OA48: Three Cases You Care About - Planned Parenthood, Gay Florists, and Litigious Quacks

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 number 48. I'm your host Thomas Smith. That over there is another host, one of the many hosts here at Opening Argument. Andrew Torrez, just a minor figure in the podcast. Sorry, I'm just trying to overstate my value because I got a question right on the bar. Actually, were you there for that on Tuesday when I got the question right? Andrew, it was pretty exciting.

0:01:33 Andrew: Well, I, I was, that was an episode that I was privileged to be on, so, yeah, so thanks for, thanks for having me back, I appreciate it.

0:01:43 Thomas: Oh, you were on. Okay, okay. I'm trying not to let it go to my head. Am I doing a good job? Am I keeping grounded?

0:01:54 Andrew: I, you know, you might want to, you may want to work on that just a little bit, we're still, I'm,

0:01:56 Thomas: Work on it? Okay, I'll work on it. No, this is, of course, our legal expert, the man who tells us all exactly what to think and we take legal advice from even though we're not supposed to. Andrew Torrez, how are you doing?

0:02:09 Andrew: I am great, thanks, for that introduction.

0:02:12 Thomas: So today we've got a great episode for you. We've got several issues, cases that people have asked about, and I love this. I love when we can get relevant information to you in a somewhat timely manner. So, let's get right to our first question of the day, and essentially, it's going to be three different cases. So, I guess it's our first case of the Day, right?

0:02:25 Andrew: Yeah.

0:02:36 Clip: The law breaking down

0:02:43 Thomas: Okay, first one. Texas judge issues injunction blocking state's efforts to disqualify Planned Parenthood from receiving Medicaid funds. What do we got going on here, Andrew?

0:02:55 Andrew: Yeah. So, OK, this case is in the United States District Court for the Western for the Western District of Texas. It is Planned Parenthood versus Smith. And this is the crazy fetal sale body parts abortion video case. Right. So you might remember the supposed sting videos that were edited together, designed to show that Planned Parenthood is engaged in selling body parts. This remains an alternative fact among the right. And in fact, I mean, it was cited when this decision came out just a couple of days ago. Texas's mentally defective Attorney General Ken Paxton said that, you know, that this case was a crime against humanity or something like that. By the way, that's a slur. That is not an actual judgment or diagnosis. Just, you know, for when Paxton sues us, come at me, bro.

0:03:49 Thomas: Just legally clarifying there. Oh, okay. Yeah. So slurs are fine.

0:03:56 Andrew: Yeah, well, it's an opinion, right? It's a perfectly protected that he clearly does not have two functioning brain cells to rub together. No, but so these people believe that the sting videos were demonstrated that Planned Parenthood was selling fetal tissue. And so the so what the state of Texas did was sought to disqualify Planned Parenthood as a medical services provider under Medicaid. And so, you know, as I'm sure our listeners know, but it was worth reiterating, Planned Parenthood is far more than an abortion mill. Right. Like, I think the numbers are either it's either less than one percent

0:03:57 Thomas: Okay. Okay. Gotcha. I think it's

0:04:41 Andrew: Or less than five percent.

0:04:41 Thomas: 3% of their services. That's the figure I usually see quoted.

0:04:42 Andrew: Yeah. Yeah, yeah, Yeah. A very small percentage of their services are abortion services. They also provide various services for reproductive and sexual health, including contraception, contraceptive counseling, breast cancer screening, cervical cancer screening and treatment, STD testing and treatment pregnancy testing and counseling and other services. And so

0:05:06 Thomas: Yeah. And if I remember correctly, the whole thing about selling body parts, there was a certain reimbursement they got for transporting fetal tissue to be used in medical research, right? And I think that was where a lot of the controversy came from, even though, again, it's totally nothing, but yeah, the fake news controversy portion. And I believe that in response, they even decided we'll just turn down that reimbursement for the transferring, like the cost associated with merely transferring the fetal tissue over to be used in medical experiments. So that, that was my memory of it. Let me know if, is that how you remember it as well?

0:05:07 Andrew: Exactly. Yeah.

0:05:48 Andrew: Yeah, that is 100 percent correct. And why don't we, you know, look, we are left of center commentators on a podcast. Why don't we see what the United States District Court for the Western District of Texas has to say? This is about their findings about the, uh, that video was put out by a group called the center for medical progress. Uh, and here's what they say on, on April 9th.

0:06:01 Thomas: Okay.

0:06:10 Thomas: I love these names. I never, that's never Old. They're always the best. The Center for Medical Progress. I wonder, hey, how many new vaccines have come out of the Center for Medical Progress? Or or Any, no, yeah.

0:06:12 Andrew: Yeah. Right. Uh, yeah, I think they have a project in coordination with the discovery Institute. So, you know, um, so here's, here's the, the, um. Here's what the, this is, again, this isthat the court says we will link it in the findings. So if you have, yeah, this is a conservative court in a conservative state issuing findings for the record. So this is not just, you know, when Uncle Frank is ranting about what it says on Breitbart, you can point to this in black and white. On April 9th, 2015, Ms. Farrell conducted a site visit with two individuals purporting to be representatives of a tissue procurement company. The two individuals, however, were not tissue procurement representatives, but were affiliated with the Center for Medical Progress, an anti-abortion organization. Using fake names, the two anti-abortion activists attended PPFA, Planned Parenthood, conferences and portrayed themselves as starting a company interested in connecting Planned Parenthood health centers with research studies. In response to an email from these activists, Ms. Farrell arranged the site visit to PPGC's headquarters.

0:06:26 Thomas: And This Is A conservative Court, Yeah, Hold.

0:07:24 Andrew: PPGP, anything that begins PP in this opinion, is a Planned Parenthood subsidiary. There are a number of subsidiary organizations that interlock. So, arranged for the site visit to Planned Parenthood. During the site visit, one of the activists secretly videotaped conversations with Ms. Farrell and the tour of the PlannedParenthood facility she provided. Ms. Ferrell also arranged for The Anti-Abortion Activist to meet with the Ambulatory Surgical Center director and take a tour of The Surgical Facilities. While touring The Surgical Facilities, the activist asked to see an example of fetal tissue and the host's obliged. All of these interactions were covertly recorded, netting over eight hours of undercover video. A few months later, CMP released a series of undercover videos, including the one filmed at Planned Parenthood's headquarters, purportedly showing Planned Parenthod and its affiliates contracting to sell aborted fetal human tissue and body parts.

0:08:14 Andrew: The release of the video prompted a number of federal and state investigations concerning Planned Parenthood organizations. In Texas, the district attorney, together with the Texas Rangers and the Houston Police Department, investigated Planned Parenthood. The investigation found no wrongdoing by Planned Parenthhood, but the grand jury indicted the two anti-abortion activists who Created the videos. These charges were eventually dismissed. During the same period, the Texas Attorney General's Office, Texas Department of State Health Services, and HHSC all conducted their own investigations. Aside from HHS's allegations with respect to the Texas Medicaid program, the record includes no additional findings of wrongdoing from and no efforts to revoke any license or qualification of the plaintiff providers. So there you go. Video, eight hours spliced together.

The result of an investigation in one of the most conservative states in the country led to not any arrest of anybody at Planned Parenthood, but the arrest of the people who made the videos, even though that was later dropped. And again, obviously, that was dropped because, you know, that the entire investigation was was meant to show wrongdoing by Planned Parenthood in the first place. So that's the finding. What did the law, the the Texas's efforts here under Medicaid individuals who are eligible for Medicaid have a right? This is a Supreme Court decision. It's O'Bannon versus Town Court Nursing Center. They have the right to choose among the range of qualified providers without government interference. And so what Texas was trying to do was decertify Planned Parenthood as a, quote, qualified provider of medical services based almost entirely on these debunked

0:08:35 Thomas: Yeah. Yeah.

0:09:19 Thomas: Editing Yeah, tell

0:10:06 Andrew: Videos. Right, yes.

0:10:08 Thomas: You what, I could edit Andrew to make to look, to look like just from this episode it could look like he was selling body parts. Easily and This has not eight hours of audio, this is, we've got what we've got, about 12 minutes or or so, 10 minutes, I could easily edit Andrew. In fact, I probably will. Let's just do, change the episode. It's going to be Andrew sells body part.

0:10:27 Thomas: No, just the body parts for everyone. Yeah.

0:10:27 Andrew: It's a new Patreon reward. If you're a patron, we will have the edited version of me encouraging you to sell your body parts to illicit blood banks or whatever. Like,

0:10:41 Thomas: It's, it's the point being as someone who edits it's, you get, there's a lot of control you have over the finished product, a lot, especially with eight hours of footage to choose from. Them.

0:10:44 Andrew: Yeah, Yeah, And So no investigation revealed any wrongdoing, uh, anybody continuing to cite those videos is just, um, they're They're now, I

0:10:59 Thomas: And of course, I mean, it's so weird that I don't get it. I mean it's one thing to be against abortion. I get the people and I even get that there are a lot of people who think it's murder. Sorry, this is the time this has to express an opinion portion of the show. Apologies. But there's a lot people who thinks it's a murder. Okay, I can even understand that you are of that belief.

But do you really think that, can't those people understand that the people on the other side don't think it's murder. They think it is a right to bodily autonomy. Isn't it enough that those people just want to be doing the service? It is not enough for these hardcore conservatives. They have to think that Planned Parenthood, I just saw one.

The reason I am so fired up about it is I just seen someone link an article the other day that was like it is some Some apparent ex-Planned Parenthood who was there in 1992 or some crap who says that they get off on it, They sell all the baby parts, they try to upsell on abortion, all this evil stuff that no one would ever do. I mean, one person out of a billion would be so evil as to try to do all this horrible stuff to these women and to their babies and all this crap. It's so weird to me that conservatives, even if you're someone who's anti-abortion, can't just say, well, these are just people who look at abortion differently and therefore they're providing a service. You know, it's like they have to be these evil devil worshiping, baby chopping up, selling. It's så weird.

0:12:33 Thomas: Sorry.

0:12:32 Andrew: I, I got I've, no, I've got

0:12:34 Thomas: Anyway.

0:12:34 Andrew: Scott, I have absolutely nothing to add to Thomas's, Thomas's abortion. Look, I think that, I think you've, you've hit on sort of the core of it, which is there are people who are religiously committed to the idea that this is a manifest.

I mean, we've seen it, that this is, that abortion is not only a manifest evil, but it is an evil on the order of the Holocaust, cost, right, that, that and so Uh, consistent with that worldview is, I think, like that the and of course anybody who's involved in it, they know, you, you couldn't, right, like, I mean, because again, right, like, draw out the analogy, right, like, if you are one of the guard operators at Auschwitz, like, you know, you know what you were doing, right, like you can't justify It To yourself and so I think they kind of take that principle of analogy, um, we have, you know, we have some conservative listeners, so if you are, uh, if you are pro-life and you're listening to the show, uh, drop us an email if, tell, if us, because I'd really, I, I don't want a character, I don't want a caricature the other side, but, uh, but I find myself

0:13:03 Thomas: Yeah, right. Right. Yeah, I don't mean to suggest everybody who's pro-life is like that, but there's a significant presence of pro-Life that are just so immersed in this fake news, Holocaust-like, As you pointed out, storyline about Planned Parenthood, and it's just such nonsense. Anyway, but yes, so of course, of course there's no devil-worshipping, horrible baby be chopping up some parts selling going on, of course not, uh-huh.

0:13:47 Andrew: Right, Yeah, Um, So this opinion is, uh, grants a preliminary injunction, right, this is a subject that has been of much discussion, right, same Four standards they walk through, uh, it, it, um, I, I don't even think we need to apply them

0:14:21 Thomas: There's Four Of them, 400, I'm gonna try to guess what was it, okay, so probability of success is one Of them, probability of successful the merit Right, it's going to be, yeah, the irreparable harm, uh, of, oh, I don't have all the legalese, Andrew, that's what I don't know, I know the concepts but I can't, I can't put it in the way that you do, the undue harm if you allow the thing to continue, I guess, basically, right Right. That's one of them. Oh, there's two more. I thought there was three. Are you sure there's four? Go back and reach.

0:14:27 Andrew: Right. Right. Right. Are Right.

0:14:55 Thomas: Go back and recheck your Harvard education.

0:14:55 Andrew: There are four, but three and four overlap pretty substantially. So yeah.

0:15:02 Thomas: What's, okay, give me, give me the final two that are related, that I can remember, yeah

0:15:04 Andrew: Okay. Well, let me just go. Here's the four-part test, right? So one, substantial likelihood of success on the merits of the underlying claim, right. That's the freebie. Number two, substantial threat of irreparable harm if the injunction is not issued, right? That is, you won't be able to remedy this with money later on. Three, that the injury, if the injection is denied, outweighs any harm that will result from granting the injuction, right, so the balance, and, well, but remember, demonstrating any kind of irreperable harm, we actually went through this on one of the episodes, Right. Like if if I could demonstrate irreparable harm, but the equities could so greatly favor go the other way that we would say,

0:15:12 Thomas: That was a freebie, I got that one.

0:15:20 Thomas: Right. Sure. Okay. That Bullet That blends in with the last one for me a little bit, So maybe that's Why Okay.

0:15:50 Andrew: Well, you know what? Too bad. Right. So the equties have to favor granting the injunction. And number four, and this is this is really we've elided over this. I don't blame you for not remembering this one, that the grant of the injuction will serve the public interest.

0:15:51 Thomas: So That's The difference, Oh, Yeah, I don't even remember That So Is that a minor footnote on the four-point test It pretty much Always does Does much have many injunctions ever hinged on that particular one Are there Any That you can think of, okay

0:16:06 Andrew: Yeah. And again, yeah, you go through it, but many, no. I can't think of any. I do not want to say there

0:16:24 Thomas: Okay. So I'm Just making excuses for myself Hey,

0:16:26 Andrew: I don't want to say that. There are none, uh, because injunctive relief comes up all the time. So I'm sure there's a case here or there. Uh, but, uh but I don t know of any and and and typically.

0:16:27 Thomas: Yeah Well, Next time I'm gonna get these four I'm, I'm going to do it. Okay. So this time I got like two and a half. And I think next time I'll get all four.

0:16:39 Andrew: All right. Right. So, um, it's pretty easy to show all of the other, uh standards as as usual. This is a case where, uh I find the decision interesting for its determination that the plaintiffs were likely to succeed on the merits, right? And so they have to go through and examine the evidence that was cited. And so the case says as a threshold matter, the CMP video is the only evidence the inspector general relied upon to conclude that Planned Parenthood violated medical and ethical standards. While the chief medical officer did provide the inspector General with his opinion, that opinion was offered only as It's an analysis of what the video showed. Ultimately, the strength and quality of the evidence that the video provides is suspect. While the record shows that the inspector general knew there were multiple versions of the video available on the Internet, they offered no evidence that they took steps to authenticate the video, verify that it had not been altered.

0:17:40 Andrew: Indeed, Indeed, they offered no evidence to authenticate the video at all. And then the court says to summarize the video for those not blessed with eight free hours to watch it. The vast, yeah, which is good, you know, the vast majority of the footage concerns conversations between Ms. Farrell, the director of Planned Parenthood, and the two anti-abortion activists during the site visits. A 30-minute segment features a tour of the ambulatory surgical center, which includes conversations with the director and a visit to a laboratory. And so, you know, I could read more. I've read a lot from the opinion. This is, I think, important for a couple of reasons. Reasons, once you win on an injunction like this as the plaintiff, because you have demonstrated a substantial likelihood of success on the merits, the court has now said, we think that you have won your case. We can go through and analyze all this, but we think that you've won your place.

0:17:50 Thomas: Yeah.

0:18:36 Andrew: So they've issued the injunction. They've stopped the state. This will now get appealed to the Fifth Circuit. The Fifth Circuit, as we've discussed, is the most conservative conservative uh judicial circuit in the country, uh, we'll see what happens, but on um appeal, you are stuck with the factual record below, and um, and this, this factual record is, it's pretty damning.

0:18:56 Thomas: Yeah.

0:18:56 Andrew: I will be, I will be really interested, look, like, I don't know, I practice in this area, uh, in this geographical area, meaning Maryland and the Fourth Circuit, so I'm, I'm comfortable opining about what the Fourth District will do, uh, I, I don't know these Fifth Circuit judges. Maybe, you know, maybe you wind up with a panel that is, you know, politically activist. But but I have to think there's a there's... there's a reasonable likelihood that that this is going to survive. I mean, this is just seems to me that this Is a clear overreach. It's based on something with that's just factually false. And, you know, and it's good to see that the court has has has come out on the right side on this so

0:19:10 Thomas: Yeah. I just, man, I know. I know it. This is not a legal issue, but I just I can't. I will never understand the people like the two people actually perpetrated this. Like they know that what they're doing is bullshit. Shit. They have, they have the original eight hours, you know, of just nothing. And then they cut it together to make nonsense. I don't, I'll never get it. But anyway, sorry. So weird. So I think that settles our first summary of our first case of the day. Thanks for taking us through that. And we'll go on to the the next one All right, Andrew case number two for the day. Oh I just love this one. There is a, anytime I get to read from the national review, uh, you You know, to start us off, I'm excited. I'm just going to read the headline of this National Review article and the first paragraph because I think people will love it. The ruling in Washington v. Arlene's Flowers should chill First Amendment advocates everywhere. I'm hooked.

I already love it, you know, maybe they need a First Amendment Defense Act because it sounds like the First Amendment is under attack here. If you care about the Bill of Rights, the rights of conscience, or even the English language, I want to hear how that comes into play later, Andrew, I don't know if that's part of your analysis. There's a chance that this morning you felt a disturbance in the force, as if the founders cried out in rage and were suddenly silenced.

0:19:37 Andrew: Yeah

0:21:04 Thomas: That disturbance was the Washington Supreme Court's oppressive ruling in State of Washington v. Arlene Flowers, a case holding that a florist was bound by state law to use her artistic talents to design floral arrangements to celebrate what she viewed as an immoral event, a gay wedding. Okay, here. Okay, that's hilarious to me. I love the language and the outrage and all that. And it's funny, but only because usually these turn out to be completely misrepresented or something like that. So, I want to ask you, Andrew, because I'm wondering now as I read that, if I've understood this whole thing correctly, because I thought if you were just a person, like you're just a independent contractor, just like a sole proprietor, whatever, who just goes and provides something like flowers or photography or whatever.

0:21:51 Thomas: I, I thought that if a guy or a gay couple comes to you and asks or calls you or emails you or whatever and asks, hey, do you want to do photos or flowers for our gay wedding? I thought you could just say no and there's no problem. But, and headline is having me worried that I'm misunderstanding something. So let's break it down. And by we, I mean you, as usual. What's going on here?

0:22:12 Andrew: Okay. So, so A couple of things that, that, that are at issue here. The first is that this illustrates a principle we've talked about in a number of episodes about how states can enact greater protections against discrimination that sit on top of the federal mandatory minimums and, uh, and expand protection. And so in the state of Washington, the law is RCW 49.60.030. Okay. Freedom from discrimination, declaration of civil rights. And here's what the statute says. It says the right, right to be free from discrimination because of race, creed, color, national origin, sex, honorably discharged veteran or military status, sexual orientation.

0:23:03 Andrew: So Washington is one of the states that recognizes sexual orientation as a protected class. Or the presence of any sensory, mental, or physical disability, or the use of a trained dog guide or service animal by a person with a disability is recognized and declared to be a civil right. Right. This right shall include, but not be limited to, A, the right to obtain and hold employment without discrimination. B, the right to the full enjoyment of any of the accommodations, advantages, facilities, or privileges of any place of public resort, accommodation, assemblage, or amusement. C, the rights to the full enjoyment of any of the accommodations, the right to engage in real estate transactions without discrimination. D, the rights to engage in credit transactions without discrimination, either right to engage in insurance transactions or transactions with health maintenance organizations without discrimination, provided.

0:23:50 Andrew: And there's an exception. F, the right to engage in commerce free from any discriminatory boycotts or blacklists. And then there's a long thing on that. And G, the Right of a mother to breastfeed her child in any place of public resort accommodation, assemblage or amusement. OK,

0:24:05 Thomas: So interesting. So it's still sounding like the usual thing, which is public accommodations. I'm curious where then how this ties together, because this paragraph made it sound like Like this Arlene's flowers was just some poor woman just minding her own business. And then a big, you know, like evil gay couple just grabbed grabbed her by the lapels and said, you must do flowers for a gay wedding. And she was like, oh, gosh, I don't want. You know, that's what it sounds like. So what's the disconnect here?

0:24:29 Andrew: Yeah, well, as it turns out, Arlene's Flowers is a florist shop. And what they do is they they sell flowers to the public. And so what anti-discrimination statutes do in this? We've said this a number of times. Sometimes I don't know how to say it any more clearly than this, but it says if you sell a product or provide a service to person X, you may not refuse to provide that service to Person Y on the basis of a protected class, right? Right. So if straight people come in and say, I want to get married, I want to buy flowers and you say, yes, I was I'm a florist. Of course, I'll sell you flowers.

Then you cannot say when somebody comes in and says, I want to be married, sell me some flowers. No, I'm not going to sell you any flowers. You're black. Right. I don't I don'T sell flowers to interracial weddings. Right. And similarly, you can't say I am not going to provide you with exactly the same service that I provide to straight couples, uh, because you happen to be a gay couple, um, and and and the the crucial misunderstanding, and it just it continues to sort of befuddle me that um that people misunderstand uh what anti-discrimination statutes do. I would, I would strongly commend, I think you had a great discussion of Canadian Bill C16 on Serious Inquiries Only, uh, if you remember the episode number, um, you were you were discussing

0:24:36 Thomas: OK. Uh huh. Right. Right. Oh, I down.

0:26:00 Andrew: Jordan Peterson and uh that is just such a trope out there that um, you know, the idea that these uh anti-discrimination statutes, you know, sort of sit in the air and apply, like if you're in your basement and you say, I believe God intended for a wedding, you know, for marriage to be between one man and one woman, that, you know, that federales are going to kick in your door, right? Yeah.

0:26:01 Thomas: But sure. Look it up. Thanks. Yeah.

0:26:24 Thomas: Windows are kicked in, yeah, the guy, there's always a guy coming from the roof with a on a rope too like they cover all sides they get you, that's how they get ya, that's the key thing. Right, the key thing is a flower shop, like a public thing, like it's not, so but I want to make sure, because this is, this is pretty important, because I actually do think it is a good feature of the law to allow for just a person who's like, say you've got a Craigslist ad out for, are like, oh, I do DJing or something. I do think it's important for that person to never be compelled to

0:26:28 Andrew: Yeah. A la Mission Impossible. Yeah, right.

0:27:01 Andrew: Yeah,

0:27:01 Thomas: Take clients that they wouldn't want to, but that wouldn't apply here, right?

0:27:02 Andrew: Look, there are a whole bunch of sort of misconceptions, right, like the first is a purveyor of a business or service, right you have the absolute right to refuse service to any person on an individual ground, right? Like if what she said was, you know, boy, I thought these people seemed dangerous to me, right, or, you know, I don't know, they seemed like they didn't have sufficient funds to pay for it, so I didn't want you to, like, anything that is a business judgment is not remotely implicated by that, unless, you know, your business judgment is code, right. Like if, you know, if you say, well, I don't serve, I don't sell flowers to people who seem dangerous, and then I establish evidence that what you mean by dangerous is black people, right? Like that, you know, then, yeah. But you always retain, you know, kind of that individual freedom to accept clients on an individual judgment basis.

0:27:58 Andrew: The question is, are you discriminating against a category of individuals on a protected class, right. The second is the notion that there is some sort of affirmative creativity requirement. Right. So and what people say all the time is, well, you know, I wouldn't want Jewish bakers to have to bake a pro Nazi cake or whatever. Well, if it the only way in which that would apply in a case like this is if you routinely baked pro Nazi cakes, but you refuse to sell them to actual Nazis and being a Nazi was a protected class. Right? Right. So the

0:28:38 Thomas: Yeah, I saw you on Twitter talking about this. It was hilarious. Someone, I think, worked you into like a little, or not you, but like worked it up into the perfect contradicting scenario That actually made sense, right? Hipster,

0:28:49 Andrew: Hypothetical I came up with was Hipster Hitler's House of Ironic Cupcakes, right?

0:29:01 Thomas: Hitler's House of Ironic Cupcakes. I love, start that business, right,

0:29:03 Andrew: Yeah. But even then, you can still run Hipster Hitler's house of ironic cupcakes because being a Nazi is not a member of a protected class, So to

0:29:11 Thomas: If you refuse to sell your Nazi cupcakes to Jews, or yeah, or like gay people or something, then we'd have a problem.

0:29:14 Andrew: Jews, look, there Is no scenario under the ordinary application of all of these decisions that are anti-discrimination decisions that results in the kind of slippery slope arguments that justify the hyperbole in the David French article from the National Review that you were reading. And I want to point out two things with respect to that delightful bit of prose that you introduced this segment with. Number one, that is word for word what is published in the National Review. You should go. We're going to link to it. The article is amazing.

0:29:19 Thomas: Yeah, Yeah.

0:29:52 Andrew: And number two, David French is the guy that many were trying to recruit to run for president instead before Evan McMullin ran on an independent ticket to get, you know, conservatives to not vote for Donald Trump. So Bill Kristol touted this guy, the guy that wrote the language that you read out loud to be president of the United States, which I just find, I would say I would find it hilarious, but we have a president.

0:30:20 Andrew: So I don't. So, yeah, look, this is a Gordon variety. I mean, the fact that this is being held up as if it is, you know, some sort of weird encroachment is is just I mean number one, I read you the statute. So the Washington statute has as a unique feature the affirmative the affirmative establishment of a right to be free from discrimination, which is limited to which which sorry, which includes but is not limited to then, you know, those enumerated rights. That's a little bit of a different structure to these events. Rather than strictly prohibiting only certain kinds of conduct, it says you have a right not to be discriminated against on the basis of these protected classes. And examples of discrimination include but are not limited to A, B, C, D, E, F.

0:30:20 Thomas: Yeah, the

0:31:08 Andrew: So what that means is something that doesn't quite fit those categories would might not be an activity that invokes the the federal anti-discrimination statutes like Title VII of the Civil Rights Act of 1964, but might provide you with relief in Washington. And again, you we're talking about, you know, the National Review, an ostensibly conservative magazine, right? Like this is the core of what federalism is supposed to mean, right. Which is to say the, yeah, the people in the state, right, they're laboratories of democracy. People in the state of Washington say we value, because, because look, I don't, I don't want to suggest that there is no trade-off, right! Like we, you and I have talked about this and you just sort of gave some voice to it, right? Right. Like every time you say a business of public accommodation, somebody that serves the public is required to do X, you are interfering a little bit in some small way with the freedom of that business owner. Right.

We have lost a little Bit of of the defining features of capitalism. Right. Which strict capitalism says, you know, it's my business. I do what I want. Right. And we've said as a society like we don't want when. When the impact of capitalism is such that I do what I want means no Negroes allowed, that we would rather – we would take that hit.

0:31:36 Thomas: State gets to just decide, hey, we want this to be our law, and then they're like, oh, states' rights, right? Shouldn't that hit me? Yeah, And

0:32:34 Andrew: We will restrain the liberties of individuals to run their restaurants as they see fit in order to promote social order and harmony and integration. And almost everybody agrees that that's a good, – that that is, – that's an unambiguously good thing about our society.

0:32:54 Thomas: I asked, he's got a paragraph here that I wonder if you specifically know what the hell he's talking about, just in case there's some misunderstanding. He says, "He says, let's be clear, according to the plain language of the law and the undisputed facts of the case, Stutzman, who I guess is the florist, did nothing illegal. She had always consistently and joyfully served gay clients." I love how he adds joyfully, like he knows that. "Including the man who ultimately decided to bring potential ruinous legal claims against her. On each of these prior occasions, however, she was not using her artistic talents to help her clients celebrate an occasion she considered immoral." What's going on there? Do you know?

0:33:31 Andrew: I, I I Ithink he's misreadingone of thenegative facts ofthis case asifitwereapositivefact. This is the only thing, this is theonly Thing that I think to which it could apply. Uh, this is page three of the opinion, that says that the plaintiffs had been a customer at Arlene's Flowers for at least nine years, purchasing numerous floral arrangements from Stutzman and spending an estimated several thousand dollars at her shop. Stutzmann is the owner and president of Arlene Flowers. She employs approximately 10 people, depending on the season, including three floral designers, one of whom is herself. Statzman knew that Ingersoll is gay and that he had been in a relationship with Freed for several years. The two men considered Arlene Flowers to be, quote, "their florist." So to me, the illustration there is here's how we're establishing that you're discriminating against us on the basis of being gay, which is to say you're perfectly happy to sell us a flower when I'm just coming in and buying floral arrangements for some other reason.

0:33:37 Thomas: Really? Yeah.

0:34:31 Andrew: But when I want to actually go out and have a wedding and have your flowers be there, All of a sudden now we're not good enough for your money. Right. You've been our florist for nine years. Right? So in some weird world, I think what French wants to say is that as long as you only discriminate sometimes against gay people that it's okay. Like, you know, sure. Look like she sold them flowers for Valentine's. And it doesn't say Valentine's Day, by the way. Like, I have to assume if you, you Know, if you're a florist, I mean, let's imply let's spin this hypothetical out a little bit, right? Like, what exactly is the Christian argument that says, I will give I will serve gay people and give them floral arrangements for Valentine'S Day, but not for their wedding, right. Right. Like I firmly believe, you know, yes. For cohabitation outside of marriage. Yeah. Go at it. Right. Right.

0:35:21 Thomas: Well, I think he's trying to make the... I think He's trying to claim the difference between like having to put some artistic like creativity into it, I guess. I think that's the thing He's saying, trying to say, like, it's one thing if you just grab some pre-made flowers, like pre-arranged flowers in a shop. It's another if you, you know, are required to like, I guess, consult and and come up with an arrangement or something. I mean, is, do you see a distinction there

0:35:39 Andrew: Yeah and I only one without a difference. Right because any service any professional service is going to require the application of creativity. Right like when I serve legal clients. Right I have to find out what their business is like. You know, everything, everything, I think he's trying to make by implication one of the common misunderstandings here, right? And, you know, there was a certain podcast that made the argument in response to an exactly similar situation as to this ruling that said, well, I don't want to have to produce. I'm an atheist podcaster and I don't want to have to start producing Christian podcasts, right. And that, that's what I think the argument is meant to imply. But again, the disanalogy is very, very obvious. Right. We are not under this statute. The court is not compelling Arlene's Flowers to exercise their creativity in a way different than they exercise their productivity for every other client that walks in the door.

0:35:58 Thomas: Yeah If

0:36:56 Andrew: Right? Right. There's absolutely nothing that would say. Right. So we would not have to, you know, do a version of this if we were in Washington state. We would not Have to do a Version of Opening Arguments that is, you conservatively based pro-Trump and pro-religious right. Like it, but what It would say is if somebody wanted to download, if we Were in Washington State and somebody Wanted to download Opening Argments or, you Know, become a patron and we said, no, no no, no. Like, uh, you know, uh you're a member of this religious group.

So, you know, no, uh then, then, you know, we would rightfully be brought up under the discrimination act. Like you know it, it, uh We serve the public. Uh, anybody who serves the public and is subject to an anti-discrimination statute is required to offer the same services, uh, to members of the protected group that they would offer to non-members of the protected group. That's it. You don't have to do anything, anything special, there's not some kind of like crazed holocaust of Christians, um, I, I want to point out you didn't read the title on this article, uh, which was "Washington's Supreme Court

0:37:33 Thomas: Yeah. I not?

0:38:00 Andrew: Imposes its progressive faith on a Christian florist." Uh, know we live in a world of alternative facts, but, but even, even for alternative facts, that's, that's kind of amazing. So, you know, it's this is a garden variety anti-discrimination case. It is novel here because it attained some prominence. But this was never, in my, in my view, this was ever a close call, all given the law. It ought not to be considered a close call. And, and anybody that wants to think that this is leading to some sort of slippery slope where, you know, you, you can't be a Christian, like, now. Like, look, like, what this means is if you have, if you don't like working with gay people, then don't be in a business that serves the public.

0:38:49 Andrew: Right. There are lots of things you can do in this world besides open up a business. And if you dislike gay people and it bothers you to your religious core. I'd like to talk you out of that, but if I can't talk you out of it, the accommodation in public life is that you should not open a business that forces you to do that. And no one's forcing you to open up a floral business, right? And look, It applies on the other end of the spectrum. I know there are atheists. Gosh, I heard it on one of the shows, and I'm not going to be able to correctly identify it. But there are atheists who say, I just don't enjoy interacting with Christians. Not true with me. I don't want to be like, some of my best friends are Christians. But some of my best friends are Christians, right? I don't have any problems interacting with religious people. Most of my clients are Christians, right?

That's part of why I feel comfortable, uh, having a law firm that serves the public, right. I serve Republicans, I serve, you know, conservatives. I say, if, if you're not comfortable around a group of people, then maybe you shouldn't be in the public service business. I'll get off my soapbox now.

0:39:15 Thomas: Yeah.

0:40:03 Thomas: Yep, other and funny thing is like you don't even really have to like it. Like all you have to do is just, just do your, all you have to make money off of like, you know, like it doesn't cost you anything. It's actually turns you a profit. Like just go arrange some stupid flowers and just, yeah.

0:40:11 Andrew: Yeah take take the gay wedding money and donate it to Operation Rescue or something when you're right. Like, I mean, it, we, we advise, uh, you know, people on our side all the time. You know, there was a, uh, a certain, uh, podcast that's been saying awfully slanderous things about you, uh, Thomas, that once ran ads for Donald Trump. And, you know, we suggested that they take that sweet Donald Trump ad revenue money and, you know, spend it on a variety of progressive causes. Make an excellent point, right?

0:40:26 Thomas: Yeah. Yeah.

0:40:51 Andrew: It is not, it's not even, it is not even like it is, you know, be willing to bite down hard on the inside of your cheek and grumpily serve the public. And, you know, if you can't meet that minimum threshold, then maybe a business with customers is not for you.

0:40:51 Thomas: Yeah.

0:41:10 Thomas: Yeah. Good call. All right. Well, it sounds like it's just the usual misunderstandings, but they persist. So we'll try to continue to, you Know, penetrate that. But, uh, all

0:41:21 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.

0:41:31 Thomas: So on to our third case for the day, and. Steven Novella, the producer of the Skeptic's Guide to the Universe, is involved in a, this looks like the decision here. So what's going on with this one, Andrew?

0:41:45 Andrew: This is an 11th Circuit opinion in favor of Mr. Novella. And I believe you and I are both fans of the Skeptics Guide to the Universe podcast. One of the things that Stephen Novella does is he goes after medicine practitioners and so, and he characterizes them as quacks or, you know, dubious health clinics. Right. And this involved a particular physician who was of the opinion that there was a, an off label use for a certain kind of medicine. And what, Stephen Novella did was he, of, wrote a debunking of this use.

0:41:45 Thomas: Oh,

0:42:32 Andrew: And he said, you know, among other things, you should know that this guy kind of has a one man outfit, that he was placed on probation by the California Medical Board, has been disciplined. And, you know, and this kind of seems like a, an untrustworthy and sort of quacky process. Right. And then, happens sometimes, and we've discussed this in the past, the victims filed a lawsuit and they alleged kinds of, of commercial harm and also libel claims against, against Novella and Skeptics Guide to the universe.

0:43:11 Thomas: Okay. So they sued him first.

0:43:12 Andrew: Yes, they did. And then this has been going on for a while. And I think there are two really significant components to the ruling. And so ultimately, he prevailed on summary judgment. There was this has been expensive and costly litigation. You know, we've talked about that in the context of blogs and podcasts and public discussions that, you know, when when you get sued for defamation, that that can be even if even if you are in the right, that it can it can have a deterring effect. Effect because, oftentimes the questions at issue sort of turn on fact specific inquiries. Right. So, you was this term meant as a casual insult, right? Like my casual insult of Texas Attorney General Ken Paxton, which I I stand by. Or was this a factual claim?

0:43:13 Thomas: Okay. Right. Right.

0:44:05 Andrew: Right. And so, you know, when when things kind of are turn on that hairline decision, you Know, one of the things that we've talked about procedurally in a case, this is actually relevant to our discussion the from last week of Trump's tax returns, and how they might play into the CREW lawsuit, you might remember, the first question I answered was the question of if the CREW lawsuit is dismissed for lack of justiciability, will they still have the opportunity to conduct discovery, right? And the answer to that was no, right, because the difference between what a motion to dismiss says is even if the allegations in the complaint are true, they don't rise to the level of asserting a cause of action, right.

0:44:51 Andrew: So a good contrast is if you, Thomas, were to sue me for trespassing onto your property and you say, "Andrew, snuck out of my property and stole this stuff and I want civil damages against him for trespass and conversion" and I didn't do it. Right. And my defense is I didn't do it and you have no evidence that I did do it. I can't move to dismiss. Right. Like because.

0:45:19 Thomas: Because you need to evaluate that.

0:45:21 Andrew: Right, we need to have it. And that's what the discovery process is. It says, OK, what's your evidence? Right. How Do you know that I was on your property? And you say, "Oh, look, I've got this shoe print." And I say, "Well, someone stole my shoe." So, you know, that's what the discovery process is for, is testing the sufficiency of the evidence to support the claims, but you don't presume the claims just based on a denial, right? Right. On the other hand, if you were to sue me, that says during our warm ups prior to recording opening arguments, Andrew, I could just tell he was kind of bitter and sarcastic when we were prepping the mics and talking about his dog barking in the background and clicks on his audio and that sort of thing. And that really made me mad. And I want a million dollars. Then I would be able to move to dismiss. Right. Because even if those facts.

0:45:26 Thomas: Yeah. Yeah. There's no point to, no one needs to hear the audio, which I have, by the way, But no one needs to hear the recordings because it doesn't matter anyway, even if it's all true, which

0:46:08 Andrew: Yeah. Yeah, right. Right, that's exactly right. And so you get out of.

0:46:21 Andrew: Yeah, you get out of discovery, uh, if the facts, if true, do not give rise to a cause of action to begin with, so

0:46:29 Thomas: It is. Right. I still am trying to craft the perfect lawsuit that allows us to go into discovery where I have to combine all the clips of the dog barking. Like, just for fun. Just for fun, for no other reason. I don't care. It just would be fun. Someday come up with a hypothetical case. Could we? All right.

0:46:44 Andrew: I think I think, uh, we

0:46:48 Thomas: Maybe listeners could.

0:46:49 Andrew: Could we could give Cecil from Cog Dis all the raw audio, tell him to put together a show and it would be nothing But Lily barking for like 11 hours it would be outstanding, um, um, so let's, we'll put that on the agenda. Um, my point on on that kind of digression is that, um, libel lawsuits are very very difficult to kick out on a motion to dismiss, right, because, uh, usually the allegations, uh, if true, uh, state a cause of action for for libel or spoken for slander. And what you're doing is you're disputing the way in which they arose, their context, whether the to whom the remarks were directed is a public figure, a limited use public figure or private figure. Right. You you all of those things may have facts that are associated with it.

0:46:56 Thomas: Because

0:47:42 Andrew: So, you know, you you have to go through discovery and discovery is is lengthy and expensive and and and really what, you knows, sort of drives up the price during your garden variety lawsuit. That's what we have here. And that's why this lawsuit sort of took a while to decide because, you know, we had to go through the entire discovery process in connection with, you know, somebody saying, somebody uttering a series, an opinion backed up by factual assertions on their blog. So, in other words, we have this sort of weird environment in which you are more free to just issue fact free on people.

0:48:29 Andrew: Right. Which is why I can say Texas Attorney General Ken Paxton is a moron. Right, I can save that over and over and over again if all I'm doing is uh just characterizing him as an idiot or a moron or you know somebody who couldn't possibly right but but as soon as I start, and I corrected myself there, right, as soon as I start to include something that that is an arguably factual component, then I open myself up to uh a potential libel lawsuit even though right my defense is going to be that this is true because if the question is, you know, did I say it, then, you know, I'm not going to be able to kick the case out on summary judgment. Now, mind you, I would welcome a libel lawsuit from Texas Attorney General Ken Paxton because I wouldn't even defend it myself. I would get a friend of mine. But I am happy if, you know, if you're a blogger who's being shut down by these sorts of obscure threats, give me a call.

0:49:17 Thomas: That guy's a moron, yeah that does happen from time to time, huh?

0:49:32 Andrew: And that's obviously the cause I strongly believe in

0:49:36 Thomas: So how does this factor into this case? So he was trying to point out, Novella was trying to point out, oh, this guy's a quack, and then he got sued, and then where did that leave us?

0:49:45 Andrew: Then novellas won at every level on summary judgment. Judgment, um, but uh, it, it, and so so the first part is you know

0:49:48 Thomas: And but but he didn't win? We talked about dismissing it. He didn't win by, that did he win by by backing up the facts? Okay.

0:49:54 Andrew: Right So he, wants so summary judgment is at the end of the day, after, after the close of discovery and all the evidence is in, that there are no disputed issues of material fact that can prove the opposite party's case, right? So in other words, he had to go through discovery, they had, they took the full depositions. They went through everything. And at the end of the day, there was not a legally cognizable claim for defamation.

0:50:27 Andrew: Where he was able to knock out the claims, and I think that this is also discussing and of interest to our listeners, are the commercial speech claims. And so this has some plausibility on its face. The allegedly grieved party here said, look, Skeptic's Guide to the Universe has advertising. I think they take patrons. They collect money for what they're doing. So this is not just a defamation claim. This is also a violation of what's called the Lanham Act, which prohibits false commercial advertising or promotion. And they say if you have commercial speech by somebody who is engaged in commerce for the purpose of influencing people to buy your goods and services, that the representations must be disseminated to constitute advertising.

0:50:27 Thomas: Right

0:51:25 Andrew: But but if you meet all those criteria, then you can sue for false advertising. Right. And so then the question was, did SGU did you know, did a podcast, did it blog? Did those things become commercial speech by virtue of the fact that ads run on them? Right. And the 11th Circuit, I think this is as clear a ruling on this issue as I've seen. It's part of it's the main part that I wanted to make sure we got to They said, look, the Supreme Court has given us a three part test for commercial speech. Right. One, that the speech is nothing but advertisements to that it contains a reference for a specific product. And three, that The Speaker has an economic motivation for distributing the material and that no one factor is despotic. But it's the combination of all of these where we come up with commercial speech.

0:52:13 Andrew: But importantly, what the 11th Circuit makes clear is the fact that a of opinion has advertising or is a for-profit business does not convert sort of otherwise core and political speech into commercial speech, right? Right. And so, and that's what they said. And look, and they drew the example. They drew the analogy to newspapers. Right. Like, look, newspapers exist to sell copies of newspapers. Right. But that doesn't mean when The New York Times runs a story that the content of that story should be scrutinized for under, you know, commercial advertising. Right, as if, as if it's a fraudulent advertisement. Right. Like the New York Times, what they're engaged in is the dissemination of non-commercial speech. Do they have a commercial purpose in doing so? Sure. Right. There are ads that run in the New Year's Times. They get money off subscription. So that applies to us.

0:53:08 Thomas: But like If they ran an ad that had some false claim or something like that, could they be liable for that as commercial speech? Okay.

0:53:13 Andrew: Right, that's exactly right. Yes. Yes.

0:53:17 Thomas: Gotcha. Even

0:53:17 Andrew: So that so the 11th Circuit says both advertising and subscriptions are typical features of newspapers, whether online or in print. And as the Supreme Court has explained, if a newspaper's profit motive were determinative, all aspects of its operation from the selection of news stories to the choice of editorial position would be subject to regulation. If it could be established that they were conducted with a view towards increased sales, such a basis for regulation clearly would be incompatible with the First Amendment. Right. So commercial speech gets less protection because it's less meritorious. This case makes it very, very clear that podcasts and blogs, people like us are engaged in non-commercial speech, even if we've got ads and even if We've got patrons.

0:53:57 Thomas: If we have ads or patrons or anything that you know that's that's

0:54:01 Andrew: So it's highly relevant information to to me. So that's part of why I wanted to do the show.

0:54:01 Thomas: Highly relevant information, actually I'm glad we're getting that in, yeah yeah oh I'm glad that that worked out for Steven Novella. And I think that informs anybody out there who's doing this kind of work, who's doing blogs, online, YouTube, whatever it is, that's relevant information. So that's cool. So it didn't really turn much, or did it? Just as a final quick question, did it turn much on the claims that the guy was making? Like, did they have to evaluate that, or did they, did they skip that part?

0:54:21 Andrew: Yeah

0:54:34 Thomas: I'm still not clear

0:54:34 Andrew: No they they did, I sort of elided over it because, um, you know, what, what we had were sort of garden variety characterizations, right? So, like, the, the characterization of this person is a quack, well, you know, that's an opinion, right? But as I, as I, uh, tried to explain in the breakdown down

0:54:37 Thomas: Okay oh but it would have mattered if it was corporate speech, is that what it is

0:54:54 Andrew: Right, right yeah and and the assertions of quackery were backed up by assertions of fact which were then tested, right? So, for example, the this guy's been disciplined, he runs a one-man shop, right, there was some dispute back and forth, uh, over, you know, does he run a one-man shop, and as it turned out, the guy, the guy didn't, uh, but it was sufficient, deficient, uh, on the basis of the of the research that that Steven Novella did to call him a one-man outfit, right, it was a, it was it was not right, because remember, when you libel a public figure, in this case a limited use public figure, uh, you have to show actual malice, right, you have to show, uh, that you either had knowing falsity yeah or you recklessly disregarded the fact, so, so for example, it's efficient right like, if, so if I have read, um, you know, Hillary Clinton gave birth to alien baby. Right. And I, and I say, and I believe it. Right? And I say, well, you know, as we know, Hilary Clinton, the mother of alien baby, it, I'm, I, that's not actionable as defamation

0:54:55 Thomas: Okay, okay okay, oh interesting oh that you like that he knew it and, but he purposefully was trying to right right right that

0:55:56 Andrew: Against Hilary Clinton, who, by the way, does not have an alien baby, I should, we should point that out, um, uh it it's not defamation because, um, I've, as long as I've done my homework, as long as I, uh, have not been reckless, right well look, like this is how you know, why, why is Hillary Clinton not suing, you know, Alex Jones and 500,000 purveyors of Pizzagate, because, uh, because the standard is really, really high. And, you know, and I have to say, never felt more strongly that I agree with the New York Times v. Sullivan Standard as having a president in office who is incredibly sensitive to any criticism by him of the press. So I am,

0:56:00 Thomas: We know of yeah quote unquote homework yeah yeah yeah no, that's how it works, yeah right it protects

0:56:40 Andrew: Yeah, I wish that, you know, we didn't have these idiotic allegations about Hillary Clinton going around that are, you know, just preposterous, uh, but I'm willing to accept that harm, uh, you know, to make sure that we don't have a president that can, you know, silence legitimate criticisms of himself.

0:56:40 Thomas: That ability to yeah yeah

0:56:59 Andrew: So yep

0:56:59 Thomas: Absolutely good point, good point. Well, uh, thanks for taking us through that, great points there. And, and, on that note, uh, we're going, going to find out the next question for the bar exam, but first, before we do that, we, of course, have to thank our all-time great patrons, our Hall of Famers, the ones that you can say are responsible for bringing this show to you, uh, every each and every week, twice a week actually, and they are

0:57:00 Andrew: Yep Kai McDougall, Roger Metcalf, Danny Rosari, Eli Bosnick, Dave Nichols of the Positively Doubtful podcast, Steve Sigman, Jim Grove, Desecrator, Patrick Fussell, Amanda Lipnack, LaBibliotecatrice, Heather Loveridge, Geeker41, Sean Pitti, Ian and Allie, Matthew Vernon, and Violet Page Hall. Thank you all so much.

0:57:51 Thomas: Of course, also Heath Enwright, thank you, Jeffrey Maynor, The Wayward Willis, Matthew Maxson on the case, Zena, Dave Lovely, Danny Baker at Combat Nonsense, TheNetTechHeathen, Charone Frankel, SquickThinger, Ian Ryan, Matthew Hillier, Aaron Graddy, YouAreHere, Aiden McCool, Brandon Smith, John Bodley, Esquire, Hunter Ashe, Kaylee Reiser, Jeff S., Sakashite Fukasumi, Thank you guys so much. Lots of names to get through, but you deserve the shout out. If you'd like a shout out similar to the ones that we just gave every week, each and every week on Friday, you can go to patreon.com/law and pledge $5 or more. That's how to be a Hall of Fame patron. Thank you so much to everyone we just read.

0:58:55 Clip: Oh, no associate of this firm has ever failed the bar exam. No kidding.

0:59:01 Thomas: All right, Andrew. Moment of truth as usual. Let's see. I'm on a roll. One in a row. One and a row here we go. All

0:59:09 Andrew: Well, you are seven out of 12. And if you go eight out of 13, that will push you back over passing score. So no, no, No Pressure.

0:59:18 Thomas: Right. That sounds like a lot of pressure to me, but okay.

0:59:19 Andrew: Oh. Oh. No, sorry, that's what I've been, a lot of pressure, so. All right Here we go. A man is sitting on a beach chair peacefully and in a relaxed, meditative state when a truck racing on the sand ran down a sunbathing elderly person. Okay, the man said out loud, "Oh God, look what that truck driver did. The man driving that truck was racing and going about a hundred miles an hour." Someone called 9-1-1. A woman who was sitting on the beach nearby, but facing the other way, heard the man's outcry. When the case comes to trial, will the court allow both the man and the woman to testify about the man?

0:59:23 Thomas: A lot of pressure, okay, yeah, are

1:00:03 Andrew: Yes, exactly. Right? So the Answers are: A, yes, because both the woman and the man can testify because it is an excited utterance exception to the hearsay rule that goes to the material issue of the case. B, yes, because this is not hearsay, and it is not being entered for the truth of the statement by either witness, so that they can both testify. C, no, neither of them can testify because the man was impaired due to being too relaxed from his meditation, that's not, now that this is not, my laughing is not an indication that this isn't incorrect answer, but that is funny, and the woman cannot repeat the utterances of an impaired witness. Pretty clever. D, no, neither can testify because the utterance is, do not fit any of the exceptions to the hearsay rule.

1:00:03 Thomas: Uh, again, another hearsay question, right? Uh-huh okay I Actually, uh, this is gonna be, I can't wait to be uh totally wrong about this, I feel like this is another freebie, and I'm leaning toward D. I don't think that this makes sense for the hearsay because the guy's not qualified, really, I, I mean, the only thing is, like, I could understand him testifying as to what he saw, but I believe that this is now, we're talking about testimony on what he uttered. So it wouldn't be like, oh, you know, I saw that, here's what happened, I saw it, blah, blah, like, that would be allowed, I think. But specifically, the question seems to be asking, can they both testify as to what he actually said? And that I don't really think matters. I don't think we would need to get two testimonies on like an utterance by a guy that saw the thing.

1:01:45 Thomas: So I don't know. Hopefully that made sense. I'm going to go with D. It just doesn't seem like valuable hearsay to me at all.

1:01:54 Andrew: OK. Well, we will find out the answer next Tuesday. Everyone keep your fingers crossed for Thomas. And if you would like to play along with Thomas Takes the Bar Exam, you can do so on Facebook and on Twitter. To do so, on Twitter, we tweet out from our account at OpenArgs when we release the show. Quote and retweet that introductory message and include with it your answer and any reasons therefor. You can include a snapshot as a picture. You can exclude a pithy saying. I think we've got a pretty good 50-50 mix of both. But play along, hashtag us at TTTBE, share your answers while you share the show.

1:02:38 Thomas: Absolutely. Same goes for Facebook. Use that share dot dot dot option on our original post, assuming you are liking the Opening Arguments podcast page, which you should if you haven't, and put your answer there, same sort of deal. I can't wait to find out that this was C. Next legal question will be if the answer does turn out to be C, do I have some recourse against my questioner who laughed while he was saying it and made me believe there was no chance that was the correct answer. So that'll be a legal question we'll have to answer later on.

1:03:08 Andrew: Yeah, good question. We'll add that to the list. Yeah, and Thomas, I am, I'm really excited. I just was on the latest episode of the Thinking Atheist radio podcast, which was, which aired on February 28th. So you can go to thethinkingatheist.com. And I was part of a panel, we were discussing Donald Trump and law and science and, you know, the kinds of stuff you're likely to hear on this show. But I've been a huge fan. I know you have as well. We've been a huge fan of Seth's show over at The Thinking Atheist for a long time, and I was really excited to be on that show.

1:03:13 Thomas: All right. Well, Absolutely, that is really exciting, I'm really glad you were able to do that, so check that out everyone.

1:03:50 Andrew: Yeah, and we'll give a link in the show notes.

1:03:52 Thomas: Well, that's it for today's show. Thank you so much, Andrew, as always, for bringing us highly relevant, highly interesting legal analysis, all three case, uh, all three cases, really interesting, uh, definitely stuff to think about in all of them, uh, and thanks of course to our listeners and our patrons who make the show happen over at patreon.com/law, and we will see you next week.

1:04:11 Andrew: Thank you very much.

1:04:19 Clip: This has been Opening Arguments with Andrew and Thomas. If you love the show and want to support future episodes, please visit our Patreon page at patreon.com/law. If you can't support us financially, it'd be a big help if you could leave us a five star review on iTunes, Stitcher, or whatever podcast delivery vehicle you use. And be sure to tell all your friends about us. For questions, suggestions, and complaints, email us at openarguments@gmail.com. The show notes and links are on our website at www.openargs.com. Be sure to like our page on Facebook and follow us on Twitter at OpenArgs. Until next time. This podcast is a production of Opening Arguments Media, LLC. All rights reserved.