OA65: How "Net Neutrality" Became "Selling the Internet" - A Choose-Your-Own Adventure, Part 2 (Plus Ann Coulter!)

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 65. I'm your host Thomas Smith. That over there is your host Andrew Torrez. How you doing, Andrew? I'm doing okay. Well, it's always out of time, unfortunately, because, you know, we're a week out now by the time people are hearing this. But it needs to be said that ReasonCon was really fun. And I said it on my show, and I'm going to say it again. If you guys get the opportunity to go to some sort of live podcast, like anything like that, where it's podcasters, you know, and like, or it's a community, you known, like just do it. It's, it's really fun. And, uh, we had a great time. My predictions were right. There was a throng of women just following Andrew at all times. And so how about you? Anything to say on that?

0:01:27 Andrew: I'm great, Thomas. How are you?

0:01:39 Andrew: Oh, yeah.

0:02:02 Andrew: No, it was fantastic. I know you and I both had a great time. And there are still like two or three people who have hit us up on Facebook who were like, well, I saw you, but, you know, there were a lot of people talking to you, and I was kind of nervous to come up and say hi. Like, please come up, and say, hi. I mean, one of the great things about doing the show is, uh, we we love, uh, getting a chance to meet you and, um, there is nothing better than having somebody come up and say, uh, I love listening to your show. I care.

Like, the greatest things are when people come up on our, like, you there was this news report that I was able to read and I knew to go to the underlying bill and I understood what that meant because of your show. And I was like, that's why we do the show. Right. Like that's that's the whole point is so you don't have to rely on, you know, what a reporter tells you, what the law says that like, you know. You have the tools to do that on your own. So it's it's unbelievable. We love meeting you. We had a great time at ReasonCon. Please come up and talk to us.

0:02:21 Thomas: Yeah. Yeah, absolutely.

0:03:09 Thomas: And with that said, let's get to some of the explaining of things and helping people understand laws that they previously wouldn't have understood and Alright Andrew, first segment of the day. Everybody wants to know about the fact that Trump is railing against the Ninth Circuit for them having just trashed his Sanctuary City's executive order. What's going on there? Are we going to find out today?

0:03:18 Clip: The law breaking down

0:03:40 Andrew: Well, wanted I to do this today, but as it turns out, we're going to devote an entire episode to this on Friday. And I am going to, for the first time ever, I'm going to assign homework to Opening Arguments listeners. So I'm I'm going to link the decision, which, by the way, I know you know this, but Donald but Trump apparently doesn't know this was a decision by the U.S. District Court for the Northern District of California, not a decision by the Ninth Circuit. It is fantastic reading. And all of our listeners should go read the case and And you will get a sneak preview of what we're going to talk about on Friday, but it will give you some ammunition. So I might I might start if you're going to prep those arguments that you are having with your Trump supporting family members, friends and enemies that are on your social media feeds.

0:04:33 Andrew: I might start with the question. Do you agree that Donald Trump and that his administration have the right to declare San Francisco a sanctuary city and withhold all funds, all federal funds from San Francisco? Because once you read the case, the answer might surprise you a little bit. So awesome

0:04:51 Thomas: I love it. The answer indeed will surprise you. Awesome stuff. I'm not going to do that homework because you're not my real dad, but I get it. Okay, everybody else who you are their real dad can do it. No, I'm just kidding. Do your homework everybody. Everybody. Good stuff. All right. Let's go to our main segment for the day. Right Andrew, I believe this is part two of our Choose Your Own Adventure segment that we were doing here. And I think it's time to choose the other adventure, right?

0:05:22 Andrew: So Um, last episode you boarded the FCC train, and while on board the FCC train, you learned all about net neutrality, uh, and how that was put into effect with the Open Internet Order of 2010, uh, that set forth, uh, three principles, the transparency principle, which ultimately passed and is still, uh, a a valid regulation today. It wasn't challenged. But the two critical prongs were the no blocking, right, that fixed broadband providers may not block lawful content, application services, or non-harmful devices, and no unreasonable discrimination in transmitting lawful network traffic. And taken together, those two things are at the core of the net neutrality movement, right? The idea that ISP providers shouldn't be able to discriminate against how information is transmitted over the internet, whether it is by Netflix or whether it is by Opening Arguments.

0:06:18 Andrew: And what you learned was that in the Court of Appeals for the D.C. Circuit, though they rejected six out of seven arguments made by Verizon, they accepted the last argument, right, Which was, that that these, the scope of this regulation requires the FCC to consider ISPs to be Title Two common carriers and not Title One information providers. And there's no harm in changing your mind, but because the FCC was classifying those, those ISPs as Title I and not Title II, the regulations went too far, exceeded the scope of delegated authority from the Congress. So we got to the end of that train, and now it's time to turn the page all the way back to page two in the book, because I thought you'd choose this train first. I actually wrote this part first. Um, and uh,

0:06:32 Thomas: Oh, yeah. There's one. Yeah. Well, just goes to show I'm unpredictable, right. When you think I'm going to get a bar question wrong, I get it right. And when you think I'm going get it, right, I got it wrong. That's usually usually how it goes.

0:07:15 Andrew: It is, well, you know, and even and When we play choose your own adventure, you actually got to choose, so uh, so I'm excited about that.

0:07:27 Thomas: We just established free will does exist. OK, let's go.

0:07:27 Andrew: Yes. Okay. So, Uh, your story continues with a callback to episodes 57 and 58, where we discuss the antitrust laws as applied to football, the USFL, and Donald Trump. And if, if you don't remember those episodes, haven't listened, they're good, a good episode. You should go back and listen. One of the players in that story against the USFL is the Federal Trade Commission, and they are also one of the good guys here in our story. The FTC's power begins with the FTC Act, which is 15 U.S.C. 45A.1, and it says that, quote, unfair methods of competition in or affecting commerce and unfair deceptive acts or practices, this is inter-affecting commerce, are hereby declared unlawful. So, broad grant of authority, right? And then subsection two says the FTC is hereby empowered and directed to prevent persons, partnerships, or corporations, dot, dot.

0:07:31 Thomas: Oh,

0:08:24 Andrew: And in that are some weird statutory exceptions like banks and savings and loan associations and other things from using unfair methods of competition, which we just defined inter-effecting commerce and unfair deceptive acts or practices inter-ffecting commerce, right. Right. So you can't engage in these these sort of broad behaviors and the FTC can go after you. Right. So as it turns out, that applies to the Internet. So this is not a net neutrality format, but this is a more consumer protection oriented format. And in fact, the F the FPC has brought more than 100 privacy and data security cases and more than 150 cases against spammers and spyware. Right. So pretty crucial in terms of when we think about government protecting consumers on the Internet from commercial predatory activities.

0:09:15 Andrew: Right. Under that same provision, the FTC has brought consumer protection actions against CompuServe, Prodigy, AOL and other ISPs dating back to the 1990s. Thomas, I know you had an AOL installation CD at some point.

0:09:30 Thomas: Yeah. Well, I still I still have stacks of them. They're going to come in handy. Yeah. At some some point.

0:09:32 Andrew: Yeah. Yeah, when, yeah. Post-apocalypse, yeah, those are going to be great. Yeah, so look, from the earliest stages of the Internet, the FTC has been out there aggressively actions against Internet service providers, large and small, for unfair or deceptive consumer acts or practices. And so one of the areas that they recently turned their attention to is the area of throttling. Don't know if you know this behavior. This is when an Internet service provider.

0:09:38 Thomas: Yeah.

0:10:06 Thomas: Comcast throttlling back Netflix, that kind of thing, that behavior, to dialing back the speed of things that they decide they want to. Is that what it means?

0:10:12 Andrew: Yeah. Exactly. Exactly right. And so the way in which the FCC fought throttling was via net neutrality. Right. The way inwhich the FTC has fought throtling is via consumer protection. So in 2015, the FTC Brought a complaint against TrackPhone. And country's largest prepaid mobile phone service provider. It's a holding company. They have about 25 million total subscribers for, you know, burner prepaid phones. Uh they Um They do business under a variety of names including Straight Talk Wireless, Net 10 Wireless, and Simple Mobile. I imagine that that's probably geographic, like I've heard of Straight Talk Wireless, I haven't heard of the others, I don't know If you Have

0:10:14 Thomas: Yeah.

0:10:27 Thomas: Interesting. Oh okay. I haven't heard of any of those but I don't do as much much drug dealing as you. So that could be why it's

0:10:57 Andrew: Yeah Okay Fair Enough Um their ads said you get unlimited talk, text, and data, sometimes described as "unlimited everything" thing for $45 prepaid per month. So according to the lawsuit brought by the FTC, TrackPhone broke the unlimited data promise it made to millions of consumers almost immediately by having secret internal limits where it substantially reduced the speed of their service to the customers if they went over those non-disclosed internal limits. They throttled down at least 60 percent, sometimes 90%, which meant you couldn't send basic emails, right? Because you have to send the confirmation packet at the end of the email. And so really rendered their data service almost entirely unusable. And of course, in some cases, they shut it off, right.

0:11:50 Thomas: Like when I was in Europe, it was pretty much that. Cause yeah. Anyway, does

0:11:51 Andrew: Yeah. Yes, exactly. So once people begin to approach those fixed data limits, internal, internal, non-disclosed limits. TrackPhone would send them a pre-recorded voicemail message that said, if your excessive data use continues, we may need to suspend or deactivate your data service or terminate your phone service altogether, as specified in the terms and conditions of service. But it was not.

0:12:13 Thomas: This sound like a man who's had all he could eat data wise? That doesn't sound like unlimited data.

0:12:19 Andrew: Yeah, and it turned out they were not actually disclosed in the Terms and Conditions of Service. Um, and even in the advertisements, there was no, you print, John Machida style, super fast talking, reading the disclaimers. They just said, you get unlimited everything. And then they were like, oh, well, by unlimited, we mean limited. It.

0:12:19 Thomas: Yeah.

0:12:35 Thomas: Not even close to unlimited.

0:12:41 Andrew: And so TrackPhone settled with the FTC. That settlement required them to clearly and conspicuously disclose any limits on the speed or quantity of its data service, to pay $40 million into a fund for consumers who had their internet service slowed down or shut off, and to change its advertising to disclose, you know, you get unlimited data up until where the limits kicked in. So good, good on the FTC. But the FDC didn't just go after TrackPhone. We said TrackPhone is the largest company that provides prepaid cellular service. They also went after a kind of larger player, AT&T. And, and, you Know, TrackPhone's big, AT & T is huge.

0:13:29 Andrew: They did not settle. With the FTC, uh, they litigated. So, um, but, but what AT&T was doing was almost exactly identical, right? In 2007, AT&P became the exclusive, uh. Service provider for the first iteration of the Apple iPhone and iPad. Um, I don't know if you remember that at the time AT&D began offering unlimited data plans. Um. And they did that for a couple of years, unlimited data fixed monthly monthly rate. In 2010, June of 2010, AT&T stopped offering the unlimited mobile data plans, grandfathered in anybody who was on the data plans but put everybody else on a certain amount of data per month, right?

0:14:09 Thomas: Okay. I've had Verizon and they did that same thing. Interesting, but okay.

0:14:12 Andrew: Yeah. They were trying to move all their legacy customers over to different plans that weren't unlimited. And in July 2011, AT&T decided to begin reducing the speed at which those unlimited, grandfathered-in data plan users received data on their smartphones. Under the throttling program, unlimited data plan customers were throttled for the remainder of a billing cycle once their data usage exceeded a certain internal non-disclosed threshold, right? So exactly like track phone. And then AT&t said that it was necessary to prevent harm over their network because there was just too much data, I don't know. I mean, I kind of envisioned like, no, no no, you can't have these many people run across this bridge or it will collapse, but I get the harm argument but it didn't matter because the evidence showed that AT&T's program was not tied at all, that the only decision to implement it was did the customer go over X amount, was was

0:14:57 Thomas: Oh yeah. It's not like, it's not not like the danger, there's no danger meter Like Uh, like at, like at Homer's, uh, I'm just doing all Simpsons references today, there's a, the, the server wasn't in meltdown or something, right?

0:15:12 Andrew: Right. Right. Yeah. Yeah, yeah, it didn't matter. They could have low traffic overall over their lines. But if you hit that pre existing data limit, they would start throttling your data.

0:15:30 Thomas: Gotcha.

0:15:30 Andrew: And the evidence at trial showed that AT&T did not regularly throttle its tiered plan customers, no matter how much data they used. Right. Because remember, in the tiered plan.

0:15:40 Thomas: Because They're Paying for it.

0:15:41 Andrew: Yeah, right. Exactly. So, you know, you would think if you've got the meltdown, we can't allow another packet of data to go over it. You know, I'm sorry, I know you want to pay us, but you can't send any more data. The evidence is pretty sure that was pretextual. The case was brought in the Northern District of California and AT&T lost. That's where all those facts that I just described you came from. And AT&t appealed to that famously liberal circuit, the Ninth Circuit.

0:15:41 Thomas: Yeah, Right. Oh,

0:16:13 Andrew: Now, I want to talk about the two causes of action that were raised by the FTC against AT&P. In count one, the FDC asserted that AT&T's imposition of data speed restrictions on customers with contracts, quote, "advertised as providing access to unlimited mobile data" and without terms, quote, "providing that AT&T may modify, diminish, or impair the service of customers who use more than a specified amount of data" is an unfair trade act or practice. And then in count two, the FTC asserted that the AT&T's failure to disclose that it imposes significant and material data speed restrictions on unlimited mobile Data Plan customers who used more than affixed amount of data in a given billing cycle is a deceptive act of practice, right?

So, pretty clear, uh, same conduct as track phone same, hey, you get unlimited everything, and by unlimited everything, we mean we're going to start limiting you, uh, seems to fall within the FTC, um, uh, so what happened in the Ninth Circuit, uh, and the answer is the Ninth Circuit just runs head-on into the train you steered from. Which is to say, I was slightly deceptive to you. The FTC Act, of which I read, that gives the FTC the power to prevent persons, partnerships or corporations, dot, dot dot, accepting savings and loan, blah, blah. Can you guess what I also omitted, what's also in that ellipsis?

0:17:43 Thomas: AT&T, just specifically there's an AT&T clause.

0:17:47 Andrew: There's an exception for common carriers. Common carriers may not be regulated by the FTC. So our delightfully well-meaning friends over at the FCC, we talked about Tim Wu, and the millions of Bernie bros whom we love, who marched in the streets for net neutrality, faced with a D.C. Circuit Court opinion that said, said, hey, look, the only way to get net neutrality is to change your classification and to call ISPs Title II common carriers. Well, all those people were like, I don't know, what the hell is a Title I title? Call them Title II Common Carriers, right? So the FCC changed the characterization from Title I to Title II. ISPs became common carriers while this case was pending. And the Ninth Circuit said, yeah, the FTC Act prohibits the FDC from regulating common carriers And AT&T Mobility is an ISP, an internet service provider.

0:17:54 Thomas: No, oh. This is incredible. But

0:18:46 Andrew: The FCC has just said they're a common carrier. So you no longer have any jurisdiction. And the consequence of that, yeah.

0:18:52 Thomas: Then, in theory, though, it's so, it sounds like either way now, I, I know, right now it sounds like, oh, we're screwed. Like we tried to do the one, didn't work, now and then kind of screwed over the other one. In theory, though, one of these things has to work. Like either it's common carrier or not. And if it is, then the FCC can regulate it. And then if it's not, then the FTC, was that what it was? Then the FPC can regulate It. Right.

0:19:12 Andrew: Yes. Yes, right. But the problem is, I want you to think about what time it is now. Now, this ruling comes out.

0:19:20 Thomas: It's a 1222 PM for everybody listening.

0:19:24 Andrew: This this ruling comes out in the middle of 2016. Right. All of a sudden, the FTC has no right. Remember, we went back to the stacks of AOL CDs. The FTC is the body that has a regulatory history of protecting privacy and consumer fairness over the Internet. The FCC has got nothing on that. And all of a sudden, a court has said FTC regs don't apply. They don't protect your privacy. FCC, you better come up with something. And they did. They came up with a 389 page document that was promulgated by the end of November of 2016. Really heroically. I mean, they got it done in a short period of time. But you might recall that something kind of important and catastrophic happened in early November of 2016.

0:19:36 Thomas: Yeah. Mm hmm. Now I don't remember. Oh

0:20:15 Andrew: And those are the FCC regulations that Senate Joint Resolution 34 uses the Congressional Review Act within 30 working days of Congress to express their disapproval of and overturn. Return. So the FCC rules never get put into effect because of Newt Gingrich's Congressional Review Act that we discussed in great length in episode 63. And now there's nothing, right? There are no promulgated internet privacy rules by a regulatory body with the administrative capacity to enforce them because of two very, very well-meaning liberal groups that cared about, uh, protecting your privacy on the internet.

0:20:36 Thomas: Man. And they like canceled each other out kind of ran it. Yeah, it was like, to a football player is going to tackle the other team, the other running back and they just ran into each other and then, and then the, and then the running back just kind of tiptoes into the, uh, just walks into the ends.

0:20:59 Andrew: They yeah they, that, that's where they happen and they hit they hit each other, that's right yes

0:21:14 Thomas: I'm like, oh, okay. Wow. Okay.

0:21:15 Andrew: This is the Darren Sproles theory of, uh, uh, no, that's exactly right. Uh, and so I I, I wanted to, I, I wanted to go through this because it's this sort of law of unintended consequences is, you know, something you see. You know, you don't see this every day.

0:21:33 Thomas: Wow. Well, who the hell could have foreseen all that? So I don't blame them. I mean, that's, that's

0:21:35 Andrew: Right. But but it does. You know, it's something. And, you know, we've cracked wise at our friends on the far left. I called him Bernie bros again today. Um, they have taken our abuse with some good nature to plumb, just like our handful of conservative listeners take our abuse with good nature to plump, um and that one libertarian party person yeah um yeah uh, but, but now, I mean, it it

0:21:37 Thomas: Geez. Yeah. Like Dan, Dan, the conservative man, our one, one that we know of. Yeah. Oh yeah. Okay. By the way, if you're a conservative, shoot us an email, you'll get referenced all the time as like our one conservative person. But anyway, God, yeah.

0:22:00 Andrew: Yeah right um but it, it illustrates a point that, uh, that you and I made politically throughout 2016, which is to say, um, before you want to call yourself a single issue voter, right, before you wanna say the only thing I care about is my senator's position on net neutrality, and I'm gonna vote you out in the primary unless you're pro net, make sure you, know a hundred percent, right, like, make sureyou've heard the opening arguments on it, make sureyouknowwhatthebillis

0:22:33 Thomas: Well, before you do anything, make sure you've heard opening arguments. Just yeah. Step one, Darren

0:22:35 Andrew: Because but but, you know, I mean, this is, I think, some of the some of the train wreck nature of this is because once the notion of net neutrality got out there, that became a rallying cry, became a political point. And, and so, as a result, you know, there was not a lot of deliberation back and forth. I could go into the history, but there was a very, very short period of time in which the FCC went from, we are not considering reclassifying ISPs as Title II, to we are considering recclassifying ISP as Title Two, to, we've just reclassified ISPs is Title Two. Um, and, and I think that short period of deliberation was driven on by the, you know, political climate, the pro net neutrality climate, which, again, we have said from the the very beginning, incredibly well-meaning.

0:23:27 Andrew: But, of the things is that laws often mean more than their soundbites. And and here was an unintended consequence of that. So, you know. So I I offer that up as, you knows, if you want to say my my principles are X and I'm always going to vote for, you Know, a pro-choice candidate over pro-life candidate. I get that. Right. But when you want to say your stance on this piece of legislation must be X, I would I would encourage you to have a little a little caution and a little humility with that, because you might be boarding a train that is headed for a collision. So there's our story.

0:24:06 Thomas: Sproul's might waltz into the end zone untouched. What, what a great, what A great story, Andrew. That that's, that's really cool. I mean, I mean, it's unfortunate, but complex. And thanks for breaking that down for us. Wow. There's your convoluted legal plot right there, movie makers. That's that's, like, a big short level plot right here that they'd have to pause in between and have, like a good-looking actress explain what's going on. That's like that level of plot detail.

0:24:09 Andrew: Exactly. And if you're a Ravens fan, you hate that.

0:24:37 Andrew: Oh, I have suggestions for the actress. There we

0:24:39 Thomas: Yeah. Let's do it, we need to get that on opening arguments. Okay, Patreon

0:24:42 Andrew: Go. Oh, new, new, new patron goal.

0:24:45 Thomas: Goal. Yeah, we'll do like the $5,000 level, we'll hire a model to explain some stuff, that that'll work.

0:24:45 Andrew: Yeah. Yeah. We will definitely do that. Don't don't think this is a binding contract between us and our patrons right now.

0:24:53 Thomas: Yeah. Oh. Man.

0:25:00 Andrew: I

0:25:01 Thomas: All right, thanks for breaking that down, really interesting stuff. Let's onward to the uh, to the rest of the show.

0:25:06 Clip: He who questions training, only trains himself at asking questions. What?

0:25:13 Thomas: Okay, Andrew, this is one that a lot of people have been asking about. I'll include, this could be a listener question. Listener Thomas S asks, now, you've got it labeled as Ann Coulter's lawsuit, but it's not her lawsuit, right? Isn't it a lawsuit filed on behalf of some Republican groups and stuff against Berkeley?

0:25:31 Andrew: Yeah, it is. It is a lawsuit filed on behalf of the Berkeley College Republicans and the Young Americans for Freedom, which is a delightful, insane right wing group. And look, by the way, like I'm a big fan of that. Right. Like college is where you should go to be exposed to crazy, insane ideas.

0:25:35 Thomas: Right. Mm-hmm.

0:25:46 Thomas: Of freedom? Yeah. Right.

0:25:51 Andrew: Is, um, you know, there will be the, you know, communist party on campus, and uh, the libertarian party, and the uh, objectivists who uh you know are gonna, yeah, really well and the objectivist, who are like those poser libertarians, and their insufficient commitment to the ideals of objectivism. Um, so, you know, yeah, like, at Young Americans for Freedom is, um, they're, they're, I guess they're the John Birch Society without the, like, chemtrails history, like, they're nuts, okay, yeah,

0:26:00 Thomas: They let the Libertarians on college campuses these days? Oh, man. When will it end?

0:26:20 Thomas: Yeah. Yeah. Well, in case anybody doesn't know, let me let me make sure I have this right. So Ann Coulter was going to speak. It's a it's a really convoluted thing because she was going to speak there were protests. Then she wasn't going to. She she she pulled out and then she came back and she was like, OK, I will speak. And then she pulledout again, just like yesterday by our time. So I think it had to do with like the sponsors for her talk, pulled her pulled their support because of the potential for danger. So she went back and forth like twice on this, which is really weird. And in the midst of all that, these groups filed a lawsuit against against Berkeley. And I guess we'll find out the details from Andrew here. Is this a sound lawsuit?

0:27:01 Andrew: Yeah, yeah, this lawsuit is delightfully mad, um, we are going to link it in the show notes, uh, it is, uh, it's hilarious, and, and as long time Opening Arguments listeners, uh, I encourage you to to, uh, open it up and listen and sort of, you know, spot the crazy just sort of by comparison. And notice, this is a good bookend in the A segment. We talked about Trinity Lutheran's petition and their briefs before the Supreme Court. I disagree with that position, but it's not laughable. Right. Like, and in fact, the whole idea was that, you know, their initial opening brief had had a pretty good surface level of plausibility to it.

0:27:47 Andrew: This one one of Our patrons commenting on the website said this reads more like a manifesto than a lawsuit, which I thought was a great way of describing. I think somebody else said, you know, was this lawsuit scrawled in, you know, crayon or bodily fluids? And it's you you you read it.

0:27:59 Thomas: That's awesome.

0:28:08 Andrew: And yes, the the rhetoric. Well, so some of the most ridiculous rhetoric is in the introduction. And and let me be fair to the law firm representing Berkeley College Republicans and YAF. You can take some liberties in the introduction.

0:28:08 Thomas: Well, I can't wait for this. Yeah.

0:28:25 Thomas: That's where he can squeeze them some like editorializing in a little bit, like just kind of take some, take some liberties on, on, gotcha.

0:28:25 Andrew: Yeah. Yeah. Yeah. Right. That being said, you rarely get something like paragraph two, which says defendants engage in a pattern and practice of enforcing a recently adopted, unwritten and unpublished policy that vests in university officials the unfettered discretion to unreasonably restrict the time, place and manner of any campus event involving high profile speakers. A term that is wholly undefined and that has enabled defendants to apply this policy in a discriminatory fashion, resulting in the marginalization of the expression of conservative viewpoints on campus by any notable conservative speaker. Don't know. This is the best part. So that was sentence one, which is nine lines long, which was good even for a lawyer. Right.

0:29:01 Thomas: Okay. Now you have to go and then read sentence two.

0:29:10 Andrew: Right. Yeah. And then the best one is sentence two. Defendants freely admit that they have permitted the demands of a faceless, rabid, off-campus mob to dictate what speech is permitted at the center of campus during primetime and which speech may be marginalized, burdened, and regulated out of its very existence by this unlawful heckler's veto. Um, you know, yeah, that that's.

0:29:31 Thomas: But this is what I don't get. I thought, I don'T think the school ever disinvited her, right?

0:29:40 Andrew: No, no. And the lawsuit doesn't claim that what the lawsuit noticed.

0:29:44 Thomas: Right. That's what, see, it would be one thing if the school was saying like, no, sorry, all right, we're never allowing you to speak. Get out, get off our campus. Then, okay. I mean, this would still be dramatic, but at least, at least it would, you know, it would have some basis of truth, but I don't know what, how they're making these claims.

0:30:01 Andrew: We'll go through, but It's amazing how they do so. So, yeah, no, the argument, and that's why I did read the first sentence, even though it wasn't quite as funny. The argument is not that high profile conservative speakers have been disinvited from Berkeley, have been deplatformed. The argument is when controversial speakers have been invited, Berkeley has taken the position that they need to have appropriate security measures to ensure that when Milo gets up and starts doing his usual shtick of making fun of actual students on campus, Right? Right. Like that time he outed a trans woman and made fun of her from the stage, that in the school's view, that was highly likely to lead to potential violence.

And so they wanted to have these kinds of speeches in a public setting and with sufficient security to make sure that people didn't get hurt. OK, that's it. That's all Berkeley has done. And this lawsuit alleges that that is a secret conspiracy designed to take only conservative speakers and put them at less desirable times and make them incur the most hilarious part of this is the is the allegation that the cost of security that the College Republicans would have to take on would be fifty eight hundred dollars and that that was, you know, oppressive.

0:30:02 Thomas: Okay. Right.

0:31:27 Andrew: And I'm sitting there going, you just paid these morons $20,000 to file this lawsuit, right? Like, look, like, yeah, look. If anybody out there wants to send opening arguments $5,800, we will gladly take it, right. I don't want to say, right, I don'T want to SAY $5800 isn't real money. It is. The Berkeley College Republicans, I am sure, have a speaker's budget that is probably in the six figures, right ? Like they they they can. Yeah. Look, it's a it's up. It's a large university and you have to pay honorary and speakers fees and fly people out there. And I am positive that they have sufficient funds to pay, you know, fifty eight hundred dollars in security costs.

0:32:12 Andrew: That's really all it is. Right. Right. So then the argument is the reason that they were moved to a different location is because there's this secret, unwritten discriminatory policy designed to single out conservative speakers. So we've, we've played around a little bit in the introduction and the facts, facts, uh, good. Opening Arguments listeners know that whenever you are looking at a lawsuit, the, yeah, the first thing you do is look to the actual causes of action, right? So Scroll down to page 22

0:32:43 Thomas: You know, you've also said, hold on. You've also, you said you look at who wrote it, right? Isn't that another thing you do? You look like, okay, who was hired to do this? Yeah. So you already already did that, I'm guessing.

0:32:44 Andrew: Yeah. Yes. Yes. You do. Yeah. We can we could do that yeah And I have, I have decided because this is a a uh a smaller segment, I have decided that we are not going to make fun of the uh the lawyers who are involved, but we could, um, and I invite, I invite our listeners to do the same, yeah, yeah.

0:32:57 Thomas: Right, right, right. All right. So we'll skip that part. Just remind everybody that we could. We're just, it's time restrictions.

0:33:12 Andrew: Uh, no, that's right. Like, what, what a lawyer does is they first look, they see who's the lawyer who sent this to me, and they Google that lawyer and, uh, and get a sense of the credentials and you know. And no, this is this is person, you know.

0:33:21 Thomas: Facebook, stack them. Check out their vacation photos.

0:33:25 Andrew: Yeah. No, but so, for example, you know, if you get a cease and desist letter in a copyright case, which I get all the time for for my clients. Right. Then I will look and I treat that very differently if it shows up from somebody who is an intellectual property lawyer at a big law firm with, you Know, major credentials or if it shows up from somebody and I go to their website and it's You know, yeah, and and and most of their cases are uh personal injury, slip and fall, auto accident cases, right? Like, and and you get both right, so yeah, no, absolutely, you do that, um, but

0:33:47 Thomas: Sure. Lionel Hutz. Yeah.

0:34:03 Thomas: All Right. So moving on though, because for lack of time, we'll have to get, skip that Part, which would have been great, I'm sure.

0:34:05 Andrew: Yeah. Right. Right. Which I invite all our listeners to do, um, go to page 22, so start at the first claim for relief, and that is, bottom of page 22, violation of the First Amendment right to freedom of expression, and then parenthesis, 42 U.S.C. 1983. I'm going to tell you, without getting into 1983 claims, that's the federal statute that allows you to sue anybody acting under color of law for violating your civil rights, including your constitutional rights. Okay, so that's that's the mech. In other words, the First Amendment doesn't give you the right to sue somebody.

0:34:10 Thomas: Yeah.

0:34:45 Thomas: Interesting.

0:34:45 Andrew: 1983 says if somebody acting under color of law in certain circumstances violates your constitutional rights, you can sue them. So it's that's that'S the vehicle to get in. But but the the claim, you would analyze the claim under First Amendment right to freedom of expression. Right. That's claim one. Claim to, First Amendment retaliation, which we will we'll discuss in a second. Claim three, violation of the 14th Amendment right to due process, and claim four. And this one, I'm going to, we're going to start with claim four, because I know, yeah, you can analyze three and four just based on Thomas takes the bar exam, claim for violation of of the 14th Amendment right to equal protection. So let's start off. Equal protection claim is that Berkeley treats college Republicans and YAF differently, differently from similarly situated students, student organizations and members of the public because they are conservative and because of their conservative beliefs. So why is that a

0:34:56 Thomas: Okay. All Well, Conservatives

0:35:44 Andrew: Facially stupid

0:35:44 Thomas: Are a protected class in this country so all

0:35:47 Andrew: It's Just, I mean, it's one of those, that's exactly right. I want to point out, Ann Coulter, the law firm you hired, wrote a a cause of action so ridiculous that a unemployed comedian was able to dismantle it in eight words there you go right

0:36:05 Thomas: Right. I get it. Now let's Keep going, keep going. Unemployed. Frumpy. Not dressed very well, uh, tired, just, you know, woke up late, just keep going Andrew, I get it.

0:36:07 Andrew: Right. I've got to I've got to play down your competence in order to play up how bad that is.

0:36:20 Thomas: Oh, I love it.

0:36:21 Andrew: No, but yeah, that's exactly right. So that that that's a nonsense argument. You know, what do you think of the what do You think of a due process argument?

0:36:28 Thomas: Well, what I, you just said due process. I don't know. What did they make a claim?

0:36:32 Andrew: Yeah, I'm going to read you the entirety. I'm gonna read you The entirety of their due process claim. OK, paragraph 111 is the incorporation paragraph. Paragraph 112, defendants, acting under color of state law and according to a pattern in practice, have enacted the unwritten and or unpublished high profile speaker policy, which is vague, overbroad, and improperly affords defendants absolute discretion in its application, and therefore deprives BCR, Berkeley College Republicans, and Yath of their clearly established due process rights guaranteed by the 14th Amendment to the United States Constitution. Paragraph 113, as a direct and proximate consequence of defendants' violations of BCR and YAF's federal civil rights, BCR niaf have suffered and will suffer a reputable injury that cannot be fully compensated by an award of monetary damages, therefore they're entitled to declaratory relief. You go, no, that's it, that's the sum and substance of that argument.

0:36:35 Thomas: Okay.

0:37:24 Thomas: Well I, I mean, first off, the first thing that came to my mind, which I'm not sure is where you're going is like, they, they talked about vagueness and how they're applying this thing. Didn't, didn't you read in the beginning, all they have to do is pay security costs and And then it's fine or something like there was like $5,800 and isn't how, how vague is that? That seems pretty specific to me. It's like, we'll just do this and you're fine.

0:37:40 Andrew: Yeah. Yeah. Right. That's a that's a good point, uh, but remember we want to we want but we remember, we want to kick this out on a motion to dismiss. We don't want to get to the facts.

0:37:46 Thomas: That's not the main, but I just latched onto that. Yeah. Oh, you're

0:37:52 Andrew: We want to say, even on the basis, right? Because the equal protection, we didn't get into the fact. We're like, yeah, right.

0:37:53 Thomas: Right. You're right, you know, I'm not going to do that. Oh yeah. We said, even if you're, right, I you're

0:38:02 Andrew: Even if you're right, yeah.

0:38:02 Thomas: Right. You're Right So We Don't Want

0:38:03 Andrew: Dismiss this.

0:38:03 Thomas: To Get To The Point Where We're Going Through Discovery And All That Crap I See So Dismissed So Due Process Well It Just Seem Is There Is There dismissal on the grounds that it's unintelligible is that a this doesn't this is unintelligible garbage

0:38:07 Andrew: Exactly. Yeah, it is. It is. No, no, no. Yes. Because to assert a due process violation, right, you have to say we have been, like, here's what happens in a, right!

0:38:22 Thomas: Yeah like what was violated without due process I don't even understand yeah is

0:38:30 Andrew: Exactly. What process did you get? What was taken away? You either have to have a liberty or a property interest and it has to have been taken away, and you had insufficient property rights to do so. I

0:38:40 Thomas: That are they thinking I'm just trying to get into what they're even trying to claim are they saying like your first amendment right was violated without due progress or something

0:38:49 Andrew: Think that's what they're saying, which would make this entire claim contingent upon either count one or two. Right.

0:38:51 Thomas: Okay upon the first amendment question okay okay

0:39:00 Andrew: But even then, they don't describe the process that was gone through. And right. Like the in other words, like you have to say. Right. Like so if I if if if I were to deprive you of a particular liberty. Right, right. Suppose suppose this actually did happen. Right? Right. Like the college Republicans are giving a speech. And I say, you know, due to the crowd unruliness, the college republicans are never allowed to speak on Berkeley's campus again. Right. Well, then you would have a due process argument. Right. You would say we have a liberty interest in speaking at the university.

0:39:07 Thomas: Hmm okay

0:39:39 Andrew: And that was taken away from us. And the reason given was because it caused the crowd to be unruly. But we did not have the appropriate process to challenge that determination. Right? Right. Like we didn't get a hearing. We didn't get a trial. We Didn't get anything right. Like they just unilaterally said. But here, they don't identify what the liberty or property interest is. I think it's bringing in Coulter to campus, but we're going to get to that when we talk about counts one and two. But even if they did, they don't describe. In no way do they analyze having described the process in the fact section. Right.

0:39:50 Thomas: OK, well, yeah.

0:40:16 Andrew: Because We Know

0:40:16 Thomas: And if they did, they would get to the point where Berkeley didn't even refuse her, you know, like they didn't even disinvite her. Right. I mean, that would inevitably come out as part of describing that process.

0:40:16 Andrew: Right Right And and and so if, as we go through the process, it seems like the process is the imposition of the requirement that the speech be moved to a different location and that campus security be paid for. Right. And I am pretty positive that that.

0:40:47 Thomas: Well, that sounds like a process.

0:40:48 Andrew: Yeah. Right. And and that that and that determination. Right. Can be vested sort of with the sound discretion of the school. Right. Like that's that's precisely the kind of thing that a court is going to be like. Yeah. Like the school gets to decide, you know, when it's going to require campus security to be at an event. And what are you talking about?

0:40:58 Thomas: Yeah.

0:41:09 Thomas: But is that something they would have to proceed to in order to do with that? Or would that be something you could get this dismissed on? Are you saying?

0:41:18 Andrew: Yeah, I'm saying that it does not. So your, your thought of "I want to dismiss this because it's unintelligible" is actually what I would like. Like, I would move to dismiss on the ground that they've failed to bleed with requisite specificity the required elements of the cause of action. Right. Like, they don't describe the liberty or property interest that's at stake, and they don't describe the procedures that were taken, and they don't give any analysis as to why those procedures were not the due procedure that was, you know, due to the individual involved. Fault. Right. This is just a claim, particularly in federal court. A claim has to put you as the defendant on notice of what it is that you're supposed to defend. Right? And if something.

0:42:01 Thomas: Sounds like they were just saying, like, bad things. Like, ah, due process. Also, they were quartering soldiers in our, you know, they're just like picking things from the Constitution that sound like they would be bad.

0:42:04 Andrew: Yeah.

0:42:13 Andrew: Right. So now let's let's move backwards to the second claim for relief, which is First First Amendment retaliation. And this is another one of these that just it's wrenched out of the context in which you bring First Amendment retaliation claims. Here's when you do. Right. You bring a First Amendment retaliation claim when I am at work. I have engaged in a constitutionally protected activity. Right like so I have a little I voted sticker and I have Hillary Clinton signs in my office. Right. And then my boss comes by and says, went out and voted for Hillary Clinton and, you know, gave a speech on it. That's it. We're firing you. Right? So you are being retaliated against.

0:43:01 Andrew: And again, this would have to be, I've said, I said, my cubicle, this has to be done under color of state law. Right, so private employer can do that. We've already talked about that. But if this is your job at the government, for example, or this is a public university like Berkeley, Berkeley cannot come by and say you voted for Hillary Clinton or you gave this constitutionally protected speech and therefore we're going to fire you. You would be able to bring a

0:43:11 Thomas: Oh, wait, a private company can fire you for who you vote for?

0:43:29 Andrew: Yeah. Yeah. I Look, a private company can pretty much fire you for anything Yeah.

0:43:32 Thomas: Oh, wow. They can fire me for anything? Yeah, okay.

0:43:35 Andrew: I mean that's Right.

0:43:35 Thomas: That's interesting. All right.

0:43:37 Andrew: That's that's the way to, and again, you know, it it's worth saying, don't take legal advice from a podcast, right? Like that it there are

0:43:41 Thomas: Yeah. All kinds of listeners are just firing employees right now. Oh, I can get rid of this Trump supporter.

0:43:44 Andrew: Yeah yeah please yeah Please, please, uh, please don't tak advice on that either way, right? Like all of those situations have have nuance, but but what I mean is that this particular cause of action, right, the First Amendment claim for retaliation under Section 1983 can only be brought against those who are acting under color of state law. Okay. And to act under color of state law, you either have to be, uh, an entity of the state or an instrumentality that is receiving state fund like like a public university and

0:43:58 Thomas: Okay well now I wonder is this something where they could sue just because Ann Coulter was denied? Because it seems like if somebody has standing it would be in Culture, not someone else, or are they able to say because, you know, they invited her, yeah

0:44:28 Andrew: No that's a that's a great question. The lawsuit obviously focuses on Ann Coulter and Milo Yiannopoulos, and but but as you know from our prior discussions on standing, BCR and YAF can't sue on behalf of Ann Coulter, right? Like Ann Coulter has to sue on behalf of Ann Coulter. So, so you've exactly anticipated what I was going to point out, which is here's how they have to plead this claim, because they are not the ones, if you think about it, they're not the ones who have engaged in the speech, right? If any retaliation has been done, it's retaliation against Coulter and Milo, right, not against, yeah, here's how they pleaded.

It'd be really interesting, uh BCR and its members have engaged in constitutionally protected speech, namely holding and expressing conservative viewpoints by inviting conservative speakers to speak on the UC Berkeley campus, including Milo Yiannopoulos, David Horowitz, and Ann Coulter, and then by treating BCR and its members differently, uh, defendants acting under color of state law have engaged in actions that retaliate against BCR and its members for holding and expressing disfavored views, and so retaliating, have engaged in a conduct that would chill a person of ordinary firmness from continuing to engage in the protected speech activity. So never mind that the second half of that is complete nonsense.

0:44:54 Thomas: All Right. Okay Okay.

0:45:58 Andrew: Again, we've talked about what retaliation means. It means we have fired you, we have deprived you of something to to which you have a right, which just didn't happen here, there's no way to characterize it. The first half of that is a really interesting assertion, and that is they're saying it is our form of free expression to invite these speakers to campus. And however clever that is, I would point out now, and this is why we work backwards from counts four to counts one. When you go to count one, which is violation of the First Amendment right to freedom of expression, they say defendants acting under color of state law and according to a pattern in practice have marginalized or banned the expression of conservative viewpoints on the UC Berkeley campus.

0:46:06 Thomas: Yeah.

0:46:54 Andrew: Well, in their own lawsuit, they've just pled that they express their conservative viewpoints by just inviting Ann Coulter to campus. Right. So it's a pretty amazing kind of own goal. And by the way, Berkeley, you can send me, I'll take a thank you letter for writing your motion to dismiss this lawsuit here in about 20 minutes on the air. You can send that to Opening Arguments care of Thomas Smith.

0:47:22 Andrew: But but yeah, so, you know, we should we should wrap it up. It's an amazing lawsuit. Berkeley will move to dismiss. Dismiss, it is it is possible that count one will survive just because if you find the right judge who says, I'm not going to throw everything out and we're going to let them. But but it's not counts two, three and four are are completely laughable. And I don't think count one is is is very good.

And that's why I pointed out kind of the own goal situation. It's hard to to get get rid of cases like this on a motion to dismiss for the reasons we have discussed many, many times on the show, right? That is, there is any sort of factual dispute, the judge is going to say, well, let's, you know, let'S go forward and find out what the facts are. But here, it's just pled in such a ridiculous way. And I mean, I'd even talk about the fact that reasonable time, place, and manner restrictions are, I mean, I could literally quote five pages of nothing but but Supreme Court citations that say it does not infringe upon your free speech to have reasonable restrictions on time, place and manner. Right. Now,

0:47:21 Thomas: Yeah, yeah, yeah. Yeah.

0:48:30 Andrew: Could you in a reply brief, could BCR come back and go whether the restrictions are reasonable is a fact question. And, you know, we deserve the right to go to discovery to say, you Know, that that's the argument I would make on the other side. So, you Now, yeah, and

0:48:45 Thomas: That still means by the way for anyone not clear, the lawsuit, the lawsuit is still bullshit. It's just whether or not you can crumple it up and throw it away or whether or you have to like prove a couple of things and then crumpled up and threw it away.

0:48:58 Andrew: Then crumple it up. That's exactly right. Yeah. No. And and and there are lots of ways as the defense lawyer here that you would restrict what happens if you move forward, knock out almost everything on on a motion on an early motion to dismiss. But the court allows a version of the free speech argument to go forward. I don't. Again, I don't I don't want to predict because predicting throwing out a fact intensive lawsuit on a motion to dismiss. Right. That is a that is that is a half court shot. Right? Like that's a that's all very low probability event. But it's very, very likely in this case. For the reasons that we said. So so there you go.

0:49:46 Andrew: Download. Take a look at the lawsuit. It's hilarious. You will enjoy it. I have not begun to read some of the hysterical crayon scrawlings. And and I am pretty sure, Thomas, that you're going to talk about this on serious inquiries only from the public policy standpoint, because, yeah, there's

0:49:54 Thomas: Yeah we'll see, I don't know, maybe I don't need to, maybe you killed it, it'll be

0:50:05 Andrew: All. Well, well, there's all sorts of I mean, the these champions of free speech, you know, and and and frequent critics of precious snowflakes demanding that not only they get the right to speak at Berkeley, but they speak in this one particular hall on this one particular weekend, or if not, they're going to take the ball and go home. You know, yep,

0:50:22 Thomas: Yeah, well that's the key I mean I mean just for for anyone who, lest anyone think we're like anti-free speech or something, that's not at all true. I think both of us are very, are pro-free speech. I think the biggest criticism with this stuff is people just play really loose with the facts. I mean, if it were true that that campuses were banning, uh, Ann Coulter, and we're saying no, we will not allow her to be heard here, now I would, I would have a different opinion. I think you should allow people to be hurt. But all they said was like, it's too dangerous on this day and time, we can't ensure campus safety, reschedule to this day in time. And then it's a disaster, like it's all of a sudden it's it's Lord of the Rings, like Mordor, like orcs are fighting, you know, humans, all this stuff, yeah talk

0:50:59 Andrew: It is not. It's a secret. It is a secret conspiracy to deny conservatives the right to speak. Yeah, no, look, yeah, I want to emphasize that.

0:51:13 Thomas: About being triggered by the way, talk about being triggered

0:51:14 Andrew: Right. Yeah. No, seriously. Seriously. And I want to point out, because you and I do part company from some of our friends and colleagues on the left, but we have both been a very strong voice for free speech and for the sort of virtually untrammeled view of the First Amendment. And I agree. Right. If if a public college or university said we're not going to allow a student group to bring in Ann Coulter, David Horowitz or Milo Yiannopoulos because those viewpoints are offensive, I would the ACLU would be out there with me, with you challenging that policy because that would violate the First Amendment. And absolutely, 100 percent, it would be wrong. Now, you know, I have said I think when you're talking about somebody who is a professional troll like Milo Yiannopoulos, you the reason not to invite him to your school.

0:51:16 Thomas: Yeah different story I would I would not put Ann Coulter in the same category as Milo. I mean, as bad as she is, I mean, Milo is horrible like it's it's it's, but anyway yeah, go ahead, sorry all

0:52:03 Andrew: Yeah, yeah, yeah. Yeah. Right. But again, right. Universities are where you should be exposed to diverse viewpoints. That's how we began the segment. That'S how I'd like to end the segment we are pro free speech, but this lawsuit is not is not about free speech. How about that?

0:52:25 Thomas: Right, there you get, there you have it, everybody. Breakdown. Okay, let's, it is time for our co-favorite, one of our co favorite days, new New Patron Tuesday, and we've got a lot of names to read. Thank you guys so much. Thank you to, uh, right off the bat, Joe Kleinwolterink. Okay, that's close enough. I don't know how to, how do you guys ensure that I always get the hard to pronounce ones? I swear we don't, we do no planning of who's going to read what, we just like kind of flip a coin and then I have the impossible ones, including a Mr. Mixle flick or whatever it was. Oh, Oh, that was so funny. Thank you, ElSeñorDelFuego, Matthew Kurtz, Matthew K Garling, Flawless Nirvana, James Turner, Kyle Reed.

0:53:10 Thomas: Thank you Robert, Mark Smith. Thank you to Mr Pudifoot, Jack H Levy, Tanner Baldus, David Groves, Zachary, and

0:53:21 Andrew: Yeah, thank you on a pledge, edit to Thomas McCormick. Thank you to Michael Cox. Special thank you to Holly Foley, to Joel Hubbard. Thank you, Christopher Rapin. Thank you, John Bartlett. Thanks to Malcolm Boyack. Thanks, lucia jennings, Chad Mizelle, last week's TTTBE winner. Thanks, Brent King, thank you on the pledge, added upwards to RJ Ratio. Thanks, Byron Gonzales, Heath Gemar, thank you to Stephanie, to Ben Hatcher, to VeganDanimal, and thank you Russell. Thank you all so much for your patron pledges, yeah.

0:53:59 Thomas: Absolutely. You guys are the best. And there's a Law'd Awful Movies probably out as we speak. I'm guessing there's a little bit of time travel we have to do here. But let's think about this. Yeah, a lot of movies should be out probably today, if not already.

0:54:13 Andrew: Lot awful movie six, Double Jeopardy, starring Ashley Judd. This has widely been considered the worst legal movie of all time, uh, we have we have some uh really strong candidates, so uh find out, listen to Law'd Awful Movies.

0:54:18 Thomas: So, oh, yeah, yeah.

0:54:30 Andrew: That's a that's a $2 patron perk, and out if it truly is the worst. And we always have a lot of fun with those.

0:54:37 Thomas: Absolutely. So I hope you enjoy that. All

0:54:39 Clip: Oh, no associate of this firm has ever failed the bar exam. No kidding.

0:54:45 Thomas: Right, now it is time for my co-least favorite time of the week, and that is uh TTTBE, and the answer to the previous question. So currently, let's see, I'm 11 for 20, is that right? So we get to find out, uh, if I drop down to 11 for 21, if I'm gonna go 12 for 21, oh.

0:55:03 Andrew: Yeah, this was a Thomas and our guest Phil Ferguson takes the bar exam.

0:55:08 Thomas: That's right I get to find out if I, oh, oh man, this was a tough one, okay. Let's say

0:55:08 Andrew: Yeah. Yes. And So this was pre-Obergefell question that said, let's assume a state guaranteed the right of same-sex marriage and then subsequently decided to repeal it. What would be the result of a lawsuit to declare that ballot initiative to repeel it void and reinstate the right of same-sex couples to marry? And your options? Yeah, it is. It is. And I can tell you, having looked at the answer, the instructions I gave you, the pre-Obergefell instructions are correct. So neither of you were were thrown off by that. So, right.

0:55:13 Thomas: Yeah very tricky oh okay yeah

0:55:51 Andrew: So the Proposed answers were A, yes, under the due process clause, no compelling state interest justifies denying same sex couples the fundamental right to marry. B, yes, because under the Fourth Amendment, it would be an illegal interference against the right to privacy guaranteed to everyone. See, no, because the people voted to take a provision out of the existing constitution, and when that is done by public vote, it cannot be altered, or D, no, because the ballot proposition was properly placed on the ballot and all statutory procedures were followed, thus precluding the courts from taking adverse action. So, uh, I, we can start ruling some stuff out, uh, Thomas.

0:55:51 Thomas: Yeah.

0:56:31 Thomas: Anything

0:56:31 Andrew: You guessed You Guessed D, uh, and Phil guessed A, uh, so B. Right.

0:56:31 Thomas: I guess. Yeah. Rule those out.

0:56:38 Andrew: So B, for example, we can rule out, uh, because, uh, if, if it were a post aubergefell decision, right, a state is not going to be able to deprive.

0:56:49 Thomas: Yeah, they wouldn't be able to do it in the first place, right? That was what I was thinking.

0:56:50 Andrew: Right. Right. Right. Exactly. Right. So B. So be kind of makes sense if you think about what this. But it's just wrong. C is that is done by a public vote, it cannot be altered. And that's just nonsense. And I don't think anybody even guessed that. And certainly not you and Phil. So now we're down to D and A.

0:56:53 Thomas: Okay.

0:57:10 Thomas: Oh, great.

0:57:11 Andrew: Right. The two answers. And yeah,

0:57:12 Thomas: I was hoping we both got it wrong.

0:57:14 Andrew: No. And I'm sad to tell you that that Phil got it right with A and you got it wrong. The 14th Amendment guarantees due process of law before the government can deprive an individual of life, liberty or property. We talked about that actually a little bit in talking about in Coulter's case. And so when you already have a liberty interest, then you it's not enough to just say we democratically decided to take that away when you single out a disfavored group and you take away a liberty interests that the courts have been very clear is among the core rights in the concept of ordered liberty, which is the right to get married.

0:57:53 Thomas: Wait, how are you saying that? Oh, just the marriage in general. Oh. I was going to say, they just got the right to marry in this example, Example, uh, gay people, and then you're, then you said the courts have established this is a Right, I don't, I but I guess you're saying Marriage in general is a rite

0:57:54 Andrew: Right. Right. Yeah. Right, yeah. Marriage in general is one of those rights. Yep. Right yep. Yeah, marriage in General, is one of The fundamental rights and so you have it, you have acted under the authority of the state and the guarantees of the State, right, if you're, if you were a same-sex couple in this example, in going forth and get married and going to get get married. And it's not enough to take that away from you to just say, you know, 50.1 percent of our population doesn't like you anymore. So too bad. Right. So in other words, it's it's the, I like this question, I'm sorry you got it wrong because it shows the distinction between when you sort of place something up on the ballot, right, versus a right that people already have, haven't an expectation that they already have under the

0:58:11 Thomas: Okay. Well

0:58:54 Andrew: Law.

0:58:54 Thomas: My Where I struggled with this one, Andrew, was I was remembering Prop, Prop 8, and I didn't remember that it was just instantly struck down. And it was, in fact, as I do a little Googling here, it was upheld initially by the California Supreme Court. My intuition would be, if this is a bar exam question that even Phil Ferguson can get right, that any lawyer would have just said, no, I saw on the bar exam, this has to be struck down. But apparently it takes, apparently the California Supreme Court didn't pass the bar bar exam, but, uh, but other, but the ninth circuit.

0:59:26 Thomas: Yeah. So the ninth circuit did pass the bar.

0:59:25 Andrew: The federal courts yeah a US a US District Court in the

0:59:29 Thomas: Yeah, that's very interesting.

0:59:29 Andrew: Northern District California and then the

0:59:31 Thomas: So I kind of misremembered how prop eight went. Uh, I, I suppose because it seems like I'm thinking about it. This is essentially prop eight, the bar exam question. So, Hmm. So very interesting, uh yeah, well this just Just goes to show that anybody can come on here and do better than I can on the bar. So that was the lesson we've learned here. Just any, any, per any schmuck can come.

0:59:31 Andrew: Ninth Circuit yeah thank you phil ferguson for appearing on the opening arguments program uh thomas will will insult you uh at any time yeah

0:59:53 Thomas: Yeah. Yeah. Yeah. So Andrew and this is actually a current Andrew because you know circumstances are the but current Andrew although Is this future Andrew there because I would like to ask some stuff about no, it's just

0:59:59 Andrew: Yeah future andrew is giving me some stock tips right now so

1:00:11 Thomas: Okay, so he's busy. Okay. Well, I'll settle for current Andrew. Who is our winner for this week's ttgb?

1:00:13 Andrew: Yeah Uh, today's winner is Colin Frazier on Twitter, that is at Colin, C-O-L-I-N-F-R-A-S-E-R, so uh hit him up, give him a follow and a shout out, who says, TTTBE, if A is wrong, I don't want to be right. And I like

1:00:37 Thomas: I Should have said that why didn't I say that?

1:00:40 Andrew: That. A lot of folks wanted, you know, we're sort of split this week. I think like you, we had a lot of people who drew the comparisons between the debacle over California's Prop 8 and this question. Question uh We had a lot of people get it wrong, and we had a lot ppl take the pesimistic route of, uh, assuming that the law was just the law, and we'd like it to be otherwise, but, as it turns out, this is an example where, uh, the law and, uh, and what we would like to have happen, uh, overlapped rather nicely.

1:01:12 Andrew: So uh, hopefully this is going to restore yeah it's

1:01:12 Thomas: Yeah This one really got me. I this one really. Got me. Sorry everybody. I feel like I'm fantastic you, but a lot of people got it wrong. You say I'm not the only one.

1:01:19 Andrew: A tough one it look we we have had, we've had a fair amount of discussion, as, as, uh, as you know, and as I think everyone listening to the show should know, uh, we released the early answer to TTTBE to our patrons, uh, and there is, yeah, at Patreon.com/law, and, uh, and there is, when we do that, it's post and people comment on it, and you and I will, uh, chime back. Back in.

1:01:34 Thomas: Patreon.com slash law.

1:01:44 Thomas: Yeah. Half the time there's a riot that breaks out. Like when we post, they're like, no, I don't believe it. Seriously. It's there's, a lot OF people are like, I don't, this is not right. I don'T accept. They go through all the five stages actually. Like, well, okay. Maybe if the, and then by the end, they' re like, ah, Thomas and I are failing the bar.

1:01:50 Andrew: Yeah. All right.

1:02:03 Thomas: Oh,

1:02:04 Andrew: But yeah, no. So if you if you'd like to participate in those discussions, you can you can get on when we release the answers early. And and there's it's not just a one sided communication. We often kind of chat back and forth. It's a lot of fun. All

1:02:18 Thomas: Absolutely. Well, congratulations to this week's winner, who this time I'm here to congratulate instead of future Andrew. So I'll take that opportunity. Good job. Well, that does it for our show today. Thanks so much, Andrew. Thank you so much listeners for being so great and patrons, especially hope you enjoy that Law'd Awful Movies and keep out, keep, keep being out there reading legal documents with With a renewed passion and zeal, as you find, you can kind of navigate your way around them, thanks to one Andrew Torrez. So, thanks for that, and we'll see you next time.

1:02:58 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.