OA71: Free Speech Left and Right (featuring the Grand Canyon)

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 episode number 71. I'm your host Thomas Smith. That over there is Andrew Torrez. How are you doing, Andrew?

0:01:25 Andrew: Fantastic, Thomas. How are you?

0:01:27 Thomas: I'm doing great. I feel so much more informed because last Friday's Opening Argument was so current and relevant and we all benefited

0:01:35 Andrew: I agree. I agree. Yeah, no, I agree. I really think that the new format is going to work well. And again, you know, that is just you being willing to take on the burden of of recording an episode and editing and getting it all out in the same day. It's more work for you. It's a little bit more work for me.

0:01:55 Thomas: Hey, it's more work for you. I was going to say, yeah, it is not like it is no work for you. You got to bone up on whatever relevant case law there is for whatever crime Trump committed that day. I mean, it has more work to do. It has more to do with both of us. But we are not complaining. I think it is great. I think that is such a positive thing. And I can't wait to see just how much it makes our show even more relevant for people. That is my hope. So coming off of that positivity here, let's talk about the coming weeks here. Uh, we have a debate kind of discussion, debate thingy recorded with Travis Wester, uh, somebody we came across on Twitter, I think through Ina or Eli, one or the other, they both know him. Uh, and, uh. We debated the Ann Coulter Young America's Foundation, uh lawsuit because he has a different view on that. And we sort of, when I say we, I mean, Andrew and Travis kind of debated along those lines. Uh, that's coming up.

So, a bit of a free speech theme to the coming weeks here. This episode, we're going to be talking about a number of free speech issues, and we can kind of look at the difference between left and right on that.

I know that's something people, if they heard me on Seth Andrews' show, The Thinking Atheist, this past week, they might have heard me comment on that, and of course on my own show, Serious Inquiries Only, I talk a lot about free speech issue and how they're overblown oftentimes,

0:02:05 Andrew: Oh, gosh. Yeah, mine too.

0:03:16 Thomas: In my opinion, and sometimes they're not. Sometimes there's legitimate issues and kind of parsing out the differences there. So

0:03:23 Andrew: And I want to specifically give a plug for Serious Inquiries Only episode number 41, which I'm going to link in the show notes, which is where, Thomas, you had really a great conversation, I thought, with Michael Schirmer, somebody who is well-known in our community in skeptic circles. He's the editor-in-chief of Skeptic Magazine, a well-know libertarian and skeptic. And he had tweeted out a bunch of stuff that sort of repeated the kind of emerging right-wing talking point that says, you know, it is conservatives who are the defenders of the First Amendment and it is liberals who are, uh, the forces of oppression and censorship, and, um, you, the facts don't match that at all, uh, and I think, uh, I think he just, you had a tremendous discussion with him, and I thought it made sense, given some of our questions, to sort of bring that larger discussion, uh, over here to opening arguments and talk about the actual legal ramifications of some of these cases, I

0:04:24 Thomas: Excellent. Thanks very much for that plug. I appreciate it. So with that said, let's get over to our First Listener Question for the day.

0:04:30 Clip: He who questions training, only trains himself at asking questions. What?

0:04:38 Thomas: And, you know, it's so sad because it's not a yodeling segment, but that's okay. We've had, we're yodeled out for now. Now, I mean, it's kind of, it seems like a contradiction to say, you know, you could ever have enough yodeling. I mean, it is the peak of musical composition for a reason. I mean, the absolute pinnacle of musical expression is yodelling. But disregarding all that, a non-yodeling segment, a journalist was arrested for asking a question of HHS Secretary Tom Price. Christ. Now, I saw this. I hope that I trust Andrew has gotten to the bottom of this, because I definitely don't want to be perpetuating any fake news or anything, like I accused the other side of this of doing. So what's happening here, Andrew? Is this a serious threat to free speech? Is this a fake news story? Has this been misconstrued? What do you think?

0:04:42 Andrew: Think we had enough yodeling for it yeah Let's clarify the situation, uh, this is not fake news, um, this is journalist, uh, Dan Heyman, um, not not to be confused with the Sports Center guy, um, who was arrested while attempting to ask Health and Human Services, uh, Secretary Tom Price a question. We're going to get into the content in a minute. An arrest is not the same as a conviction, right? So the fact that you are arrested for something means that he was fingerprinted. He he was led led away from the Capitol in handcuffs. He was booked, processed at a jail and required to change into an orange jumpsuit, right? So, I mean, this is, you know, that first step of law and order, right.

0:06:19 Andrew: That's a pretty significant infringement on your liberty. But obviously there's a huge, in in in many of these cases, um, the state can decide that they're going to drop the charges, that they are not going to prosecute, uh, they had enough for an arrest but, um, but they're not going go forward, uh, and uh, in any other year I would say there's no way that that they're going to go forward with this, um, but that's what I would have said. We talked about this a couple of episodes ago about the case involving Desiree Fox of Code Pink, who was not only arrested for disrupting Attorney General Jeff Sessions' confirmation hearings by laughing at Sessions' laughable claims to be, you know, to not be a racist, but she was prosecuted, found guilty and convicted. And so, you know, that that.

0:05:56 Thomas: Okay. Yeah. Yeah, sure.

0:07:09 Thomas: Already convicted? Because last I looked at it, I thought it was still pending, is

0:07:09 Andrew: Yeah. Yeah, no, she has been convicted of two counts disorderly conduct and parading and demonstrating on Capitol grounds. And she is due to be sentenced on June 21st. So there's... there's a significant delay. Her attorneys are obviously going to file appellate briefs that are challenging the conviction, uh, but yeah she is she is she will be held, uh, in jail because she's been convicted, right, like this is the same think about our call back to the Aaron Hernandez case, right, like you can say uh, I believe that, you know, I'm innocent and I'm filing, you know, post trial motions to overturn the conviction, but until that happens you you've got to serve your sentence, um so

0:07:36 Thomas: She in jail during that time she's not, yeah yeah right is this a good chance to clarify, because I brought this up on my show, and I did get a few people, and and this is good because there are people who are like, hey, I want to making sure we've got the facts straight here, I totally encourage that, they they thought it was a bit of a misrepresentation potentially to say she was arrested for laughing, because she started making a scene, I think, after she was approached by authorities. But what do you say to that kind of thing? What's your response to that?

0:07:58 Andrew: Yeah I look I I think that's right, and it, that overlaps with, uh, the Heyman case, right. Right. Which is to say, Heyman was not at a press briefing. He was, you know, sort of shouting at at Secretary Price while he was en route from the Capitol to another meeting. So, you know, yeah. Do you want to say there are conditions surrounding this that are different from the norm? Right. Like this is not just, you know, chuckle under one's breath in the gallery at the hearing. This is, you know, Code Pink, we know what Code Pink is, right? Like they are an activist group that protests. And there certainly was an effort to, you know, to be disruptive. But, you know, that line is part of what protesting is all about, right.

0:09:13 Andrew: Like, if you are, you know, quietly in the Fox case, if you are in a sort of quietly sniggering to yourself, that's not the same as actually bringing it to our attention that, you you know, we have a racist who is being interrogated and who's saying, "I am not a racist," right? Like, that deserves to be made public. That deserves to being mocked. So, yeah, like, we, right. Right.

The way in which I would respond to that criticism is to say it is correct that we are not yet at the point where journalists at ordinary press briefings are being hauled out of those proceedings, thrown in leg irons and handcuffs and being arrested just for asking critical questions. But we're a hell of a lot closer to that point than at any point in recent memory, in my knowledge of American history, than we've ever been, which is to say using collateral circumstances in cases that, in my view, cover core areas. I mean, like there is just no argument that the First Amendment was meant to protect journalists asking questions of our elected officials, as in the Heyman case, or individuals engaging in protest of the public policy conduct of, again, elected and appointed officials, As in the Fox case. I thought it was a good contrast here because, you know, every case that we talk about and, you Know, we're going to have our discussion with Travis Wester and we're gonna clear up some misconceptions. But are things like Ann Coulter, you know, complaining about how the University of Berkeley handled,

0:10:52 Andrew: You know, asking her to be in a different room, for security for her speech on a college campus and, you know, even if you want to credit those allegations, which, you know, we're going to show and simple reading of the complaint shows that, the facts alleged by BCR and And why if themselves, you know, don't don't match up, don'T don't meet those allegations. But even if you if you credit that in the in the most extreme cases, we're balancing out, you the conduct of 19 year olds on college campuses, versus throwing people in jail, which is what the rights war on free speech is doing right now. We we go after fake news on the left a lot. We're not given to a lot of hyperbole. But to me, this is so one sided that, you know, you have a concerted effort by conservatives to shut down core political free speech. And the fact that that's not being talked about is it's a travesty in my.

0:11:29 Thomas: Yeah.

0:11:46 Thomas: Interesting. I think I might have diverted you before you went into the full details of the journalist example. Did you want to go back to that, or no?

0:11:54 Andrew: Sure, so sure, what did Heyman do? As we point out, right, this is not kind of the paradigmatic press conference, he was following after an appointed official, HHS Secretary Tom Price, and shouting questions at him, and those questions were related to the AHCA and violence. Right. So before the Affordable Care Act, had the situation where it was possible that some of the violence that had been suffered by those women might be considered a preexisting condition. Right. And we have talked about, we've urged caution on, you know, not going overboard with Occupy Democrats memes about, you know, HCA makes rape a pre existing condition. But but nevertheless, there's a valid question to be asked, right, which is to say,

0:12:44 Thomas: It's certainly a question to to ask, yeah, like, art group is this going to happen, do you think, and and is there, could you protect us from it somehow?

0:12:44 Andrew: Yeah, well, yeah. Right.

0:12:51 Thomas: So yeah, certainly right

0:12:51 Andrew: Is there anything right? So, so, for example, the answer to the question, is there anything in the HCA that specifically protects women who are long term, you traditional, what used to be called battered women, victims of long-term physical spousal abuse, is there anything in the AHCA that protects them? The answer to that, to the best of my knowledge, is no. No, there isn't. And people need to know that.

0:13:13 Thomas: That well there is, until until a state asks for a waiver, and then it's like, okay, because you asked us, we'll give you a waiver on that, so it's it's well

0:13:19 Andrew: Right. Well, and there's no provision that specifically protects battered women as recognizing that that is sort of a crucial case where you might have, yeah,

0:13:31 Thomas: We can get into the the technical, yeah, yeah. It doesn't, it doesn't specifically protect them, but, but it, they can say that it protects people with any preexisting conditions until the states decide they don't want that. And it gives states the power to say, we don't like this. And then they don't have it anymore. So it's, so it's yeah.

0:13:33 Andrew: Fair enough. That's good.

0:13:45 Andrew: Right. And even and even under

0:13:47 Thomas: Good.

0:13:47 Andrew: Those. Right, you know, it is states are free without the waiver to put you into high risk pools. Right? So, you know, exactly.

0:13:53 Thomas: Right. And, and increase your costs more. So even though it's limited, the limit is, is way higher than Obamacare. So you, so yeah, Yeah, it's short answers. HCA is terrible. It sucks. And and this journalist was trying to to highlight that and was arrested. So so specifically, you mentioned the charges. I mean, is this the kind of thing where because I'm really trying to be fair in my mind, if we're looking at this in terms of how its effect on free speech? I mean, is this the kind of thing where yes, it's technically considered can be considered a crime like it technically is a crime But this just normally isn't done. I mean normally you don't I

0:14:00 Andrew: Right. Yeah. Yeah.

0:14:31 Andrew: No, that's That's exactly right. So Heyman was accused of willful disruption of governmental processes, right, which is a misdemeanor offense, okay? So it is on the same order as being charged with criminal jaywalking, right? Like, you know, you could imagine, right, as the president is walking, or you know, there's some jaywalking that goes on as you, you know, run across, uh, you know, the the Pennsylvania Avenue, uh, the police would never well, I was going to say, prior to this administration, the police would never arrest a journalist for jaywalking, for tailing after the president or a potential witness and asking them questions. And that's what you have here, right? It really is, you know, right.

0:14:55 Thomas: See I see Okay, so to people saying Like, oh, but that he broke the law. This isn't really a threat to free speech because they're just enforcing the law. You would say, well, it's like if you arrest the people you want for jaywalking when everybody does it or something like that, that has a chilling effect.

0:15:29 Andrew: And I want To jump in and say there is particular conduct here because, right, the police have to conduct an investigation and they talk to the victim. And so in this case, DC Capitol Police talked to Secretary Price, uh, and, uh, Secretary Price, uh, endorsed, uh, the arrest, uh, commended the police For their activities, said, yeah, hey, man, this wasn't part of a press conference, he was just, uh, you know, harassing me. Um, and a couple of days later, um, Price went on, uh, went on to a radio show and was asked the question. And now we want to cover both sides of that.

He was asked, do you think Heyman was menacing, right? Was he threatening to you? And he said, no, no, he wasn't. But he did say he thought that the police did, quote, a stellar job, you Know, in arresting him. So, you know, again, this is more, what we're seeing here is, in my view, the disturbing pattern is not just, you, is there, you know, an overzealous rookie cop who's like, oh, I'm gonna get that guy for jaywalking, or, you know, harassing a public official? No, but but the question is, how was that met by the administration?

And I do not believe, and I'm not going to use, I'm going to, happened to, uh, Dick Cheney, right, the most evil person in George W. Bush's administration, that Dick Chaney would have, you know, growled in his little penguin voice of, yeah, you know, right, like, that guy, good job, uh, you know, lock that guy up for asking me a question, I, it, I don't think so. I think this is, this is conduct that's outside the norm, and it is, uh, it is conduct that is being, being reinforced,

0:15:49 Thomas: Jeez. Yeah.

0:17:12 Andrew: Know, at the very top of the administration that, you know, I mean, Donald Trump, we have documented numerous times his statements about, you Know, desiring to relax the defamation rules, the New York Times versus Sullivan standard. And, you Now, we just have a president who has no regard, as far as I can tell, for the important function that a free press serves in a free society. And I think that's categorically different than other Republican presidents, than other Democratic presidents, and other presidents of any kind.

0:17:40 Thomas: Yeah, you've got as much as we all have feelings about George W. Bush. I mean, he has been pretty consistent saying, no, you need a press. I'm glad the press was challenging me, and I hope they can continue to challenge whoever's in power. So it does seem pretty unprecedented to me. Again, title of somebody's got to write a book, a memoir, unprecedented. I did an episode called that, but that really, for Trump's presidency, unprecedented is going to summarize all of it. But anyway, thanks for answering that. I think that gives us a good picture there. I certainly feel like I understand it a little more. Like, yes, technically, sure, this stuff is against the letter of the law, but it's the way you're enforcing it against people selectively that really could have a chilling effect. Effect. All right, let's go to our main segment of the day.

0:18:44 Thomas: So Andrew, we're going talk about... Yeah, this is something you referenced last week, actually. You kind of gave us a little teaser about the Grand Canyon and how it definitively proves the flood story. Is that right? It totally... Yeah.

0:18:45 Andrew: Yeah.

0:18:56 Andrew: Yeah, it shows through reasons that I did a lot of research on this, and I am still unable to parse the argument of how 40 days of rain carved hundreds Hundreds of, yeah, yeah.

0:19:08 Thomas: Just one canyon in the world, like, because the whole earth was covered, right, but it wouldn't rain, it was just specifically hard on the Grand Canyon, or there's, like a drainage ditch for the entire world, I don't know, where did it drain to, I didn't, who knows, I because

0:19:11 Andrew: Um, but, uh, right. But it rained really, really, really, hard in Arizona. So, um, yeah I I like the secret moon laser theory, but

0:19:28 Thomas: Like that better too, but also, I mean, the, if you remember from your Bible, you know, from all of you who did a a podcast covering the entire Bible. God just whisked the rain away. It's just like, and then the wind blew it away. So how does that create it? So he must have blown it along the Grand Canyon on its way into space. Maybe. Okay. Sure.

0:19:50 Andrew: But yeah, all right.

0:19:53 Thomas: So now that we've got that established, what's this Snelling complaint?

0:19:57 Andrew: Here's here's what Snelling wanted to do and what and the facts of the complaint allege he was not allowed to do. And I want to say parenthetically before I get into this, that this is really a good contrast with the Ann Coulter complaint that we talked about a couple of weeks ago. We have the ongoing discussion with Travis Wester coming out next week or thereabouts. You will recall in the C segment, we kind of laughed about how badly drafted the Berkeley College Republican YAF lawsuit was and that it failed to make sort of key allegations that are necessary to even plead the complaint properly, properly, um, this is an example of a well-drafted complaint, uh, in that as you read it, right, I'm not opining as to the underlying merits, but as you reading it, it makes sense, right?

Like it doesn't have bizarre, overblown, like this is subject to the mob of a way, like it, it doesn't sound like, you know, the Unabomber manifesto split into numbered paragraphs, uh, and most critically from a legal perspective, it makes it makes sense to make the complaint at least make sense. And and and we're going to get to that when we break down, uh, the specific causes of action, uh, but this is something. When I look at this, you'll recall at the outset of the Ann Coulter discussion, I said these are typically fact-intensive cases.

0:20:30 Thomas: Oh yeah.

0:21:28 Andrew: You get to allege as the plaintiff whatever you think the version of events are. And so long as those allegations, if true, would state a cause of action, then the judge isn't going to throw it out. The judge is going to let you have discovery, discovery. What made the Ann Coulter lawsuit so laughable is that most of the allegations, even if true, didn't amount to what the complaint said they would be, right? Because the law is just kind of crystal clear.

Like, yeah, even if it's true that they required Ann Culter to move to a different location, or there were sort of generic allegations about her having to pay security costs, if that's a disputed fact, which, as we've discussed at some length, it's not even clear that it is, uh, then, you know, that it just doesn't rise to the level of a First Amendment violation, even if it's true, um, here, you know, you have, we're going to get into the merits, but but it is at least written in a more sensible way. So if you want a contrast, if any of our OA listeners are thinking about, uh, carving out a career as First Amendment lawyers filing complaints against against universities on behalf of poor beleaguered conservatives, uh, this is at least a better, right? Yeah. This is a better complaint to, to model

0:22:41 Thomas: Right.

0:22:41 Andrew: Your, your potential career offer. So now, yeah, this has their specific thing, but, but I got to tell you the, the, the loss, the law firm that, uh, BCR and YAF hired with respect to the Ann Coulter thing is a well-known First Amendment law firm generally, right? So they know how to write these They don't have a long career, as far as I can tell, in backing, you know, nutball organizations with, you know, ludicrous complaints like the ADF. And it just, is more ammunition to the theory that you have advanced that I wholeheartedly endorse, which is that BCR, YAF, and Coulter, these people wanted public coverage and sympathy of themselves as victims of the PC movement. And they wanted that far more than they actually wanted to actually state a meritorious lawsuit, right?

0:22:42 Thomas: So they've got more experience. You mentioned that last week too, right? Like, they, this is their thing, like doing this all the time. So they're pros at it.

0:23:00 Thomas: Hmm. Right.

0:23:39 Andrew: It just, That, that is, that, don't know what's going on inside their heads, but it, it, that seems to be a very parsimonious explanation of the data, um, here, uh, what is a, uh, Andrew Snelling arguing. He is arguing that he has applied to take samples, geological samples from the Grand Canyon, and he's been denied the opportunity to take those samples on the same terms and conditions that other geologists applying for that right have otherwise been been granted that sort of opportunity, that he's gotten higher scrutiny, that his research proposal was denied, and that the reason for denying that research proposal is because he is an evangelical Christian and believes in young earth flood geology nonsense.

0:23:40 Thomas: Right.

0:24:34 Andrew: And so if he were not religious, then he would not have been denied those permitting rights to be able to go in. So those are the allegations. We have to accept them as true for purposes of the complaint. I think I'm, I'm yeah

0:24:50 Thomas: As to whether or not we can dismiss this outright versus going to going to discovery, right? Okay.

0:24:51 Andrew: Right Exactly. Um, and so I'm actually going to skip over kind of all of the facts and go straight to the causes of action, uh, because, you know, we'll sort of see the difference. So this begins with paragraph 84, which is on page 16, first cause of action, violation of the right of freedom of speech under the First Amendment to the U.S. Constitution. So here's the allegation. And again, you'll see right away, this is at least a more sensible characterization of allegations. Defendants' research, and defendants here are the Park Service, right? Overseeing the applications to conduct research at the Grand Canyon. Defendants' research permit policies and practices violate the free speech protections of the First Amendment facially and as applied because they permit park officials to engage in content based and viewpoint discrimination, are vague and overbroad, are prior restraints, and grant government officials unfettered discretion in the restriction of scientific research based on the religious views of the research applicant.

0:25:55 Andrew: Okay. I'm going to skip over paragraph 86 because that's the crucial one. 87, the Grand National Park is a designated public forum that defendants have opened up for scientific investigational purposes. Paragraph 88, regardless of the type of forum, government may not discriminate based on the religious viewpoints of the actor. Eighty-nine, defendants' policies and practices applied to plaintiff constitute impermissible content and viewpoint based restrictions on constitutionally protected activities. And there's a little bit more to it. But but you see how as I read that as a lawyer, I look at that and say, OK, this was not written by a clown in crayon on a napkin. Right?

0:26:31 Thomas: Yeah.

0:26:31 Andrew: Like it identifies the most relevant, right? It says, what kind of a forum are we talking about? What's the standard? The later paragraphs 91 says, defendants' policies and practices do not serve compelling government interests, are not narrowly tailored, and do not leave open alternative channels of activity, which is the standard for time, place, and manner restrictions that we talked about. Defendants' policies are not content neutral time, place, and manner restrictions, right?

So there are allegations here that make sense and are aware of the operative law that we're just sort of missing in the Coulter lawsuit. For me, the First Amendment claim where I have the biggest question mark is paragraph 86, which is scientific investigation is an activity protected by the First Amendment to the United States state's constitution, um, that sounds pretty good on its face, right? Like, it, it sounds like it might be, um, so I do, I do not know of a relevant, and I looked for cases in the Ninth Circuit, which is the, that good old Ninth Circuit, which is the circuit over which, cases from the District of Arizona, where this lawsuit was filed in the United States District Court for the District of Arizona.

So on appeal, it would go to the Ninth Circuit, it looks to the Ninth Circuit for binding precedent, or at the Supreme Court level for the proposition that scientific investigation is a form of speech Right. And so and as I look through cases, the cases that I have found tend to hold the opposite. Right. So there is a case called Urofsky versus Gilmore, 216 F.3d 401. That's a Fourth Circuit case, not binding precedent.

0:27:33 Thomas: Right. Right, yeah.

0:28:11 Andrew: But it's instructive, and it was brought by researchers at public universities that were challenging the provision at Virginia universities that prevented them from accessing content that was deemed pornographic. Right. And, you know, so obviously there are points of disanalogy. But nevertheless, the key issue that was raised in the majority opinion, and in fact discussed at great length in the concurrence, is, do you have a First Amendment right to engage in research at the university? And the majority opinion was, no, this does not rise to a First Amendment concern.

0:28:56 Andrew: Now, what does that mean? There are a lot of cases that say we have a difference between engaging in research and, for example, engaging in commercial speech, which gets less First Amendment protection, right? Right. So so that there is a distinction to be drawn there. But the act of the research is not a speech act in and of itself, as far as I can tell.

0:29:18 Thomas: So how do you feel about that? I mean, I, I guess we'd have to look, delve into hypotheticals or other real cases. But I don't know, because if you just asked me that without thinking about any of this, I might be inclined to want some sort of protection on scientific research or something. Is there another way that this would be protected?

0:29:23 Andrew: Yeah. Yeah. Well, here's well. So but let me give you the counter argument first.

0:29:37 Thomas: Because what if Trump somehow stops, the Trump administration somehow puts an end to all climate science research or Something? Yeah, go ahead.

0:29:46 Andrew: Well, and and in fact, there there is didnt a climate change case that is of the cases that that that comes up when we're talking about this. That case is Competitive Enterprise Institute versus Mann that dealt with the same thing, which was a climate change denialist claiming that suppressing his research results was interfering with his free speech rights to, you know, disprove climate change. I get the argument. The counter argument is that if the act of doing research is not protected free speech, then what that means is that the government can say, yeah, we discriminate between real science and fake science. Right. You it's not because if it is, then it is a good argument to say the Supreme Court is treating legitimate scientists, geologists coming out to the Grand Canyon differently than they are treating crackpots that think the earth is six thousand years old.

0:30:46 Andrew: So it really is kind of an important threshold question. It's one I would like to see resolved at the Supreme Court level. And so it's why, as I kind of look at this, if I was a district court judge looking at a motion to dismiss count one of this complaint, I would say, you know, it's not clear, right? The plaintiffs have alleged as a matter of law that engaging in scientific research is itself a form of expression. And the law is not clear on that. We don't know.

0:31:15 Thomas: Interesting, right?

0:31:17 Andrew: And so as long as the law's not clear, we're not clear, we're going to give the plaintiff, Andrew Snelling, and Answers in Genesis, their day in court to prove, you know, yes, we should have the opportunity. So, you Know, so now the question is, as the defendants, right, as The Park Authority, how do you come back and argue against this? And I think I would give kind of a multilayered response and say that, you know, in addition to—I would say, so number one, it's not clear that research is a speech act. It is itself a form of protected First Amendment expression.

0:31:51 Thomas: And when you say how are are they going to come back? You're still talking about trying to get dismissed outright, right? Versus, okay, okay.

0:31:56 Andrew: Exactly. Exactly. Because that's what you want, right?

0:31:58 Thomas: Yeah, of course.

0:31:58 Andrew: Yeah. And Number two, I would say there's also no religious viewpoint discrimination here because what we are discriminating against is garbage science. And we would discriminate against garbage science whether it was brought by a religious person, whether it was brought by a secular person. If the Time Cube guy or somebody who believes in Velikovsky style catastrophism, that like aliens showed up and carved the Grand Canyon with their moon laser, all of it are things that we would discriminate against, but we would discriminate against on the basis of crackpottery, not on the basis of it being a religious

0:31:58 Thomas: Yeah. Just clarifying. Oh, interesting.

0:32:39 Andrew: Viewpoint.

0:32:39 Thomas: Because when we've talked about viewpoint discrimination, I generically, like just any viewpoint, like looking at the content of it. But are you saying that it might be okay if it's on a basis basis like that versus some sort of religious basis.

0:32:40 Andrew: Um, yeah, The idea on viewpoint is that, um, there is that, the that the government is sort of impermissibly taking sides on a subject of legitimate debate, right? So if they, if they are censoring conservative viewpoints, that's viewpoint discrimination. If they are censoring religious viewpoints, that's viewpoint discrimination. And again, there's not censoring going on here, the the allegation is sort of disparate treatment, uh, but um, but, but I, I cannot find a case, uh, that says, uh, junk science is, you know, that that that we want to protect the viewpoint of, you know, deliberate efforts not to understand science.

0:33:29 Thomas: Yeah. So as far, I guess, generically speaking, as far as the law is concerned, you can establish science, even if it's science that, you know, might be somewhat controversial for some people, you're able to, in the court or whatever, and I guess you're filing back against this lawsuit, you'RE able to cite, like, this is is the consensus or this is scientific fact to be able to say, oh, okay.

0:33:33 Andrew: Right. Um, yeah, Sure.

0:33:59 Andrew: And and And in fact, courts do that all the time when you think about bringing on an expert witness, right? Like when I want to put on an export witness, let me use an example that doesn't really, that I don't face because it's a criminal law example, right, you as the defendant in a criminal case want to put on expert in DNA analysis to dispute the state's evidence, right and to talk about the the potential for errors in this DNA, in the DNA analysis that the state has put on an expert witness, both of those experts will go through a voir dire, right, will go through a process in which you proffer up their credentials. The other side gets to have a little mini trial within a trial in which they examine your expert and say, you know, what are your academic credentials? Do you hold to this? Is this part of the mainstream of science? And the court has to make a judgment as to whether

0:34:02 Thomas: Right. Hmm. Yeah. That's

0:34:56 Andrew: To, yeah.

0:34:56 Thomas: Interesting because You can find any crackpot with a degree to defend something. So they, they have to do a job of kind of establishing like this falls within consensus on, on these views. Let me ask the question this way, if you don't mind, let's say Andrew Torrez, you're in court right now, because this is interesting to me, sorry if it's branching off a little bit, but you're in court, the other side brings up an expert who believes all kinds of garbage, but he's got the relevant credentials, he just happens to be a crackpot in terms of the field, how do you go about getting him, I don't know, what is it, dismissed, or bringing down his, credibility.

0:35:35 Andrew: Yeah, I would move, I Would Make a Motion in Limine before the trial began. And again, this is in a civil context. And I have actually filed these motions. So, you know, right, remember, particularly in the civil context, you have depositions. There's no series of surprise witnesses, each more surprising than the last. Like, I know who the other side is going to call, and I will brief up a motion in limine, right? That is a motion to limit, to exclude the testimony of their expert witness on the grounds that their expert fitness is not qualified under Rule 702 of the Federal Rules of Evidence and the operative case, which is a case called Daubert v. Merrill Dow Pharmaceuticals. So let me touch briefly on what both of those standards are. Rule 702 says testimony by an expert witness, a witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if A, the expert's scientific, technical, or other specialized knowledge will help the trier of fact understand the evidence or determine a fact and issue.

0:35:42 Thomas: Okay, sure. Yeah.

0:36:45 Andrew: You. B, the testimony is based on sufficient facts or data. C, the testimony is the product of reliable principles and methods. And D, the expert has reliably applied the principles and methods to the facts of the case, right? So in other words, it's not enough to just say, as you would, like Dr. Andrew Snelling, let's go back to him in the AIG case, he, Dr. Andrew Snelling has a PhD in geology from the University of Sydney. Yeah.

0:37:11 Thomas: Oh, from bullshit universe. Oh, okay.

0:37:13 Andrew: No, University of Sydney, which, as alleged in the complaint, as Australia's oldest and one of its most prestigious universities, which is highly ranked in the top 100, I don't know if you dispute that, as highly ranked among universities, but look, like, he has credentials, has published actual geological papers, right. It's not that, this is, this is kind of like a callback to the misdirection on Neil Gorsuch, right? Like Neil Gursuch, it was not that he lacked the academic credentials to be on the Supreme Court. It's that he lacked the academic analysis and viewpoint to be on the Supreme Court. Same thing here, right. It is not enough to just say that an expert has to have academic credentials, because lots of people have academic credentials and are nuts, right, like Dr. Andrew Snelling. And again, that's a slur, not a diagnosis. Um, also have to meet the additional criteria. You have to have reliable methodology. Uh, and the Daubert case, uh.

0:37:28 Thomas: Yeah, yeah. Oh

0:38:23 Andrew: Does it have a known and acceptable rate of error, and whether, and whether that scientific research was conducted independent of the particular litigation in which the testimony is sought to be advanced? Right. So, so again.

0:38:36 Thomas: Yeah, that's encouraging. I like that because as a layperson, I didn't know. I mean, who knows if the court has to just be kind of agnostic about any scientific theory or something, but it sounds like, no, they're able to use these measures to kind of make sure they're at least using consensus and good methods and that sort of thing. So that's encouraging.

0:38:37 Andrew: Yeah. Yeah, yep.

0:38:56 Andrew: Yep. Yep. Again, I want it to be clear I am oversimplifying here, and that there are some additional and prior standards, and other states that haven't sort of fully adopted in state proceedings the Daubert standard. They look at a slightly earlier standard. That's way too much of a rabbit trail. I just want to flag. But by and large, there is an inquiry that the court does. When you're talking about the admissibility of scientific evidence, in which the court has to figure out if it's real science or not. So I would feel comfortable in arguing in court that that same analysis, since it's part of what a court does, does not form the basis of viewpoint discrimination. Discrimination, right? That when we say we are excluding you, not because you're a Christian, but because you don't have any idea

0:39:17 Thomas: Yeah. That's okay.

0:39:42 Thomas: Interesting.

0:39:49 Andrew: What you're talking about, and that we have to do that, right, that like if the ancient aliens guy shows up and is like, I want to take all these samples from the Grand Canyon to prove that, you know, the moon laser was used to carve the Grand Canyon, right. We would tell him to go pound sand and not Grand Canyon sand.

0:39:49 Thomas: Cause yeah, yeah.

0:40:08 Andrew: Go find your own. So we're

0:40:08 Thomas: Go bounce in somewhere else. Cause he's trying to pounce that he's like, I need to pound sand in order to prove this.

0:40:15 Andrew: Going kind of long on the complaint. I want to mention briefly that are the additional sort of causes of action and how we would go about evaluating them. The second cause of action is a free exercise argument. In my view, that does not stand up in light of the Supreme Court's decision in Employment Division v. Smith, Right? Right. Like, we know that the Supreme Court has really gutted what it means to bring up a law of neutral applicability, in this case, a policy of neutral applicability, and the burden that that you have to show in order to make a free exercise claim.

So I don't think the free exercise argument is going anywhere. The third is a due process argument. And again, this sort of tracks the Ann Coulter. It's kind of a boilerplate, but there's no process that, I mean, you can argue that there was viewpoint discrimination in the process. That's much better swept up in the fourth cause of action, which is an equal protection violation. And again, I want to illustrate the difference here, right? We laughed at the Ann Coulter lawsuit because their equal protection violation was claiming that being a conservative was a member

0:40:40 Thomas: Oh, yeah.

0:41:31 Andrew: Of a protected class, right. Here's how it's pled in this lawsuit, freedom, right, of speech under the First Amendment is a fundamental right. The Fifth Amendment requires that the government treat all similarly situated individuals equally. That's paragraphs 107 and 108. Those are correct as a matter of law. Upon information and belief, defendants allow similarly situated persons access to the Grand Canyon National Park for the purposes of scientific research. Research 110, defendants' practice of not responding to Dr. Snelling's request for a permit and or refusing to grant him a permit, while routinely and consistently issuing permits to other geologic researchers, treats Dr. Snelling differently from other similarly situated individuals and groups on the basis of the content and viewpoint of speech and sincerely held religious beliefs. And then 111, defendants do not have a compelling or legitimate governmental interest for such disparate treatment, whereas, therefore, defendant's policies comprise unconstitutional violation of equal protection.

0:42:28 Andrew: That recognizes the correct standard, right? Which is to say, if you are not a member of a protected class, the government's burden is only to show that there is a legitimate governmental interested in doing something, a distinction between you. Um, now again, I think there is, right, it's the one that I just articulated, the difference between allowing geologists and ancient alien researchers

0:42:42 Thomas: Yeah. There's not going to be any Grand Canyon left if we let all you nutjobs come and take our rocks.

0:42:48 Andrew: Right, right, that, that, that, that, that is a reason, but again, at least this, is at least THIS recognizes where the burden is, they're not trying to claim that being a creationist is a member of a protected class. Like, it isn't, would require that heightened level of scrutiny, when you're just talking about individuals who aren't a member of a protected class, the question is, is there a legitimate governmental interest and can the government articulate it? Now, again, I think that they can, you see the distinction. And then what we can't discuss on this show, it is a topic I promise we are going to do a lengthy show on everyone's favorite, the Religious Freedom Restoration Act.

0:42:59 Thomas: Yeah, yeah, better written.

0:43:19 Thomas: Mm-hmm. Oh yeah.

0:43:31 Andrew: The fifth cause of action is a violation of RFRA 42 U.S.C. section 2000 BB. I can't opine as to that now because we lack the background for it. But remember, RFRA is is designed to respond to the fact that that deployment division versus Smith that's the peyote case that Scalia authored The fact that it gutted what it means to bring a First Amendment free exercise clause, that's what was restored. That which is the Sherbert v. Verner standard, that is what RFRA restores. So the fact that we were able to kind of easily pass over count two and say there's no more robust free exercise clause, thanks to Scalia and Employment Division versus Smith, there is a more robust federal cause of action, again, not a constitutional standard under RFRA. How that would apply to this case, again, got to be subject for a future show. But I thought that this was an instructive demonstration on free speech.

And I think it fits into kind of our overall pattern where, you know, these are the kinds of cases that we are talking about, you know, at at its worst that, you know, the conservatives are complaining about. And just ask yourself now, how does denying a kook the opportunity to collect rocks at the Grand Canyon, how Does that stack up against hauling a journalist off in handcuffs, you know, parading him keeping him in jail,

0:43:31 Thomas: Later date.

0:43:40 Thomas: Yeah.

0:44:56 Andrew: While you know for asking a question of the Secretary of Health and Human Services, or and sentencing a protester for laughing derisively and loudly, but laughing dercisively at a racist claiming not to be a racist during his confirmation hearings. I know where I come out on that. So yeah,

0:45:17 Thomas: All right. Interesting stuff, but a well-written complaint and potentially something that should go forward, it sounds like, if it's unclear on some of the standards there. So really interesting stuff.

0:45:28 Andrew: I think so.

0:45:29 Thomas: Excellent. Well, I think that's really cool, too. Hey, fair and balanced. That's our motto here. So there you have it. They might have a case. This weird young Earth creationist might have case here. We'll see. All right, Andrew. Andrew, thanks so much for taking us through that.

0:45:34 Andrew: There we are.

0:45:48 Clip: The law breaking down

0:45:55 Thomas: All Right, Andrew, listener question from Thomas McCormick. Why are churches tax-exempt at all? Boy, good question, but I think you've said before, I'm pretty sure you've sort of answered this before, which is, you know, doing charitable work in general, is something that, you know, makes sense to have tax exemption on. There's a lot of stuff churches do in that regard. But what do you think?

0:46:05 Andrew: Yeah, and I thought it was a good cheeky question to do on an episode where we are looking at at a church-affiliated organization, you know, Answers in Genesis here, and take a look kind of at the larger social policy. So, yeah, I mean, the straightforward answer to the question is, like other non-religious charitable 501c3 organizations, you know, when churches do positive work in the community, I don't have any problems with them being tax exempt, even though there is a good philosophical argument to be had regarding the interplay of the Establishment Clause of the First Amendment, right? Right. Which the strict separationist provision would say, you know, if if it's going to be, if it's going to be, and this is not, I want to be very, very clear.

0:47:12 Andrew: The Supreme Court has moved away from what I would call the strict separatist position, particularly over the last 20 years. But I would define that position philosophically as the position—we've done this in a previous episode—the position taken by John F. Kennedy in his 1960 speech on religion, right, where I envision an America where the separation of church and state is absolute. And one aspect of that is where no money comes from the federal treasury to go directly into the pockets of a church. Um, and that that position was actually one that was very popular among religious institutions up until the late 1970s, 1980s. Um,

0:47:21 Thomas: Great.

0:47:54 Andrew: Well, churches have been tax exempt Yeah, well, I mean, keep in mind, we've only had, uh, the IRS in you know, right, in the beginning of the 20th century, uh, churches have been tax exempt, uh, since.

0:47:54 Thomas: So how long have churches been tax exempt? Has it been forever or was it a newer thing? Income tax? Yeah. Right. But still, it would be different if they weren't. And then in the 60s or 70s or something, they were. I still feel like that would be significant. But they were from the beginning.

0:48:07 Andrew: Yeah. Yeah. They have but yeah, they have been from the beginning. That, I, I highlight that to say that there is a philosophical argument to say what's the difference between a line item in the federal budget giving churches, you know, X dollars, versus a a provision of the IRS code that says you don't have to pay X dollars that you would otherwise have to pay his income taxes. So I get the argument. I think it's clear from our nation's history and on an equivalent basis that churches the deserve sort of equal access to compete for 501c3 status. But part of the genesis of this question, at least the way I interpret it, is religious religious institutions as 501c3s have lots of special advantages that non-religious 501C3s don't get.

0:48:15 Thomas: Okay.

0:49:05 Andrew: And in my view, it's worth highlighting what those are. So the first is, and remember, 501 C3 is 26 USC section 501 subsection C subsection three. That's the provision of the the IRS code. Um, the first provision I want to highlight is, uh, section 508, right? So you turn the page a couple sections later, section 508 says, uh new organizations must notify the secretary of the treasury that they are applying for recognition of section 501c3 status. Uh, and you know, okay, that makes sense. The first sentence says, except as provided in subsection Subsection C, an organization organized after October 9th, 1969, shall not be treated as a 501c3 unless they apply.

0:49:52 Andrew: And you're like, okay, well, what do you think is accepted as provided in subsection C? And subsection c1 says mandatory exceptions, subsections a and b, the provision I just read, shall not apply to churches, their integrated auxiliaries and conventions and associations of churches, right? So right off the bat, if you want to start an educational nonprofit foundation or a charitable nonprofit foundation, you have to hire somebody like me—in fact, I do this kind of work—to apply for 501c3 status. Try and do that as inexpensively as possible, but it takes some time. You have to fill out the paperwork, and the government has to review it. You're a church. You don't have to do that.

0:50:33 Andrew: You are presumptively a 501C3. Um, that's a special benefit only churches get as a function of our law. Next you have to turn almost to the end of chapter 26 of the IRS code, uh, but this is subsection 7611, uh, and those are restrictions on the IRS's power to conduct inquiries and examinations. And it says, "In general, the secretary may begin a church tax inquiry only if the reasonable belief requirements of paragraph two and the notice requirements of paragraph three have been met." I could go into those specific provisions. They make it, they put an additional burden. So not only do you get, as a church, the presumption of 501c3 status, but if the IRS suspects that you are fraudulent, if you're an ordinary 501C3, there's no barrier to them conducting an investigation.

0:50:33 Thomas: It's just assumed. Wow. Yeah.

0:51:31 Andrew: And we've talked about in discussing the Johnson Amendment how that is the number one concern that 501c3 orgs have. They review their public statements very, very carefully because the number one basis for 501c3 status being revoked by the IRS is public demonstration that you are using the 501C3 charitable organization to lobby on behalf of or against or to influence legislation or election results. Um, we know that's not typically enforced against churches and, uh, any investigatory power is restrained by this additional section. So, uh, those are pretty great benefits to being a religious, a church 501c3, as opposed to just your run-of-the-mill educational charitable organization.

0:52:25 Thomas: No kidding.

0:52:26 Andrew: And I do want to highlight, as usual, I want to try and be as balanced as possible. Um, we've described previously that the key benefit of being a 501c3 as opposed to a 502c4, uh, is that, uh, you get the tax benefit both ways, right? The church gets to treat the income as tax exempt and individual donors get to write off, uh. That income, uh... As part of their taxes. Uh, a church does not have to apply for 501C3 status under the provision we've just talked But if they don't, the IRS can scrutinize individual donations that are made to a questionable church, right? So that case is, I'm going to link it, it's called Taylor.

0:53:12 Thomas: So wait, sorry. You said

0:53:14 Andrew: Yeah, yeah, go ahead.

0:53:14 Thomas: They don't have to apply. I thought they were just were presumptively. I won't say three, but they, they, but They still have to file a paper with some paper. Okay. I see.

0:53:15 Andrew: Yes. They are presumptively 501c3, but they still have to meet—yeah. They don't have to file any paperwork, but if they don't file paperwork, then members' gifts to that church may be audited by the IRS. So the church won't be audited, but you can look at contributions. And if the church is very obviously a scam, the way in which the IRS has gone after half of the benefits is by auditing what members donation, right? Right. So you give my I establish, you know, the Church of Andrew. I am presumptively a 501C3.

0:53:26 Thomas: Oh, lots

0:53:57 Andrew: You give me.

0:53:57 Thomas: Of hair metal going on in that church, but yeah.

0:53:59 Andrew: Oh, yeah, it's going to be awesome. We'll have, you Know, nothing but the scorpions playing during our services. A rather large donation to the Church of Andrew, the IRS. Exactly.

0:54:03 Thomas: Yeah. Hoping to increase my bar score. Yeah.

0:54:14 Andrew: The IRS has all of the barriers that I've talked about in auditing me as the church, but they don't have those same barriers in auditting you when you deduct the contribution you've made to me as a charitable contribution. Does that make sense?

0:54:15 Thomas: Wow.

0:54:32 Thomas: But just, but just filing the paperwork to be a 501c3 and then they, they, so what, they can't audit you or they just, they have to have some high barrier of, I

0:54:37 Andrew: Yeah, don't even have to fail the paperwork. Yeah, they have to meet those notice and reasonable belief requirements that I set out before.

0:54:46 Thomas: Don't, why would you want that? I don't even understand like the logic behind that. I would feel like you would always want to be able to audit suspicious activity. Why? What a weird.

0:54:54 Andrew: You'd think, you'd think. But that's because religious organizations have petitioned over the years for exceptions to the code because churches resent. And you can find, and this is not hard to find, just Google, do churches have to file to be a 501c3? And you will pull up lengthy screeds about how we're not going to submit to the secular authority of blah, blah, bla. Just filing the paperwork is heinous discrimination and that sort of thing, when in reality it is a special benefit. I mean, I read the code, right? It is written into the law as a benefit that only churches enjoy. I don't know how you defend that in light of the Constitution having a secular purpose, there they are. But I did want to flag the extent of that. I'm going to link the Taylor versus Commissioner of the IRS opinion in the show notes as well, that they're not utterly powerless. They can go after a member. If you have a sham church, the IRS can go after members who donate money to a church that has not filed for 501c3 status.

0:55:01 Thomas: Yeah. Oh, my gosh.

0:56:06 Andrew: Status. They can't go after the church for failure to file, because that is a protected right they have, and only churches have, under the code. And if it's a sham, they have to meet a higher threshold than they would for any other organization that is a sham. So those are the special benefits you get for being a church.

0:56:22 Thomas: I don't get it. Why are we doing this to ourselves, country?

0:56:26 Andrew: Yep. Yep? So remember that the next time you're you're listening to

0:56:27 Thomas: Wow. Next time a Christian is boohooing or you hear Trump boohoohing about how, you know, how oppressed churches are in this country. Yeah, churches. Gosh, when are they going to catch a break, Andrew?

0:56:31 Andrew: Right yep exactly I know I know it's so tough

0:56:44 Thomas: They're just how many churches are even left in this county as a result of the oppressive policies that we've enacted. There's probably three or four churches, yeah, to

0:56:44 Andrew: Yeah. No it's just it's there are there are states where you have to drive hundreds of miles uh oh no wait those are abortion clinics I'm sorry yeah I'm I'm sorry uh all right we've made our I think we've made our political point new

0:56:55 Thomas: Access a church. Yeah, wow, nice one. All right, that's fair enough. So it's time to get to our favorite segment of the week. I mean, it's just neck and neck between these two segments. It's New Patron Tuesday.

0:57:15 Andrew: Patron Tuesday. All right, so thank you to new patrons Matthew Kerr, sorry, Andre Decastro, Damian Rickard, who we plugged in the last episode, Graham George Hirst, Nick Seabrook, Jaime Stark, David Eisenberg, Alan Firth, Jaytee Starr, Jaytee loves his hubby Logan, thank you, Jude Searles, Brandon Brown, and thank you to Garrett Dugger a

0:57:25 Thomas: Yeah, yeah.

0:57:44 Thomas: And thank you, Alex Kleiman. And thanks to the pledge edit, Squaring the Strange. Thank you for that edit. Chris Hogue, Endre Fodstad, ctk, Anthony Beesley. Dang Griffith, Dale Campo, Travis Carter, Mario Mudek, ORLYRADIO, and Jim Shaver for the new pledges. Thank you guys so much. Welcome aboard. Hope you're enjoying that Patreon content. Episodes usually a little early, like at least anywhere from like days to hours early. And also, of course, Law'd Awful Movies. Already coming up on Law'd Awful Movies 7, huh?

0:58:24 Andrew: We've got it, we've got a new great one yeah oh, we've got a great one planned for you, we think you're going to enjoy it, and early answers to Thomas takes the bar exam questions

0:58:30 Thomas: Can't wait. Oh yeah, most important. That's the one I had blocked out of my memory that my My therapist was helping me work through, but, but yeah, you're right. That repressed memory I have of everybody gets to know that Thomas embarrassed himself again on the bar early. You get to know early into, yeah, let's, the current installment of Thomas embarrasses himself on the Bar Exam. No, no, I'm changing this. Thomas eliminates two answers on the Barr Exam. Here we go.

0:58:50 Andrew: Well and and that's a terrific segue all

0:59:02 Clip: Oh, no associate of this firm has ever failed the bar exam. No kidding.

0:59:07 Andrew: So this is Thomas takes the bar examine and eliminates two answers, question number 24 uh this was yeah this could uh you were 11 of 23, uh, this was a question involving the dance student who was uh working, working out at her apartment building, running up and down the stairs, jumping, all sorts of stuff, uh, one of the janitors warned her that, you know, you keep doing that, you're bound to get hurt, and the question. The question is, could the building owner, as a defendant in the lawsuit after the woman does get hurt, could he introduce the statement of the janitor claiming, I told her that running too fast is dangerous and she was bound to get hurt? And the question is, is that statement likely admissible? So we had four options. A, yes, because it is an exception to hearsay as a spontaneous declaration to an opponent party. You eliminated that option, which I can say is a correct elimination. It is

0:59:13 Thomas: And this could get me back to 50%, right? I'm 11 of 23. Okay. Oh man, this was hard.

1:00:09 Andrew: Not a spontaneous declaration because the, janitor, well, because the statement was being put into evidence by the building manager, right? So it was In other words, it was not a statement by the manager. It was the manager quoting a statement from someone else. It was, as we will get within the answers, hearsay within hearsay.

1:00:13 Thomas: Because it was later right, he was telling the guy later so that that's what I mean, like he didn't spontaneously quote

1:00:32 Andrew: Yeah. B, this was your answer. Yes, because the building owner can testify and can be questioned about what the janitor told him. C, the no, because it is irrelevant and immaterial, or D, no, The other answer you ruled in, which was no, because it's hearsay within hearsay and there are no hearsay exceptions that apply. And I am sad to tell you, it is in fact D. It is hearsay.

1:00:32 Thomas: Somebody else, right better not be D I blame

1:00:58 Andrew: Within hearsay, huh?

1:00:58 Thomas: You for this one, Andrew, you can't laugh during an answer, you

1:01:02 Andrew: I very clearly said I do not want want you to construe my laughter either pro or against I

1:01:09 Thomas: Threw me off with this one, I'm I'm tired, I'm reporting you to the commissioner, I can't, I can you laugh laughtery answer. Oh, sorry. I didn't mean to laugh during the correct answer.

1:01:13 Andrew: Yeah um hearsay within hearsay is exactly what it sounds like, right, like this is a case where the janitor's declaration is itself hearsay, if you want to introduce it, and someone else else testifying about what they heard someone else say is hearsay within hearsay, as that gets more and more attenuated, you wind up with the situation that you have, which is if you look at the fact pattern, now have the building owner mischaracterizing what the janitor said. And what we want to do in these cases is we wantto encourage the parties to put the janiter on the stand, right?

1:01:43 Thomas: Wait. Mm-hmm. To go on the stand. Yeah.

1:01:59 Andrew: So rather than us figuring out what the janitor might have meant when he said that, we want to put him on the stand. Now, there is an exception.

1:02:03 Thomas: Yeah. I actually thought that, but I didn'T know how to best express that. I think I got a little confused. But

1:02:09 Andrew: Yeah. Yeah, no, it's fair enough that you would not have. Feel that this is a tough question to throw at you when we're teetering on the edge of 500. It just means you're going to have to go on a little bit of a run. But I have every confidence in you that you're about to go On a little Bit of a Run here. Here, so

1:02:22 Thomas: OK. I will. I'll do it. Well, I think Thomas eliminates two answers in the bar exam is still I think it's still in good standing, actually. And so I'm thank

1:02:29 Andrew: Uh, Oh, Yeah, Look, If, if judging On your body of work, Thomas eliminates two answers on the bar exam is running a at, I think about 90, 95, you're doing great.

1:02:44 Thomas: You very much. There's still hope for Thomas's second chance law. Practice?

1:02:48 Andrew: So that's Right, I'm Telling you, hey, People, people laughed at, at rightly so, at LegalZoom, but uh, that created a new Market And made that Guy A Ton Of money.

1:02:49 Thomas: Yeah, Oh, Yeah, People Laughed At The Pet rock But

1:02:59 Andrew: Right. Yeah. So Thomas's second chance bar exam, I think, has the opportunity to be the pet rock and or legal zoom, which, by the way, I would rather have a pet rock defend me in court than use legal zoom.

1:02:59 Thomas: Uh, yeah, The Next Pet rock Oh, What about me? Would you Rather have Thomas's Second chance legal? No,

1:03:16 Andrew: I would. Yeah, I think in order, I would say Thomas, then the rock, then LegalZoom. This is Great, we're Gonna get sued by LegalZoom. It's gonna be awesome, um,

1:03:16 Thomas: Not Quite All, Right, Yeah, We're never Getting them as sponsor, actually, at this Point, I think it would be funny if we ever get that offer, we Should take it. Take

1:03:28 Andrew: Yeah, Oh, Yeah, No, I will, I will wholeheartedly. No, I can't do That.

1:03:35 Thomas: Their Money.

1:03:35 Andrew: I Can. It's Just, I will heartedly take their money, though. Um, yeah.

1:03:36 Thomas: Yeah, Yeah, That would be super funny. I think we, we could do it with a wink and a nod. Like, everyone would know, you know. I don't think they'd get much play off our promo code though. Like I feel like absolutely zero clicks on a promo code.

1:03:53 Andrew: By That, I mean, definitely use the promo code slash law pod. All

1:03:58 Thomas: All right. Well, I'm a failure as usual and we'll have to see Andrew, who is our non-failure for this week?

1:04:58 Thomas: All right, well, that does it for the bar exam. I'm, gosh, I're going, gonna come back, I got time, I got plenty of time, right? I mean, statistical Blips, you know, like I could do It

1:05:04 Andrew: We Got 200 of These, you're only, you're Not even out of the starting gate, and you don't want to be, right, like, we've got, uh, major horse racing event coming up, uh, the, the horse that's first out of the blocks is almost always tires By the Time it comes to the home Stretch. So

1:05:06 Thomas: Yeah, Yeah, Yeah, So Everyone Else Getting All these questions right, you better watch your back, because I'm coming for You, everyone

1:05:23 Andrew: Yeah, It's A marathon, not a sprint. There We go, yeah.

1:05:28 Thomas: Else Foolishly Getting these questions right at first is I don't know what You're just, your Strategy Is Wrong.

1:05:31 Andrew: Yeah, Don't Waste Don't waste Your Good answers. Yeah, don't Waste the good answers right out of the gate. Get those out of the Way, yeah.

1:05:39 Thomas: They Probably Teach you that in the, like, test prep booklet. They're like, yeah, don't Yeah, early questions, yeah. All right, right. Well, with that, I'm sure that's sound advice. So I'll have to keep that in mind. And that is it for us today on Opening Arguments. And we will see you on Friday for a nice, another, again, nice, relevant, quick, short turnaround, topical episode. So thank you, Andrew, and thank you for listening. And thank you most to our patrons over at patreon.com/law. We'll see you then.

1:05:42 Andrew: Another Topical Yeah, Nope, That's

1:06:14 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.