lobby for, uh, noble and worthy political causes, and we're happy to give you all

0:58:49 Thomas: Yeah, all

0:58:49 Clip: Oh, no associate of this firm has ever failed the bar exam. No kidding.

0:58:55 Thomas: Right. Now it's my current, currently my favorite part of the show. We'll see, that that could very quickly change, that could turn on a dime. Uh, Thomas Takes the Bar Exam. Time for our answer to question five. Is that right? Okay.

0:59:05 Andrew: Right. Yeah. It's question five on the bar exam. And, uh, this is a question about garnishment. So you have a woman who owes a debt to a creditor, and the creditor goes to her employer and files a writ of garnishment and says, "I'm about to get a judgment against this woman, so I want you, the employer, to hold on to her wages so that I can, I as the creditor, can satisfy that judgment when I win in court." And the employer agrees to do so. And then the employee, the woman, files a lawsuit in court suing both the crediter and the employer, demanding that her employer lawyer release her, her earnings. And then the question is, is the court going to do that. And as usual, uh, the structure is, uh, we have two no answers and two yes answers. Um, A is no, uh, because the state procedure for protecting a woman's money until a judgment is entered is a fair one that comports with procedural due process. B is no, because the, the state has an interest in protecting the rights of creditors to collect debts through the garnishment procedure.

And then the two yes answers, C, yes, because the only party that has garnishment rights in the U.S. is the Internal Revenue Service. And then, Thomas, there is your answer, D, yes, because the interim freezing of wages without a chance to be heard violates procedural due process. Before I reveal whether you were right or wrong, we walked a a little

1:00:42 Andrew: Bit through your thought process. Yeah, this is, we're going to do this like the Monty Hall problem, and I'm going to give you a chance to take what's in the box.

1:00:42 Thomas: To recant Oh. Is that your final answer? Yeah. I would say that unless I got tricked by something, this just seems, this has got to be right. I mean, there's no way you can just, before the judgment is even final, how do you even know which way it's going to go? Unless I'm really missing something, I can't believe that you could withhold someone's wages. This is the way people people live, people live on wages, that you could withhold it for 120 days pending something. I just sounds outrageous to me. I'm going to be blown away if I'm wrong on this one. And we'll have to, you'll have some explaining to do, Andrew. Oh, yes.

1:00:50 Andrew: Yeah Uh, well, and as it turns out, you um are exactly correct. Um, so you've now moved, uh, over

1:01:34 Thomas: Hold on. Hold On. I am now three of five on an improbable run.

1:01:34 Andrew: 500 you're now three for five yeah

1:01:40 Thomas: Do you believe in miracles, ladies and gentlemen? I was, I was down and out, I was on my last legs, I blew, what was I, one for three, there was no hope, I was, I was pretty much thought about, you know what, let me, can I be honest with you, Andrew, I thought about leaving this law firm. Like, I thought, do I even have a future as a highly powered, uh, high-powered attorney at Covington Burlington Coat Factory. I really, I was worried, I questioned my future in in law, you know, I really did, which is something I'm scared I can say now, you know, it was a little too close to me at the time, I didn't want to talk about it, but three out of five, that is darn near a passing grade, so let's stop. This was a good bit, let's, we all

1:01:47 Andrew: I kind

1:02:22 Thomas: We all had a lot of fun, let's just end it here, I just called it a day, I passed the bar.

1:02:29 Andrew: Of, I kind of feel like this is, the you've been slowly winning at the blackjack table at the casino, and now, now we're about to raise the minimum bet up to, you know, know, $50 a hand, and, and how much, how much do you want to risk by going forward?

1:02:33 Thomas: This

1:02:44 Andrew: Now, um, yeah.

1:02:43 Thomas: Is the part where Andrew realizes I had him arrange the cards a certain way for a reason, and I had him using an automatic shuffler on the the bar exam questions, and he's like, wait a minute, you're actually zero percent. I

1:02:54 Andrew: Um, so yeah, no, this, this question tested the concept of procedural due process. And we have talked about, uh, substantive due process, uh. In past episodes, this is the Fifth and 14th Amendments to the Constitution. Procedural due process is what it sounds like, right? It says the Fifth Amendment says no person may be deprived of life, liberty or property without due process of law. And the Supreme Court has unequivocally held on multiple occasions dating back, could find, was 1969, a case called Snyadak versus Family Finance Corporation of Bayview, 395 U.S. 337. But the Supreme Court has repeatedly held that prejudgment garnishment of wages, because they have the ability to impoverish a wage-earning family, is a violation of the fundamental principles of due process that requires notice and a hearing at minimum.

1:03:51 Andrew: Minimum, otherwise it's unconstitutional. Um, so, uh, not only were you correct, not only were your instincts correct, but Thomas, you were, um, your justification right, the the the the fundamental idea that, uh, wages are how people, uh, how the majority of people earn a living in this country, uh, and that it seems wrong that you can just unilaterally take that away because you're a creditor and you say, "Oh, yeah, no, I'm definitely going to win in court in four months," that's correct.

And I love the fact that one of the things that we're starting to see in this segment is some of the principles that we talk about every week about how the law is not a gold fringe on the flag, magic word minefield, that questions of fairness, common sense often do, uh, enter into a legal analysis. Um, now there could be plenty of exceptions to that, but uh but this was not an exception and you uh you weren't fooled, uh, and you got it right, uh, I think most of our um, I think most of our listeners, uh, got it right as well. Um, there were some truly ridiculous answers on here, like the only party that has garnishment rights in the the U.S. is the, uh, Internal Revenue Service. That just makes no sense. Um, um,

1:04:42 Thomas: Was

1:05:04 Andrew: I'm

1:05:03 Thomas: Tempted just Because it's the IRS, I was like, somehow those bastards, they're gonna, they're going to get me. But the 120 days, I was, yeah, there's no way, there's no way you could, you could just be subject to losing your wages for for that length of time. I would like to imagine, uh, that anyone on earth would get this wrong, but I think this is likely one of the easiest questions that I'm ever going going to face on the bar. But hey, you know what? I'm still three for five at the end of the day, as to use that cliche. At the end this current day, I'm still three four five. At end of a future day I could be three for a hundred and fifty. We'll see. Right, Andrew, so who is our lucky winner for this week and

1:05:38 Andrew: Yeah, we picked Brad Daigle, who goes by at action underscore toast on Twitter, and we picked his answer, even though he got the wrong answer, because of the sort of lawyerly way that he went through evaluating the questions. So this is another person who screenshotted a huge block of text and pasted it on as an attachment, which is perfectly legitimate. Sometimes that wins, sometimes it doesn't. It wins here because I loved the kind of thorough way in which he went eliminating the other answers. So Brad says the answer would be A, I will break down why the other answer is wrong. C is wrong because the IRS does not have a sole right to garnishments. That's correct. D is wrong, because the prejudgment garnishment law on the books holds the money in escrow. So the money isn't turned over to the creditor until there is a judgment protecting the debtor from handing over money without due process.

1:06:29 Andrew: And that's wrong, but understandably so. There were others on Twitter who pointed out that the lack of due process here is that the statute that's provided in this question does not give you the right to a hearing and it withholds all of your wages. And the Supreme Court has been pretty consistent that that's a violation of of procedural due process. Then B is wrong because the state has a balanced interest between the creditor and the debtor, and not all jurisdictions have a prejudgment garnishment law.

The creditor would have to prove the debt in court before the state hasn't interested in suing the credtor gets paid for a debt. That is, I don't know about the first sentence of that, but the second sentence I think is valid, valid. And then A is the only correct answer out of the choices, but A has a problem, which I will cover later. His problem I will cover later, I think Brad sort of unwittingly answers the reason why D is correct. So I like the fact this that was how Action Toast decided to go through and approach the question. It was super thorough. It was super confident, even though it was wrong, and there's no better spirit of being a lawyer than that. So congratulations Action Toast for winning this week's Thomas Takes the Bar exam.

1:07:39 Thomas: All Right, well, fresh off three out of five on the exam, I'm writing a high that the likes of which I've never seen before, I've never felt, and coming on from the Slants. Really interesting interview. And thank you, Andrew, as always, for a great episode.

1:07:39 Andrew: Oh.

1:07:56 Andrew: Thank you, I, I had a great time, thanks to Simon who really did, uh, reach out to us and was just terrific to communicate with, um, and we enjoyed having him on the show.

1:08:06 Thomas: Yeah, really cool to actually talk to people who are involved in some of the things that we've talked about, some of those news items. I hope that becomes a trend on the show. And with that said, we'll see you on Friday.

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