OA73: Berkeley, Ann Coulter, and Free Speech (w/guest Travis Wester)

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 70. I'm your host, Thomas Smith. That's your other host, Andrew Torrez. How are you doing today, Andrew?

0:01:24 Andrew: I'm great Thomas, how are you?

0:01:26 Thomas: Doing good. We've got an interesting show for you today. I think it's cool to do this every once in a while. There's somebody with a pretty prominent following on Twitter who I think is a common friend with Eli Bosnick, who really disagreed with, I think, your analysis of the Ann Coulter, BCR, Young America's Foundation case. We're going to have a little bit of a, I guess, discussion debate on it. And I think this is cool personally, because interesting to see or not, how well lay people can understand the law. And that's a goal that you have on the show for lay people to be able to understand. But when they disagree, it's not as though they can just say, well, the expert's always right, because experts disagree. So this is a case where Andrew is going to do his best and our And our guest, Travis, is going to do his best to make a case for why they believe that lawsuit means a certain thing or should go forward, I guess, or should not go forward.

0:02:22 Thomas: So that'll be interesting, kind of a real world. Let's see how well we can, you know, make opening arguments work in getting lay people to understand the law, I suppose. Right.

0:02:32 Andrew: Yeah, I'm looking forward to it, and I want to do it sort of interactively for the audience, so you know, I'm gonna try and be really clear with the legal authorities that I'm looking at, so you can, you know, listen and play along if you're at the computer, and, and, hopefully, you know, it's a way of, it's always keeping all of us honest, right? Because I never, ever want, right, the answer to be like, "Oh, Andrew said X on and Opening Arguments, you know, therefore it is right." Like, I, you the whole point of doing this endeavor is to, is to help people, uh, understand the law, so

0:03:02 Thomas: And as always, the show notes are the best help for that. Andrew is great with the show. The links will be there. Pull them up. Go live with us. You can figure out what Andrew's referencing and see it for yourself. And we should be able to put Travis's references in there, I'm guessing, assuming he has some. So there you go. You'll be able find all references there. Follow along. So let's get to it. Let's talk to Travis Wester.

0:03:02 Andrew: Yes. Yeah. Yeah.

0:03:28 Thomas: Joining us right know is Travis Wester. How are you doing, Travis?

0:03:31 Travis: I'm doing well. How are you, Thomas and Andrew? Is

0:03:33 Thomas: We're all doing well, good. So, I, uh just to give a little introduce, introduction to why Travis is here, uh we had a little bit of a, a, Twitter thing going, I don't know, I think, uh you have a history with maybe Eli, or Ina, or somebody, we have a common friend, and I think

0:03:47 Travis: Yeah, it's Eli. Well, if I may, Eli and I were talking about the lady that got arrested for laughing during, laughing at Comey's record in the Congress chamber.

0:03:48 Thomas: Yeah, sure. Sure. Right. Sessions.

0:04:00 Travis: So was it Sessions? Yeah, my bad.

0:04:01 Thomas: Yeah, Jeff Sessions' not coming.

0:04:03 Travis: So we were having... We were having that conversation, and he brought up you guys, and so I checked out your Twitter account, and I think the thing that kind of caught my eye was this tweet that you had tweeted regarding your 65th episode about Ann Coulter and Berkeley and all that, and uh, my

0:04:26 Thomas: Yeah, so we did a short segment on that, and I just wanted to point out that it was only, it was a small part of the show, so, we weren't able to go too in-depth on it, but now, I'm glad you're here, because we'll have the opportunity to go more in-depth on that lawsuit, and

0:04:30 Travis: Yeah.

0:04:41 Travis: It, Um, so if I may, if I make... Quote the tweet for your listeners that I that I was responding to. Uh, the tweet specifically was, "Free marketeer and Coulter thinks she has a First Amendment right to taxpayer funded campus security, how precious," and uh, miresponse was a bit of an uncharitable straw man, granted, um, maybe a little bit of poisoning the well as well, uh, a lot of fallacies flying out of, out of my response to that, uh, and then I think it was, I don't remember who

0:04:46 Thomas: Sure. Yeah.

0:05:10 Andrew: Wait, can we read your response?

0:05:12 Thomas: Well, since you're reading our tweets, Yeah, we can say so. You said these guys who seem to think people with the wrong ideas shouldn't get police protection is what your response was. So I'm glad you're acknowledging we're acknowledging it's Twitter. There's you know, there's some there's Some exaggerations and strawman and going on there. I'm interested to hear you guys talk this out because it sounds like you still disagree with Andrew's interpretation. Interpretation and, and just, just to clarify for people, um, not trying to be condescending, but do you have a law degree or do you Have any background that we don't know about or, or what, what is your backgrounds for people to know?

0:05:20 Travis: Uh-huh. Yeah. Sure.

0:05:36 Travis: No. I don't have a law degree, no, I just, uh, you, like a lot of people, uh, I'm able to read the internet and synthesize the information, um,

0:05:52 Thomas: Sure. But I mean, I suppose if you want to give a, just a, a very brief, you know, biographical info, so people know why we're even talking, what, What is it you do? You seem to have a following, uh, and you go into that if you don't mind.

0:06:03 Travis: Yeah. Yeah, I mean, I'm an actor, you know, I think a lot of people who follow me on Twitter probably follow me for that reason, which is why I never really, which is why I keep all of my sort of political stuff to add mentions. I don't really like, probably most of the time, most of my direct tweets are just, you You know, we're just sort of, you know, pablum. But, you know, I, so yeah, I'm an actor. But I also, a citizen, mostly, yeah, mostly concerned citizen. You know I'm involved in local government. I volunteer for local government, so.

0:06:17 Andrew: That's totally hidden. Don't worry. Oh

0:06:23 Thomas: Okay. Actor, concerned citizen, you have an interpretation, I get it. Cool.

0:06:36 Travis: But mostly in the sort of planning and land use management space. But, yeah. But, you know. I do have a very strong belief in not just the First Amendment as a legal concept but in freedom of expression as as a value as a as a cultural value, um, so when I first read this tweet and then we kind of, and then I kind of, I was a bit uncharitable with my response, and then so we started to get into a conversation. And at first, um, admittedly, I I could only argue the ought, if that makes sense.

0:07:09 Thomas: Okay.

0:07:09 Travis: Like there's a a difference between is and ought. And so I could only really argue the ought. I couldn't really argue the is because I wasn't too familiar with any particular details of the case. I hadn't read the lawsuit. All I could say is, yeah, I think the government ought to protect speakers, even if they're unpopular. So then I started to kind of look at it a little more carefully. And I found found a case called Sonnier versus Crane, which is a Fifth Circuit case. So admittedly, Berkeley is in the Ninth Circuit. But I found this Fifth Circuit case from 2010. So it's pretty recent. And it basically said that security, if these security fees are at the sole discretion, expression of a university, and it was a university. So a little bit of background, if it's necessary, if you'll indulge me.

0:07:56 Thomas: Okay yeah I think so. What do you think Andrew? It sounds like because I'm not familiar with this case so

0:08:03 Andrew: Yeah, no, I'm really interested in hearing this laid out. I want to, well, why don't you go first and then I'll

0:08:04 Thomas: Sure

0:08:09 Travis: First, and I'll- Yeah, well let me, if I can just kind of follow this thread back to where, back to what, you know, and you'll kind of get a, hopefully get an understanding of how a layman like myself could, be under the impression that this actually really is a a first amendment issue well

0:08:10 Thomas: Lay out the case for us. Yeah sure

0:08:11 Andrew: A couple things. Yeah, well

0:08:23 Thomas: Go ahead.

0:08:23 Andrew: And can I jump, I just want to jump in for one second here because I mean, I want want to emphasize, like, part of why we do the show is to encourage non-lawyers to go out and read primary source documents. So, like, I do not, I, I, I avoid, you know, credential dropping and that sort of thing. I, you know, Eli sometimes is aggressive with that on my behalf, and I tell him, "Hey, well, you know, knock that off." I, love, like, the fact that you went out and, uh, and are looking, looking at a case. Uh I welcome the discussion. I really want you, our, you, you're not a long-standing listener of the podcast, but, um, but part of our mission is to, uh, know, tell people the law is not, you arcane magic words in Latin and gold fringe on the flag.

0:08:36 Thomas: Right all

0:09:06 Andrew: Like, the law is accessible and understandable, so, uh, I just want, I just wanted to be clear at the outset. Go ahead.

0:09:11 Travis: Ahead.

0:09:11 Andrew: Yet.

0:09:05 Thomas: Right

0:09:11 Travis: Cool. Right. So you got Sonnier versus Crane. It is a 2010 case out of Southwestern University where an incredibly unpopular speaker, a guy by the name of Sonnier, I could be completely butchering that name. I have no idea. It's S-O-N-N I-E-R, if anyone wants to look it up. And Crane is spelled C-R-A-I-N. And that's off. That's from memory. So if I misspelled any of that, I apologize.

0:09:34 Andrew: It's, it's C-R-A-I-N.

0:09:35 Travis: Thank you.

0:09:35 Andrew: But get there, yeah. Hey.

0:09:37 Travis: No E, no E at the end. Right. So the, the, so the reason I found Sonnier versus Crane was because we were talking about security fees. And I also kind of want to say starting out that that's pretty much where I would like to focus the conversation because that's, that's where things got started. The reason I quoted the tweet at the top of the the conversation just now is, um, you know, to kind of frame, you the, the sort of the spark that, that, that, that led to, to us, um you know getting into it on Twitter. So this guy named Sonny A and you know, again, if I'm, if I'm misstating the facts of the case, I apologize, but this is my understanding that guy named Sonnier, super unpopular guy, wants to come on campus and say mean things about people. I think that's kind of it. He's like an anti-gay preacher or something like that, if memory serves.

0:10:23 Travis: And so he brings this lawsuit to Southwestern University, and Crane, this person Crane, is one of the administrators. And very similar to the YAF lawsuit in where it sort of seems like, like, they just make a bunch of claims and hope something sticks. And the thing that really sticks, and the reason it's relevant to this discussion, is that really one of the only things that stick is this notion of security fees and whether or not the imposition of these security fees is constitutional. And it was a very close decision. The Fifth Circuit ruled that no, no, it is not constitutional to impose these security fees if the university has sole discretion to impose these fees.

0:11:08 Travis: I don't know what that means, I'll be honest. Like, does that mean that, like, you know, if the, if the Parks and Rec Department is involved, then it's constitutional? I don't know. But if the university has sole discretion of the imposition of these fees, it represents a violation of the First Amendment. That's, that's what the Fifth Circuit ruled. And, and as precedent, they cited a case called Forsyth County versus the Nationalist Movement. And that's from 1992, the golden age of hip hop. It's from 1992. And in that case, that was basically like a local government was saying that, like, some sort of, like, white nationalist organization, they were going to charge some white nationalist organisation more money for security fees for obvious reasons.

However, in a, I think it was a 5-4 decision, um, the court, I wrote this down, the court said that, um, the problem was that the low, if the local government was said that the local government was violating the First Amendment because of the lack of, and I wrote it down, narrowly drawn, reasonable, and definite standards, uh, governing, like, how much, like, governing the amount of the fee. So the judges in Sonnier v. Crane cited that case as precedent. So what they basically did is they took Forsyth County v. Nationalist Movement, and they applied it to a university setting. Now, it's my understanding that if you have a private university, a completely private university, they can do whatever they want. They can kick out whoever they want, they don't have to let anybody come and speak if they don't want to. But if it's a public university, or if, if it's a university that takes any amount of federal funds,

0:12:45 Travis: They do have to abide by these rules when it comes to time, place, and manner restrictions.

0:12:53 Thomas: So in your view does that relate so you're saying this case is just like In enough ways, it's similar to the Berkeley case so that there's a case to be made that Berkeley is using these fees in a way that violates the First Amendment. I

0:13:06 Travis: Yeah, well, I think that, yeah, and I think they kind of spell that out in the lawsuit. They kind of say like, look, you know, they talk about other speakers that have come in. They talk about their own dealings with Berkeley. They say they asked for, you Know, they specifically asked for the criteria that Berkeley was using in order to impose these time, place, and manner restrictions. And they kind of, they weren't really forthcoming with these criteria. So in as much as that's the case, I do think, yeah, I think that Young Americans for Freedom, I think that's what YAF stands for, Young Americans Foundation.

0:13:37 Thomas: Think it's Young America's Foundation, actually.

0:13:40 Andrew: You can tell that Travis and I are roughly of the same age because we both remember YAF as standing for Young Americans for Freedom, which is what it did way back in the late Cretaceous when I went to college. They changed their name in the past couple of years to whatever, the Young America Foundation or whatever.

0:13:59 Thomas: It's just Young America with an apostrophe foundation. It's kind of a weird. It's not a good name. But anyway.

0:14:00 Travis: You Yeah. But

0:14:00 Andrew: Yeah. Yeah. But it's the same YAFers that you and

0:14:07 Thomas: Oh, it is the same organization. Okay.

0:14:09 Travis: And I remember, yeah. Um, You know, and again, you know, I don't, I don't, uh, I also just kind of want to make sure that we're clear, I'm not, I'm NOT, uh, in any way supportive of uh YAP's platform per se, uh, but you know, uh, like I said, I am kind of a a free speech fundamentalist, if you will.

0:14:09 Andrew: I. Yeah. Yeah.

0:14:25 Thomas: Sure.

0:14:25 Travis: And I, you for me, it all goes back to just a little bit of personal stuff for me. It all goes Back to eighth grade when, you Know, I think it was my history teacher said, You know, the quote that's always, You falsely attributed to Voltaire, the thing about, I disagree with what you say, but I'll defend to the death your right to say it. And to me, that was just such a profound moral virtue that it just has kind of stuck with me throughout my life. And

0:14:38 Thomas: Yeah.

0:14:49 Thomas: Sure. Sure. Well, we are glad to accept that your motivation isn't that you agree with everything Ann Coulter says and you want her to be. That's where we get. I think it's totally worthwhile to talk about the legal issue, regardless of whether or not we agree or disagree with the speech itself. So, yeah.

0:14:55 Travis: Yeah.

0:15:05 Travis: So to summarize my position, basically, yeah, I do feel that the YAF lawsuit is similar enough to the case, the Sonnier versus Crane case, especially, I mean, up to and including completely superfluous and accusations and charges and harms that they're claiming. But I do feel that there are enough elements that are similar that it isn't unreasonable and it isn't that precious for YAF to have brought this lawsuit. In fact, I think it's probably good for us as a society to actually hear this issue out. And if I can just kind of close the thought that, you know, because I'm sitting here and I'm reading this stuff and I'm going over it and I'm thinking, why now? Why 2017? Why is this happening now? Because, you know, these colleges, insofar as I'm aware, have been imposing these security fees for a very long time.

I've heard of this happening over and over again, and it never really, it kind of seemed like janky to me. I'm like, what the heck? But it never really, I never really was like, well, that's totally unconstitutional. But, you You know, if you read, if you actually, in my opinion, if I actually read the cases, it kind of seems like it is. So why now? And I think it was Thomas maybe that made this point where he, he said, hey, he was talking to Andrew.

0:15:31 Thomas: Oh,

0:16:20 Travis: He goes, hey Andrew, know, because I think you were trying to make the point that that the imposition of the security fees were actually reasonable. And you were saying like, well, of course they have the fifty eight hundred dollars. Like how much does it cost to file this lawsuit? But I think You're making the case right there that it is easier. It is easier to simply pay the security fee instead of actually investing all of this time, energy and money into an actual lawsuit to challenge the constitutionality of these speaker fees.

0:16:47 Thomas: So that's your way of saying, like, that's why maybe this hasn't come up before, because people would just pay the fees.

0:16:52 Travis: Because You're absolutely right. The point you make is totally valid. Like, you know, do you want to spend tens of thousands of dollars on like this Supreme Court lawsuit litigation or do you wanna just pay the $3,000 to $5,000 security fee?

0:17:05 Thomas: Okay. So I think you summarized your position well. I think that to a layperson like me, it definitely sounds like there's some real concerns in there. So Andrew, do you want to come back? Why do you, if you still disagree, why do you disagree with that interpretation of the cases?

0:17:17 Andrew: Yeah. Scratch I know I do still disagree with the interpretation, uh, but I want to start off with the things with which we agree. Right, so Travis started off, his first sentence was, I think the government ought to protect speakers even if they're unpopular, and, uh, and obviously I agree with that, I think we both agree with that. Travis described himself as a, as a free speech fundamentalist, and and Thomas, you and I have bandied that about with respect to ourselves, or near fundamentalist. We frequently find ourselves, when we went on Ina's show, for example, we frequently find ourselves, I know I find myself as a U.S. lawyer, defending the U.N. system of free speech as being superior to the European model, right? For example, in which more aggressive bans on hate speech are in place. So we're in agreement with that. I think we're in agreement with respect to motivation, um, now let's talk a little bit about OA 65, uh, as, you mentioned, um, the point of this was in a C segment, uh, which is a user question, it's a more tongue-in-cheek, uh, segment.

Uh The part of my analysis, uh, that was sort of the motivation behind that segment was really much more how poorly drafted this lawsuit is, as opposed to the merits of the, the free speech argument, uh, and I stand by my insults of this lawsuit, um, and and I just want to be clear, so that's the, the spirit in which the, uh, you know, the sort of precious, uh, comment was intended, um, I, I don't think, uh, uh, that the Travis has any, uh, dispute over accounts two, three and four are, uh, you know, wrongly pled. I, I mean, there's a retaliation claim in there.

0:18:03 Thomas: Right.

0:18:53 Andrew: I mean retaliation, First Amendment retaliation claims, you know, are what you bring when, you know, you've been fired because you bring a Trump poster into your office. So, you know, yeah, yeah.

0:19:03 Thomas: So as an attorney, as an expert, you're looking at this lawsuit and saying this is poorly, this is a piece of garbage

0:19:08 Andrew: It's really, really, it's really badly drafted, right?

0:19:08 Thomas: Relative to, yeah, yeah, right.

0:19:11 Andrew: But there is a real question. It's why I'm really excited to do this episode, because what we said with respect to the First Amendment claim is, um, because these are, uh, fact-specific allegations, uh, that they may or may not, that two, three, and four are going to get dismissed out on a motion to dismiss. They're, they're improperly pled, uh, they, they don't make a whole lot of sense, uh. Count one, the First Amendment claim, uh, I think has some chance of surviving. But actually, as I started to research and and think about how I was going to talk about Travis's case and the position, feeling pretty good on a motion to dismiss on count one, too.

So let me talk a little bit about the sort of underlying legal regime. And I want to make my position clear, which is argument is there is no First Amendment prohibition on charging the legitimate costs of increased security on a college campus, okay? So that's my statement. And I think, Travis, what you've said is still, you disagree with that, right? You think that if the campus is passing on the correct costs of the security as fees to the speaker, that that still raises First Amendment concerns for you. Is that, is it a fair summary of your position?

0:19:46 Thomas: Yeah

0:20:30 Travis: Exactly. Position is that the problem, and I don't think that would be Yaf's position either. I think the problem is that Berkeley was not being forthright and clear about the criteria and specific details about their policy. Okay, so it's passing along the security costs per se. It's that they are simply putting a price tag on speech without allowing the students to better understand, and they're not being clear about why these costs are what they are. Okay.

0:20:32 Andrew: Okay what's okay um, I think as we go through we will see that that is not the factual allegations contained in the complaint, um, but before we get there, what I, what I want to do is, uh, and I am modeling this after the conversation that Thomas had a couple of weeks ago, uh, on, uh, Jordan Peterson, also on a free speech issue.

Um, I, I want to tell you and tell our listeners the, the authorities that we're looking at so that they can bring those up in real time. We'll take extra time. So if there's something to which I am referring you, I want you to be able to look at it. We can pause the recording. I mean, I don't want this to be like hurling elephants for you to feel like I'm throwing a whole bunch of stuff at you.

I really want us to sort of go back and forth. So got five things that I want bring to up to take a look at. A couple things related to yours. So the first thing is the complaint itself. I think we all have a copy of that. I'm going to link that in the show notes. The second thing I'd like you to pull up is the Supreme Court's decision in a case called Rosenberger versus Rector and Visitors of the University of Virginia. And let me tell you, you probably know this already because you've been Googling, but I want to emphasize it for our listeners.

The best way to get cases that I found is go to scholar.google.com, you click the little button that says case law, and then you just type in the citation. So I'm going to give you the citation, which is 515 US 819. You type that in on the search, it'll pull up Rosenberger v. Rectors of Virginia, will be the first hit. You click on it, bring that up. So that's the second thing, the thing. And and Rosenberger is a landmark case on the difference between a public forum and a limited public forum.

0:22:45 Andrew: The third thing is the Supreme Court's decision in Ward v. Rock against Racism. That citation is 491 U.S. 781. That is the landmark case on time, place, and manner restrictions. The fourth thing is the regulation that allows Berkeley to, uh, do what it did, which is, uh, this is misquoted in the lawsuit, uh, so it's, I think it's important to say it separately. It is five California code of regulations, so five CCR one zero zero zero four. Okay, that's the operative reg. Uh, the fifth thing, uh, is uh a decision by the U.S. District Court of Maryland in a case called Rock for Life UMBC versus Hrabowski, H-R-A-B-O-W-S-K-I.

0:23:33 Andrew: That site is 643 F sub second 729. And when we get to that, that is the exact same facts of this case. And it's why I felt confident in the way I did, but we'll get there. Sonnier versus Crane, your citation, that is 613 F third 436, um, I, will point out this is not, this is, it's not really crucial to the argument, uh, the bulk of that decision was subsequently, subsequently withdrawn by the Fifth Circuit. That citation is 634 F third 778. But the part that you care about, 4D, was not withdrawn. Nevertheless, you know, it, this is just sort of one of those things. It doesn't, I don't mean to cast any doubt on your argument, bulk of that opinion was, was withdrawn. And then the Forsyth County versus Nationalist Movement, 505 US 123, so you can pull up those, uh, those sort of seven things, um, so the, the question is, uh, does Sunny A say what you say it does, uh, does, and does Forsyth say what você does, and if so, uh, in what way are those cases different than this Berkeley case?

And my answers to that are, number one, those two cases don't say what you say they do, not in a way that I think you've been deliberately misleading, but I think there's just an important distinction. And number two, that there's a really important distinction between those two gases and what's happening at Berkeley that requires kind of a little bit of background. So the first background is, I want you to go to the complaint itself and scroll to paragraph 98.

0:25:09 Andrew: Okay. This is an allegation in the first claim for relief. It is the second substantive paragraph with respect to the First Amendment claim. And in this, the Berkeley College Republicans claim applicable venues for speaking engagements at Berkeley accessible for for use by BCR and YAF are designated public forums or limited public forums. So, uh, what's a limited public forum?

Um, actually, I mean, I'm going to go to the Rosenberger case, I don't think there's any, uh, dispute over this, but the legal standard, this is from a case called Demin versus Loudon County, uh, it's 342 F sub second 474, I don't think this is going to be controversial, if it is, stop me and let me know, uh, that says, uh, there is some confusion over the terminology used to describe this third category. The terms designated public forum and limited public forum are two names for the same forum. Using the terms designated and limited interchangeably, we explain that, quote, a designated public form can be opened only to a limited class of speakers or for limited topics. When the government has established a limited public form, the government is not required to and does not allow persons to engage in every type of speech. The government may be justified in reserving its forums for certain groups or the discussion of certain topics.

And you'll see a site in that case to Rosenberger versus Rectors of the University, the one I asked you to bring up, okay, uh, and what Rosenberger, uh, establishes is that a student activities fund of a public university, right, like YAF, like the BCR, is then with respect to the facilities that they're are seeking out, is a limited public forum.

0:26:43 Andrew: Let's turn to the Rosenberger decision. If you scroll, you can just type in 828. That's part two of the Rosenberger decision. And you'll see in little faded numbers on the left-hand side, this is how you figure out what page you're on, right? So you're literally, if this were a book, you'd be on page 828 of the volume 515 of the Supreme Court Reporter, uh, back in the days when we actually lawyers actually pulled books off of shelves to read cases. So big roman numeral two, uh, 828 to 829, so the big roman numero two, so here's what Rosenberger says, Supreme Court decision, 1995, it is axiomatic that the government may not regulate speech based on its substantive content or the message it conveys. And I'm going to skip over the internal citations.

0:27:29 Andrew: Let me know if you need to stop. Other principles follow from this precept. In the realm of private speech or expression, government regulation may not favor one speaker over another. Discrimination against speech because of its message is presumed to be unconstitutional. These rules informed our determination that government offends the First Amendment when it imposes financial burdens on certain speakers based on the content of their expression. When the government targets not subject matter, but particular views taken by speakers on a subject, the violation of the First Amendment is all the more blatant. Viewpoint discrimination is thus an egregious form of content discrimination. The government must abstain from regulating speech when the specific motivating ideology or the opinion or perspective of the speaker is the rationale for the restriction. Think the reason I wanted to start here is that seems to me to be the argument you're trying to make, that what Berkeley is doing is favoring one speaker over another and discriminating on the basis of viewpoint. Is that reasonably fair?

0:28:25 Travis: The abstract, maybe, but I think specifically, you know, again, we got to get right back to the original point, which is that of security fees.

0:28:35 Andrew: I will get to the security fees, I promise you, but I think it's sort of important. I will tell you, that's the argument that YAF is making in their complaint, right? We can look We can go back To the complaint, well.

0:28:47 Travis: Can look back to the complaint. I disagree. I disagree somewhat. But go ahead. Because I don't think, because I think they're making a number of different claims. And I think that might be one. But I think one of the one of the main ones they're is that the quote unquote high profile speaker policy at University of California, Berkeley is quote unconstitutionally vague. That seems to be, and that's a, a recurring theme throughout the lawsuit

0:29:01 Andrew: Well. Sure.

0:29:13 Andrew: We Let's get to that, but but that is in paragraph 101, paragraphs 99 and 100, right? Go back, the complaint say, "Defendants, acting under color of state law and according to a pattern practice, have enacted the unwritten or unpublished high profile speaker policy and engaged in viewpoint discrimination by selectively enforcing the policies unreasonable time, place, and manner restrictions on BCR and YAF, with the effect of marginalizing or banning the expression of conservative viewpoints on the UC Berkeley campus." And then 100 says the same thing, the policy is unreasonable, has a chilling effect on protected speech by subjecting events with high profile speakers to unreasonable time and venue constraints, and affording defendants, I love this, "absolute discretion to enforce these restrictions according to their whim and taste, or the demands of an off-campus mob." Um, not, not the typical language.

0:30:02 Travis: You quoting from the YAF lawsuit? Yeah,

0:30:02 Andrew: Yeah. I'm quoting from paragraphs 99 and 100 of the Af lawsuit, um.

0:30:07 Thomas: It Was right Before the part that you said, that's 101, high profile speaker policy is unconstitutionally vague, yeah.

0:30:07 Andrew: Right. Right. Right. Is Unconstitutionally Vague, the, immediately right to

0:30:07 Travis: Right, Immediately. That's in the second, I am sorry to interrupt you, but that's inthe second claim, right ?

0:30:14 Andrew: No. First claim for relief, paragraphs 99, 100, page 23 of the lawsuit, so We

0:30:22 Travis: The lawsuit. Okay, and then you got paragraph 101. Yeah,

0:30:24 Andrew: Are 101 unconstitionally vague, I agree, right. But the, but the previous two are talking about the the discrimination being on the basis of viewpoint, um, and and the reason that those allegations are in there is because, as we're about to see from Rosenberger, that's the allegation that's standard you have to meet in a limited public forum to prove a violation of the First Amendment. So now let's go back to Rosenberger.

0:30:48 Travis: Again though, I mean, isn't that just one of them though? I mean these are – there's not – they're making that claim but then they're also making the claim that the speaker policy is unconstitutionally vague.

0:30:56 Andrew: Right. And, and when, if you, if you want to just focus on the vagueness, if you want to concede that there's no viewpoint discrimination, then we can move on. But I wasn't sure where your argument is. That's sort of yet another concession that the lawsuit is misguided. So if you only want to talk about vagueness, we can talk about vagueness.

0:31:17 Travis: I'll be completely honest. I feel most equipped to talk about the security fee issue. Now, if you want to talk to your listeners about why you think that the other points of contention are not meritorious, then go for it.

0:31:22 Andrew: Right.

0:31:32 Andrew: Yeah, I'll go super quickly. But let me point out the primary argument about speaker Speaker fees, particularly in the two cases that you've cited, is not that the imposition of speaker fees was vague, but that the imposition of speaker fee was designed to effectively foster viewpoint discrimination. In other words, you were imposing speaker fees on speakers you didn't like in order to deter them from speaking. That's how you make that argument. So, it's why I'm a little bit confused that you're talking about wanting to only focus on the vagueness argument, because that doesn't really match up with the discussion about speaker fees.

0:32:12 Travis: Disagree, okay.

0:32:13 Andrew: Okay, so explain the basis for your disagreement. Here, before we do that, let me go to your cases. Okay,so first we're going to start with Sonnier versus Crane. Uh, like I said, everything except section 4D of that opinion was withdrawn, but fortunately for you, 4D is the only section you care about, um, that is page 447 to 448. If you've pulled that up on on Google Scholar. And section D in its entirety says, sunny a next argues that Sou speech policy violates the First Amendment because it gives the university the quote, 'sole discretion in determining the need for and the strength of the security at the public assembly or demonstration, and assess the cost of additional security on the sponsoring individual or organization.'"

0:33:00 Andrew: In response, the defendants assert that the fee has never been charged. Regardless of whether the fee is ever been charged, we agree with Sonnier. In Forsyth County v. Nationalist Movement, the U.S. Supreme Court struck down a virtually identical security fee provision that required organizations to pay for, quote, the cost of necessary and reasonable protection for assemblies that exceeds the usual and normal costs of law enforcement, end quote. The Forsyth County Court found that the security fee unconstitutional because, among other reasons, the regulation included no objective standards directing how to establish the level of the fee. Instead, the amount of the free was left to the whim of the administrator. Okay, so then we turn to the Forsythe County Court and, right,

0:33:35 Travis: Okay, right. So well, I just, I just kind of want to, right there, I'm sorry, I just want to pin that real quick, because that's what I'm talking about, it doesn't say you, you know, because you know you're trying to deter speech, you're favoring one speaker over the other, it's that, you know, there's no objective standards, so I'll throw that out there, right.

0:33:55 Andrew: But the reason that objective standards are important is because if you look at the Forsyth County case, this is 505 US 123, you click to that, start at 128, but what you can do is do control F and do a search for the word content, C-O-N-T-E-N. And you will immediately ascertain that the question in Forsythe County is, were the imposition of security fees based on content neutral criteria, namely the actual cost in investigating and processing the application, or were they based on the content of the speech itself? And in Forsyth County, they wanted to charge a $2 million bond for the Nazis to march through a Forsythe County National Park.

0:34:43 Andrew: And so the inference that the Supreme Court drew, correctly, in my view, is that imposing security fees above and beyond the actual costs of the security looks an awful lot like viewpoint discrimination. If I get to use the park and I only have to pay for my actual security costs, but when the Nazis come through, you require them to post a $2 million bond, it looks like you'd like me to speak and you don't want the Nazis to speak. Right, that's really the situation. So if you go back and look to the quotation, which I read from 4D of Forsyth, there's no Supreme Court case, none that I know of. And it would make no sense to me as a matter of law or justice that says imposing actual security costs on a speaker violates the First Amendment.

0:35:31 Andrew: What there is is imposing the cost of necessary and reasonable protection that exceeds the usual and normal costs of law enforcement is what has constitutional significance, significance, um.

0:35:43 Travis: Guess I just kind of disagree, because it kind of seems to me that the court there was saying that the problem is that it was simply too vague. Like the criteria they were using to impose these security fees were not objective.

0:35:55 Andrew: Right. Right. But the, but so for something to be unconstitutional for vagueness, that OA listeners will know, because we've actually, uh, did an entire, we did an Entirely Episode On This, uh, it has to give you no guidance as to how to conform your conduct, uh, to avoid falling under the ambit of the law, right, that's not the case. So the use of the term vagueness, I'm

0:35:59 Travis: Right.

0:36:10 Thomas: We've Covered That Wow

0:36:22 Travis: Vaguenes. When you say here, are you talking about Forsyth? I'm

0:36:24 Andrew: Talking about Sonnier and Forsyth, and as you think in the BCR-YAF lawsuit, it's not the case that the allegation is vagueness on its face. The allegation isthat the vaguenesse renders what would otherwise be a content-neutral and therefore appropriate time, place, and manner restriction into an inappropriate discrimination on the basis of content. Right. Because we do, I mean, I haven't gotten to Word versus Rock Against Racism, but I mean, you, I think from our Twitter discussion, you would agree that the general principle that government can restrict the time, place and manner of speech is right. Right. That's that's permissible. Right. Like in certainly in the abstract, to say, hey, look, you can't put in Coulter in a truck with speakers mounted on the outside and have her drive down the neighborhood at three in the morning at one hundred and ten decibels.

0:37:19 Andrew: Right, like that's classic time, place, and manner, so that so we only invoke the constitutional dimension if there's some, if that, if that turns out to not be a content-neutral restriction, right? Does that make sense? Okay. Okay, good, right. So the point of the vagueness is not just things are vague, therefore we strike them down, right. The point is, if they are so vague as to allow the Berkeley administration to engage in unconstitutional discrimination on the basis of viewpoint, that's where we have a problem. Does that make sense?

0:37:34 Travis: Uh yep Does that make sense? Yeah. I mean, with Forsyth County, the problem is not the fee.

0:37:57 Andrew: Right. Well.

0:38:01 Travis: I think this is kind of what you're saying. In Forsythe County, that problem is that they imposed a fee. The problem is there were no standards that were narrowly drawn, reasonable, and definite.

0:38:13 Andrew: That's not exactly correct, go to Forsyth County, and and you can go to Sonnier as well. And if you type in public forum, the first sort of major principle of disanalogy from a legal basis is, right, Forsyth County is talking about a park, right? That is a public forum. That's paragraph one of the Rosenberger decision. And Sonnier is talking about a public university with a public quad that is also a public forum. And so, in other words, these are places that traditionally have been fully open to participation by the public. And so there is, along with the sort of heightened standards of, you know, what the government can and cannot do in a public forum, there is also the, you, traditional standards that are associated with that, with respect to security and janitorial fees, right?

0:39:08 Andrew: Like when you go into a park and have your picnic, you've got to clean up after yourself, but you're not expected to pay janitoral services, even though the Parks Commission has to pay a janitor to go by and clean up these areas. In

0:39:20 Travis: You, but is that that's kind of included in what we talk about when we talk about a nominal fee for using a public forum, right.

0:39:26 Andrew: I'm going to say yes for now. Now, I mean, there's sort of more into it, but I'm not sure that that's going to be a distinction that makes a difference, right?

0:39:31 Travis: Difference, forum. I'm just making sure I'm clear on what you're doing.

0:39:33 Andrew: Yep. No, no, no. That's excellent. I just didn't. I was stopping myself. Thomas knows that. I'm like, oh, look, I'm about to go down a 10-minute rabbit trail.

0:39:40 Travis: I am not setting up any point. I Am just trying to figure out. Got it. It, yeah.

0:39:43 Andrew: Got it, yeah. So it's fair. Look, the word nominal was also put there because remember that, and again, I think this is another sort of key part of disanalogy. Like in the Forsyth County case, we were talking about the typical permitting fee was $3,000 and they wanted in, year, 1992, and they wanting the white nationalists to post a bond of $2 million, right? So the word nominal was also meant to connote like, hey, look, a couple thousand bucks, we're fine, but $2,000,000 is much more than you expect. Um, yeah.

0:40:16 Travis: Just to be perfectly clear for your listeners too, the court determined that a permit fee of up to $1,000 a day exceeded the constitutional threshold.

0:40:23 Andrew: Only because, and I, I want to be very, very clear on this and go back to the critical part of the citation. And this is what the, the holding that Forsyth stands for. Go back to 4D. This is on page 447 to 448 of Sonnier versus Crane. Yeah, in quoting, right? Right. They say in Forsyth, the Supreme Court struck down a virtually identical security fee provision that required organizations to pay for the cost of necessary and reasonable protection that exceeds the usual and normal costs of law enforcement. OK, so the important part is not just the magnitude, but that it was imposing a fee that went above and beyond what you would typically charge for the costs of law enforcement. And so there's absolutely nothing.

0:41:08 Andrew: And again, I mean, I know you found these cases. It was a little bit maybe unfair to make this challenge. I've researched pretty extensively. You will not find a case that says charging the actual costs of law enforcement any sort of constitutional implication, right?

0:41:25 Travis: Right, like what? Right, and that's not the argument I think I'm making, and I don't think that's the argument YAF is making either, but

0:41:26 Andrew: Okay. Well, it absolutely is the argument Yaffe is making, right? Then

0:41:33 Travis: YAF has made no It's absolutely not the argument Yaff is making, and if you think I would like you then I'd like you that might be the core of our discipline.

0:41:38 Andrew: Like you to, okay, So I'd to cite then the provision in the complaint where you think that's, where you Yaffe's making a different argument. Because I've read you the allegations of viewpoint discrimination. You read the allegation that it's unconstitutionally vague, the Only argument with respect to the vagueness is this lets Berkeley at a whim, in response to the demands of an off-campus mob, uh, move us to a different location and then also impose a security fee on top of us. That's the only mention in the complaint. You've got something else? Go ahead, read it me.

0:41:56 Travis: Vague, right?

0:42:14 Travis: Read it to me.

0:42:14 Andrew: So

0:42:14 Travis: Okay. So paragraph five, by imposing an unconstitutionally vague policy concerning so-called high-profile speakers and selectively applying that impermissibly vague policy to burden or ban speaking engagements involving the expression of conservative viewpoints, defendants have deprived YAF and BCR of their constitutional rights to free speech, due process, and equal protection. So they're not only making a First Amendment case there, they're making a 14th Amendment case, and there's the, what is it, the doctrine of incorporation or whatever that kind of, which conflates the 1st and the 14th? So I think that's what we're looking at there.

0:42:42 Andrew: So Yeah, no, Let me me stop you there, because we that that is No, no, I No, gotta stop you. We, you, you mentioned paragraph five. We got to talk about paragraph five. Okay, so the, uh, due process and equal protection, those are counts three and four. Okay, that, that has nothing to do with incorporation. Uh, it, has to do with the counts that we agreed were nonsense counts, so that, that's not helping you.

0:42:46 Travis: No, because that is... There's more. No, no, not helping you. Well, I don't think – I never agreed that it was a nonsense, Cameron. I'm just saying I haven't looked into it enough to be able to determine for myself whether or not it's nonsense.

0:43:05 Andrew: Uh, And Okay. You agreed you agreed they were beyond the scope of. Yeah, right. Fair enough. I

0:43:15 Travis: I won't put no words in your mouth.

0:43:15 Andrew: Want to put no words in your mouth.

0:43:16 Andrew: You agreed they were beyond the scope of this conversation, and they are. I mean, it would require me to go through another hour's worth of...

0:43:23 Travis: You So what I just said, I think that's completely what I'm talking about. It's the unconstitutionally vague policy concerning so-called high-profile speakers, because it is with that policy, that the unconstitutionally vague policy that they're talking about there, is, you know, this this thing where, you know, they want to have a, they want to have speaker come and BC, and excuse me, Berkeley just says, okay, that'll be fifty eight hundred dollars, please, and they're like, for what, why? And Berkeley's like, listen, man, fifty eight hundred dollars or no speaking.

0:43:25 Andrew: So, again, Let me jump in. You're eliding over the words you read, which is, and selectively applying that impermissibly vague policy. So again, look, you don't get a constitutional right just because something is vague, right? Like, where the constitutional dimension applies here is because the vagueness gives campus officials the discretion to impose it on an unconstitutional basis, to discriminate on the basis of viewpoint. That's what the burden is, right? Right. So, okay, good. Good. So we agree.

0:44:17 Thomas: I don't feel like there's really a disagreement there. I feel like you guys are kind of both saying the thing, but maybe maybe the way you divided it, Andrew, I, I don't know if that, that caused some confusion or something, but it seems like to me, from where I'm sitting, you guys are kind of saying the same thing.

0:44:21 Travis: Yeah.

0:44:30 Andrew: So I just want to be clear then. So the burden from a constitutional perspective is to show not just that it's vague, but to show that it has been selectively applied in a way that discriminates on the basis of viewpoint.

0:44:45 Travis: Viewpoint. Okay. Well, that's what they are alleging in paragraph 67. They say the high profile speaker policy is unconstitutionally vague and impermissibly affords defendants absolute discretion in identifying what events in which speakers are subject to the policy.

0:44:56 Andrew: Good.

0:44:56 Travis: So I think they are trying to make that case.

0:44:58 Andrew: Right. But I'm glad we've gotten to the agreement that their burden is not just to prove that it is vague, Their burden is to prove that it has been applied in a discriminatory way, right?

0:45:12 Travis: Yeah, and I think they do absolutely make that allegation in a number of places in the complaint.

0:45:13 Andrew: Awesome.

0:45:18 Thomas: I think you have been disagreeing that they make that allegation for some time and now it sounds like you're agreeing.

0:45:22 Andrew: Yeah.

0:45:24 Travis: So they're alleging that. And hey, it might absolutely be the case that their allegations aren't going to be backed up. But again, we get back into whether or not there's some kind of precedent for having a problem with speaker fees being imposed vaguely. And if you're imposing speaker fees vaguely without objective criteria, there absolutely is a First Amendment challenge there.

0:45:38 Andrew: Look, look. Right, right. No. And I want to back up your point here, which is, you know, wittingly or unwittingly, this is the distinction that I made at the beginning of the episode, which is to say, if they have alleged certain facts that would amount to a constitutional violation, and those facts are in legitimate dispute, then that would survive a motion to dismiss. And we've talked about on OA the significance of surviving a motion of dismiss. So I totally agree with you. I understand that you're not saying Berkeley definitely did this. The question is, do the allegations in the complaint raise a serious First Amendment? And now that we're ready to look at the allegation that security fees plus moving you to a different location constitute an impermissibly vague policy, the question is, as a matter of law, are those allegations, even if true, sufficient to constitute a First Amendment violation?

0:46:47 Andrew: Do they rise to the level of viewpoint discrimination, which is what's required by the Rosenberger decision? And in this case, what I want you to do is I want to look to the third case that I asked you to bring up. This is Rock for Life UMBC versus Hrabowski, 643 F sub second 729, 2009 decision by the District Court of Maryland. So equally, right, not binding, but persuasive authority. And what you will find in the Rock v. Life case is precisely what happened on the Berkeley campus, which is to say that UMBC had a policy that allowed them to move controversial speakers to different locations on the campus and also to impose the security fees that were associated with policing the event.

0:47:42 Andrew: Uh, and in this case, we had the group Rock for Life, a which sounds like a terrifically hip pro-life group that brings like this huge display of, like, you know, aborted fetuses. And, you know, I mean, we've all seen these, these sorts of pro-life, uh, displays. They, Rock for Life, sued UMBC, see, uh, and, uh, and lost.

Um, and so I want to bring you to, it's about three quarters of the way through, uh, we're at page 747, uh, on the left hand side, uh, you will see, uh, at 747, uh, that the plaintiffs, that is Rock for Life, uh, were, uh, to be charged with the campus security for the event. They declined to pay it in that case. And, you know, in a slight, uh, disanalogy, the university was like, okay, well, if you're not paying for it, we're not going to give you, uh, any security. Uh, but, but again, it was the same university policy, uh, that gave them absolute discretion to to move the event, uh, and to impose the actual costs, security costs, associated. And, uh, if you look, uh, immediately at the first full paragraph after 747, judge says, I find that the defendant's actions, that is UMBC's action, were taken without reference to the content of the the regulated speech, uh, that is narrowly tailored.

I've skipped through, uh, Ward versus Rock Against Racism, because I think we're in agreement, but, uh, but that this is, these are the requirements to show you have a legitimate content neutral time, place, and manner restriction, uh, uh, and then the case says, uh, safety and security are legitimate interests of a university. A college has a legitimate interest in

0:49:15 Andrew: Preventing disruption on its campus. State's interest in the protection of the safety and convenience of persons using a public forum is a valid governmental objection. Furthermore, consideration of a forum special attributes, in this case that was the size of the room, uh, and whether it could be properly secured against, uh, protesters who were, uh, you know, potentially disruptive, as they were bringing these, you know, dead babies on a stick into into the UMBC, uh, is relevant to the constitutionality of a regulation, since the significance of the the governmental interest must be assessed in light of the characteristic nature and function of the particular forum involved. Um, uh, they say plaintiffs contend that relocation of the, gap, is the babies of the display, was not narrowly tailored to serve these governmental interests. A regulation of speech is narrowly tailored when it does not burden substantially more speech than is necessary to further the government's legitimate interests. As stated by the Supreme Court, restrictions on the time, place, or manner of protected speech are not invalid, valid, simply because there is some imaginable alternative that might be less burdensome on speech.

0:50:15 Andrew: The validity of time, place, or manner regulations does not turn on a judge's agreements with the responsible decision maker concerning the most appropriate method for promoting significant government interests, or the degree to which those interests should be promoted. So, in other words, merely has to be a reasonable restriction, the, it, perfect restriction. And so then the judge says, I find as a matter of law that defendant's actions in this case were narrowly tailored to serve UMBC's significant interests. Plaintiffs were not excluded from delivering their protected speech on the UMBC campus at the time and manner of their choosing. Plaintiff's, plaintiffs were only restricted from presenting their large exhibit in their preferred location on campus, but were permitted to present the exhibit at another location, the North Lawn, where plaintiffs could still have access to their intended audience, but where defendant's size and safety concerns would be alleviated.

0:51:01 Andrew: Defendants' actions in relocating the display were directly related to protecting their interests in safety, visibility, and security. Know, it's kind of a new case, let you sort of stop and think about it. But the way in which I would summarize this is multiply, number one, that Berkeley classrooms, as administered by an outside organization like the Berkeley College Republicans, are a limited public forum, not a traditional public forum, uh, like a park, and so, uh, therefore they're distinguishable from the standards in Sunny A and Forsyth County number ahead, but

0:51:36 Travis: I just wanted to point out, though, that I mean, and maybe you just made this point, but I just want to point it out that Sonnier versus Crane. I mean what they did is they took that Forsyth ruling and said that that applies to universities as well.

0:51:48 Andrew: No, right, so go to, go to Sunny A and Type it. No, no, go. Go, go to Sonny aand and type in, in public forum. And you will see that this is page 447. It's right before section D that says, Sonnier is speaking on a public university's campus. Therefore, we find the cases concerning permit requirements to speak in a public forum more instructive than Watchtower. In Sonnier, the campus itself, because it was an outdoor quad and it was typically used, uh, by the public, uh, that that was held to be a traditional public forum, like the park, right, something like Berkeley's campus. And the classrooms, as administered by the Berkeley College Republicans, were held to being a limited public forum. That was the distinction, that's the reason we went through the Rosenberger decision, uh, that there is, uh, more, this would actually, I, and it might seem counterintuitive,

0:51:51 Travis: Sonnier. Yeah. Go to Sonnier and

0:52:45 Andrew: But like, if Berkeley had an outdoor quad in which members of the public outside the Berkeley campus typically spoke, and typically spoke without having to pay any security fees, then this would be a different case, right? But we're not talking about that. We're talking about Berkeley classrooms, which are reserved for groups that are brought in by groups like the Berkeley College Republicans, over which the school has established a limited public forum. I agree, like it's a tough distinction. Yeah.

0:53:15 Thomas: Does that sit with you, Travis? Does that make sense?

0:53:18 Travis: I don't know, man. I don't think so. I mean, I'm looking through it and I'm kind of trying I'm trying to scan through it here, and it really seems that that Sonnier versus Crane makes it clear that they consider a university to be a public forum. I mean, can you can you in Sonnier v. Crane, can can you walk me through again one more time? Yes,

0:53:21 Thomas: Well, No, but because the, I thought it's because he

0:53:37 Andrew: That, that that was the point

0:53:38 Thomas: Said they're talking about the quad, right? Right. They're talking about an open quad, which is more like a public space. But in Berkeley, we're not talking about that. We're talking about classrooms or auditoriums that are not public, open public spaces.

0:53:38 Travis: That was the point.

0:53:38 Andrew: Right. Yeah, right, that are that are limited public forum.

0:53:51 Thomas: Limited public.

0:53:52 Andrew: That's right, so yes, Sonnier is a public forum, Berkeley is a limited public form, it's it's very very, and I remember, I read you, that's the allegation of the BCR itself, right? That Berkeley is a limit, yes.

0:54:03 Thomas: Oh, so BCR acknowledges that it's a limited public. Yeah. So in their own lawsuit, they're not claiming it's an open public space Are

0:54:05 Andrew: Yes. Yeah. Right. Right And.

0:54:10 Travis: Right. And different. And,

0:54:11 Andrew: Different and Look, and and the important thing on that, remember, right, and this, I mean, I even made this, I'm kind of proud of myself for being able to make this in 140 characters in a tweet, right? The question is, remember we go back to the core of what you need to prove is discriminatory treatment on the basis of viewpoint discrimination, right?

And so you can begin to start inferring that there's some viewpoint discrimination coming on if nobody is required to pick up the costs of janitorial and maintenance and electrical and security, uh, when you come and speak on the quad, and now all of a sudden Ann Coulter comes and speaks on the squad and you get hit with a bill, like, I would agree with you in that case, I would say, like, hey, look, that, yeah, people come by and you don't get hit what these costs, and you're imposing them selectively on on what looks like conservative speakers, but where you have the, the disanalogy here is in these classrooms, Organizations are typically charged all of those fees, and the fact that those fees may be larger because Ann Coulter is more popular or is saying deliberately inflammatory things that increases the need for security, the argument that they're trying to make, is you're discriminating against us on the basis of content.

And my point is, so long as they're charging everybody the same, they're treating everybody the same way, right? They'd have to charge the same dollar amount. So long as the motivation is the same, then there's no viewpoint discrimination. And even if the facts are true, there's nothing that rises to the level of a First Amendment violation. Does that make sense?

0:55:51 Travis: Mean, I mean, your words make sense. They part, but I disagree. I mean the I'm kind of looking over this, and it says, nonetheless, with respect to – this is in Sarnia versus Crane. Nonetheless, with regard to persons entitled to be there, the Supreme Court's cases leave no doubt that the First Amendment's rights of speech and association extend to the campuses of state universities. And it includes – classrooms.

0:56:13 Travis: No, no, it includes that too, the whole thing, the full thing. Not just quads, the entire thing.

0:56:11 Andrew: Right. Campuses, not classrooms. I I, I But you, you, I, you can say that, but I mean that's not what the law says.

0:56:26 Travis: Says I'm on page 66.

0:56:28 Thomas: You saying that the word campus means it includes?

0:56:30 Andrew: Um, I There's no page 66. Uh, this is 613 F third 436, so I don't know.

0:56:36 Travis: Go with a university's mission is education, let you

0:56:40 Andrew: Okay. So you do know you're in the descent, dissent now, in Sonnier, right? The dissent is not law, like that's the part that lost. I, I'm sorry, I'm not, I'm trying to let me be clear, like I'm not trying to be a smart ass here right, like that that the

0:56:43 Travis: Sonnier, well, let me be clear like I'm not trying to be a smart ass here, right, like that quoting right, aren't they quoting, they're quoting the, yeah, interpretation of the Supreme, because because I'm just I'm trying to make sure I'm staying on the right side of precedent here, and that's the Supreme Court case they're quoting.

0:56:56 Andrew: Yeah, they're, they're quoting from their interpretation, right, they're in their interpretation of the Supreme Court in in Widmar, Right, but it's as applied to the specific right. You were saying, Sonnier, stands for the proposition that the entire campus is a public forum. And I'm telling you, the part that you've cited for that as a holding is from a part of the case that is the dissent. That's not the law, right? And that what stands, the proposition, but

0:57:30 Travis: The proposition- Right, yeah. They're still quoting the Supreme court case, aren't they?

0:57:32 Thomas: Yeah, but they're saying the Supreme Court case means this and they lost.

0:57:36 Andrew: And I would add, Widmar v. Vincent is a 1981 Supreme Court case. And so even if they were quoting it correctly, I quoted you Rosenberger versus Rector, that's 515 U.S. 819, that is a 1995 Supreme Court case. So in other words, like the law is, I mean, we can continue, but I'd sort of like to move forward. Like the law ist really, really clear that when you have an organization that is bringing speakers to a campus in classrooms, that that's a limited public forum, right? I honestly didn't expect this to be a point of contention. If you want to

0:58:19 Travis: You want to believe that they're not. Like I said, like I said to begin with, kind of so we're arguing two different things. It sounds like I'm talking about security fees. You're talking about time and place. Is that is that fair? I'm saying

0:58:30 Andrew: I'm saying that security fees are part of the time, place, and manner.

0:58:30 Thomas: They're one in the same.

0:58:33 Travis: No, they're not. No, THEY'RE NOT. They're not one and the same. It sounds Like we're talking About two different Things here. And what I'm Talking

0:58:34 Andrew: Where's your evidence for that? No, no, no. Wait, wait, wait. In what way? You've argued that security feeds are not time, space, and matter restrictions. They're very clearly... Okay.

0:58:48 Travis: Let's be honest. That's not what I say. I said that you're talking about time and place, and I'm talking about manner. So we're talking about two different aspects of this equation. And you're wanting to talk about the Berkeley College Republicans and Yaff's claim that having to move the venue and do all this other stuff was unconstitutional. And, you know, frankly, I haven't obviously done as much reading as you have on that. What I've done reading on is the actual imposition of security fees. And what's really interesting, I mean, if you want to talk about old stuff, what's Really interesting is that in a letter to I think it was Milo Yiannopoulos back in January, Berkeley, the Berkeley themselves, like they when when they were trying to justify their security fee policy, they were citing Cox versus New Hampshire.

0:58:50 Andrew: No?

0:59:39 Travis: Are you familiar with that? No. Cox versus New Hampshire is from 1941, and it basically does kind of come down on Berkeley's side. It does say that, know, that they can impose these security fees. However, that does it to me. It does seem to have been, if not overturned, you know, refuted by Forsyth County and then later Sonnier versus Crane. So, so, Berkeley is basing their argument on a Supreme Court decision that has since been, uh, refuted, if not straight up reversed, by the court itself.

1:00:13 Andrew: Okay. Okay. Well, as I said, I'm not familiar with the case. I'm not basing my argument on that. And

1:00:13 Travis: Okay. That, uh, but I am, you know what I'm saying? Like, so that's right, we're talking about two different things. Like, it kind of sounds like we It's, I'm sorry to interrupt you, but let me just finish this one thing. It sounds like, you know, we each have our own sort of confirmation biases here. And so, you know, you feel that your strongest case for saying that the lawsuit is silly is by getting into this business about, you know, the time and place restrictions. And I'm saying that the lawsuit has merit based on the security fee kind of angle. Do you think that's kind of a fair characterization

1:00:19 Andrew: Right, but so, okay.

1:00:55 Travis: Of our differences? I your side.

1:00:56 Andrew: I, know, I think you've fairly described your side. Distinction in constitutional law, right? You've said, I'm looking at time and place, and you're looking at manner. But the reason that the phrase is time, place, and manner is because all of those, so long as they're content neutral, are evaluated by the same standard. So I am going to have you turn, I thought we were going to skip over it, but apparently it's important, to the Ward v. Rock Against Racism case. This is 491 U.S. 781. It was one of the ones I asked you to bring up at the beginning. And if you turn to 791,

1:01:31 Travis: 791. Let me ask you, Andrew, let me just start with it. Does it talk about security fees?

1:01:31 Andrew: Yeah. Sure. No. We just, we went through security fees.

1:01:38 Thomas: Let me ask you, let me try to cut through this because this is not... We're not... It sounds like... Travis, do you think that it's unconstitutional to charge any security fees to speakers?

1:01:42 Andrew: Yeah.

1:01:42 Travis: Yeah. I think it's unconstitutional to charge security fees without objective criteria. And that's not my opinion.

1:01:51 Thomas: So, then we just have to look at

1:01:53 Travis: That's the Supreme Court's opinion.

1:01:53 Thomas: The... Yeah, as long as they're using... So, Andrew's established, it has to be unconstitutionally vague. And so, they have to be charging... It's not enough to say these fees you're charging are are vague. You have to say you're using vague criteria to charge significantly different fees based on content. So you have to prove not just that, okay, because it was Ann Coulter, the fees were higher. Like what's going on? You have to prove that they're only targeting the content. And the easy counter to that is, well, no, the feeds are based on the fact that Ann Coulter requires more security. And by the way, this is where we should point out, Berkeley wasn't even going to charge charge any fees for Ann Coulter. So they were going to cover security for free. The 5800 was for Horowitz.

1:02:41 Thomas: So a different talk for Ann Coulter. They offered several different times and places that would work totally fine. They said, if you do it at this building at three o'clock, we will provide all the security. They didn't like that the talk had to be done at three O'clock. So there were no good.

1:02:57 Travis: Um, yeah, because, yeah. Because, you know, that at that time there were no, everyone would have been gone because, uh, the semester would have ended.

1:03:04 Thomas: They, they offered them several different types, but, but so, so how do you, find that? So how do you find that claim? The whole, when we're talking about security fees, they weren't even going to charge for Ann Coulter's security.

1:03:15 Travis: Different, there are three different speakers. There are three different incidents that the lawsuit encompasses the Milo thing, the Horowitz thing in the, in the culture thing.

1:03:20 Thomas: Horowitz, Coulster, is the Milo one in there? Okay. I don't remember what, did they allege, was there a dollar amount in the fax for that? Does anybody?

1:03:24 Travis: Yes. Yes, no,

1:03:25 Andrew: Yes, it. No, No, the only, there are only two monetary allegations uh, in the complaint.

1:03:30 Thomas: No. Yeah, that's what, yeah. Okay.

1:03:34 Travis: You talk about I mean you kind of like throwing all these things on top of the security fee issue, but I just don't see it. You know, I'm in again when you get back to Sonnier versus Crane, their problem was a vague policy at the sole discretion of the university.

1:03:49 Andrew: Again, I mean, I'm just gonna let the record speak for itself. I mean, I've, I've read 4D twice on the air. I don't think I need to read it again. That's not what the case says, uh, where they describe the, the case that you are citing, right? They say, uh, the U.S. Supreme Court in Forsyth versus County versus Nationals move, the new Supreme Court, struck down a virtually identical security fee provision that required organizations to pay for, quote, "the cost of necessary and reasonable protection for assemblies that exceeds the usual and normal costs of law enforcement." So, uh, I mean, I just sort of go back to my position, uh, I would be with you, Thomas, would be, be with you if, uh, everybody else gets to use the campus for free and all of a sudden Ann Coulter has to pay for security, that's not the case here, okay, I mean, it's not right.

1:04:38 Thomas: So let's argue that. So let'S

1:04:39 Andrew: So

1:04:39 Thomas: Argue that does that make sense, Travis? Because I, I, I also agree with that. I would, if that were the case, if only Ann Couture had to pay fees or only a conservative had to pay fees, we would agree. But do you see that where that's not what the facts say?

1:04:53 Travis: I mean I couldn't tell you. I mean charged fees for a wide variety of speakers, right.

1:04:57 Thomas: Sorry, it's not just charged fees. It's charged fees over and above what can be justified by actual security costs.

1:05:05 Travis: And that's the problem, is that we don't know what can be justified by whatever security costs, because the, because the, hang on. Because the policy, because the policy is unstated and vague, and that's their, that is what they're saying. They're saying that there's no objective metrics, there's... there's no way for a student, uh, for a student group to sit down with this policy in front of them and say, should we invite this person? I don't know how much is it going to cost us, I don't know. Let's look at this objective criteria, let's look at these objective criteria that have been handed down.

1:05:11 Thomas: Does 57,000... Go ahead, go ahead.

1:05:34 Andrew: Okay.

1:05:33 Thomas: Well, actually there is. So what they do is they work with the administration. The administration goes to the police, the Berkeley, the BPD or whatever, and the UCPD. And they say, how much is this going to cost us? And they come back at them with the number. That's the process they go through.

1:05:34 Travis: Right. Well,

1:05:34 Andrew: They

1:05:47 Travis: That's Ah, that's what takes us to paragraph 22. Andrew kept referencing paragraph 22, um, what paragraph 22 does? And what they're trying to do with paragraph 22 and 23, and paragraph for, 22 basically cites the uh, California code that gives universities the the ability to set reasonable time, place, and manner restrictions. But the point of paragraph 22 is to also say that that, um, that the university designates certain individuals, um, to be, I forget the exact language, but to be basic agents of the university, and so, And so then in paragraph 23 they talk about who these agents of the university are. And those agents are the responsible parties at the University of California, Berkeley Police Department. So what they're alleging, I think, there, what they're trying to set up, what they're trying to create is a situation where the Berkeley PD is still a part of Berkeley, ergo Berkeley has sole discretion.

1:06:21 Thomas: But

1:06:45 Andrew: You're misreading paragraph 22. I don't think it's important. Paragraph 22 is actually misquoting, because again, the theme is how badly written this lawsuit is. They are misquoted the regulation that I asked you to pull up in one of those windows, which is 5 CCR 100004, which is approval for activity on the University of California property. And this is the California state reg that gives Berkeley the authority to do what they did. And it says, approval for gatherings or demonstrations, no non-affiliate, and I can show you it's paragraph 12 where BCR says that they're a non-offiliate. They allege that specifically in the complaint. No non-affiliate shall hold or conduct any demonstration or gathering in or upon any university property without prior approval from the designated university official, those are the people you talked about in paragraph 23, and subject to such requirements regarding time, place, and manner as the designated University official may impose. Now, I've got my question. My question for you, Travis, is do you think that regulation, Section 100004, is unconstitutional in any way? Unconstitutionally vague, violates the First Amendment. Do you think that that regulation is unconstitutional?

1:08:03 Travis: It unconstitutional on its face? No. Is it possible to adhere to that regulation while doing so unconstitutionally? Yes.

1:08:12 Andrew: Think that's interesting, because you and the BCR reached, I think then, the same result, which is the lawsuit, while misquoting this section, does not say this regulation vests too much power in the university. And I think the reason they say that it doesn't vest too much power in the university is the reason you hesitated in giving that answer, in that there's no problem with saying that the designated university official may set requirements regarding time, place, and manner, so long as, as you point out, they don't do so in a way that discriminates on the basis of viewpoint. Point, so I, I mean, I I sort of feel like we've come kind of full circle on that, um, yeah.

1:08:52 Travis: No, I think, you know, I make a reasonable case as to why all but the sort of first very likely might be thrown out. I think the court cases that you cited, from what I've read, I Mean, obviously, this is all new stuff So I'm just kind of playing catch up here. But based on a quick perusal of the different cases you said, as far as like, you know, Berkeley asking for a different time and a different place, I think they are probably that's probably going to pass constitutional muster or whatever. I think they're probably within their constitutional right to do that. But again, you know, I think I

1:09:30 Thomas: You think that the $1 amount referenced, which is $5,766, the $0.01 amount that they were asked to charge, that is so over the top of what would be fitting for security that that will be unconstitutional. Is that really what you're saying?

1:09:47 Travis: I think with I think as with a lot of cases that go before the Supreme Court and, you know, this might be one of them eventually.

1:09:53 Thomas: This will not go anywhere near the Supreme Court.

1:09:55 Travis: Very well. Very well, my you know what might be fun is once once this case is, you know, moves moves into its next phase, whatever that is, we hop back on and And, you know, maybe when one of us eats crow, I don't know, it might be, you know, you might very well be me. But I do, you Know, if this case moves forward, which I think it should, you know, I think I think like this case with a lot of Supreme Court cases, it's not exactly about the case, you Know, that the individuals involved in the case per se, but rather a larger issue that's going to have an impact on the broader society.

1:09:55 Andrew: Sure.

1:10:01 Thomas: Instantly dismissed? Sure, we will take that bet.

1:10:25 Thomas: Hold on, but I need to get your answer on this. We've already said if this case alleged, and if it were the case that only Ann Coulter, Milo, whatever, had to pay $100,000 for security, we would agree with you. But the facts of the case actually do matter. And the reason this will get dismissed is the only dollar demand in security that's in here is $5,766 for Horowitz. And does that seem to you like an unconstitutionally unreasonable security fee for a speaker?

1:10:46 Travis: To me It seemed to me Sonnier versus Crane makes it fairly clear that the actual dollar amount is immaterial, regardless

1:11:07 Thomas: No, no. It says it has to be over and above what could be reasonably justified for security costs. So Sonnier versus Crane. By the way, Sonnier vs.

1:11:16 Travis: Of whether the fee regardless of

1:11:18 Thomas: Crane

1:11:18 Travis: Whether the fee has ever even been charged, we agree with Sonnier. So,

1:11:19 Thomas: Is talking about open public spaces, first off. And this case case, BCR, in this actual case, they don't refer to Berkeley as that. So it's two different things. Even ignoring that, this talks about, San Diego versus Crane said over and above. Do I have that right, Andrew? It said over. So if so, that was saying, okay, yeah,

1:11:23 Travis: Yeah, I'm Sorry, can you I'm sure you did it before, and And you did it very well. But can you direct me to where in Sonnier versus?

1:11:49 Andrew: This is, this is section 4D, uh, it's beginning of page 447, uh, in Forsyth County v. Nationalist Movement, the U.S. Supreme Court struck down a virtually identical security fee provision that required organizations to pay for, quote, the cost of necessary and reasonable protection for assemblies that exceeds the usual and normal costs of law enforcement, end quote.

1:12:12 Thomas: Right?

1:12:14 Travis: End quote.

1:12:14 Andrew: Right. And it, uh,

1:12:15 Travis: Okay. I would take you to the previous paragraph, where it talks about Sonnier saying that the speech policy was a violation of his First Amendment because it gives the university, University, quote, the sole discretion in determining both the need for and the strength of the security. So when it comes to the normal

1:12:25 Andrew: Right, that's their argument, that that sentence begins, Sonnier argues that, that paragraph begins, Sonnier argues that's summarizing the argument that they made, right?

1:12:32 Travis: Cost of law enforcement, the university is not permitted to determine that at their sole discretion.

1:12:42 Thomas: Yeah, that's not law.

1:12:45 Travis: Made. Right.

1:12:45 Andrew: We, we know what they argued, no, no, you're missing the, you read, no, no, no, stop, stop, stop. You read a sentence, sentence two says, in response, defendants assert that the fee has never been charged. Okay, Okay, so that's a standing issue. I'm not going to go into it. OA listeners know we've done multiple shows on standing. Then sentence three says, regardless of whether the fee has ever been charged, we agree with Sonnier, meaning we agree that they have standing, not we agree that it violates the First Amendment. Like, that's just clear.

1:12:45 Travis: And the paragraph ends with, we agree with Sonnier. No, it. Yeah. No, That's just exactly what it says. They said, Sonnier argues that SOU speech policy violates The First Amendment because it gives the university the sole discretion in determining both the need for and strength of the security at the public assembly, et cetera. Regardless of whether the fee has ever been charged, we agree with Sonnier. I mean, yeah, I mean, maybe that's the difference between like a lay person, me, and you. I mean, you, yeah, on that point you could very well be right, and maybe in legalese it means something completely different than what it actually says. So entirely possible you're right.

1:13:52 Andrew: So, but, Me be fair to Travis here, because in looking at it, I want to read it in the light in which he's reading it, because I think it's not unreasonable to take that view. The allegation regarding sole discretion, right? It gives the university sole discretion in determining the need for and the strength of the security. It is then explained with the citation to Forsyth County in paragraph number two, right. So what makes it a virtually identical security fee provision is that it requires them to pay for the cost of necessary and reasonable protection that exceeds the usual and normal cost of law enforcement. That's the direct quote from the Supreme Court.

1:14:39 Andrew: That's the standard that they're applying. That's the distinction that's been made. And again, I want to point out the reason we've been focused on Sonnier, which is, as I've emphasized, it's the only case that holds this, and it's of dubious validity.

1:14:51 Thomas: And it applies to an open public space, by the way. It'S not the same thing.

1:14:53 Andrew: Right. It the

1:14:53 Travis: Validity. The reason we're not,

1:14:55 Andrew: Reason we're not. It's, it is, look, I'm not gonna get into that argument.

1:14:58 Travis: I'm not going to, you can

1:14:59 Andrew: You can you can, you can make noises, but that's not, that's fine.

1:15:00 Travis: Make noises, but that's not, that's fine.

1:15:03 Andrew: That's fine, do what you want. Read the, um, the, read the Rock for Life UMBC decision, right. The reason we're not spending time on that is because it is very, very clear that, uh, precisely this issue, when you're talking about security fees that are related to the usual and normal costs of law enforcement, in a limited public forum, that those are plainly constitutional. That's why we haven't been spending time on the Rock for Life UMBC decision.

We've been going to your decision because, as I said at the outset, I get why you picked up on this. I'm pleased that you went and did the research, but I'm trying to show sort of the the critical parts of disanalogy. Um, I think we've, I think we've been through that, right?

Like, we know Sonnier is a Fifth Circuit case, it's not binding, the portion of of Sonnier that would be binding, uh, that would be persuasive, uh, on a California court, which is what's going to hear the BCR lawsuit, is their analysis of Forsyth County, uh, and the quotation from Forsyth County, which is a Supreme Court case which is binding, and that Supreme Court case is expressly contingent upon requiring organizations to pay costs that exceed the usual and normal costs of law enforcement, so parsing out, parsing out the specific fact, I, I don't want to persuade you anymore on what happened in Sonnier because a court in California is perfectly free to be like, yeah, don't know what the hell the Fifth Circuit was up to in Sonnier, uh, don't find that persuasive, what they will will find persuasive is Forsyth County and the, and the word, like, I just, I don't know how you get around those words.

1:16:41 Travis: Right. Well, if California does that, if Ninth Circuit does that then we We have like a split circuit or whatever, and off we go to the Supreme Court. And then I tweet Thomas, and I'm like, what did I say? But in that same paragraph, I do want to also point – you are on record.

1:16:50 Thomas: No, this is not going to Supreme Court. Do you know? I need you to answer this question.

1:16:57 Travis: You are on recorded, Thomas. You are On record.

1:16:57 Thomas: I need you to answer this question. Is the $5,700. I already asked it before. I would like an answer to this. Is $5.766 over and above what seems reasonable for security costs? Because that's the wording that is in the Supreme Court case that Andrew read.

1:17:00 Travis: Okay, I'll answer the question. Okay. Well, Well, here's the wording in the Fifth Circuit saying that I keep citing. It says, you know, after – so the next sentence after the quote that Andrew keeps quoting, It says the Forsyth County Court found the security fee unconstitutional because, among other reasons, and I'm sure those other reasons are the ones that Andrew's talking about, but it says, among others reasons, the regulation included no objective standards directing how to establish the level of the fee. Instead, the amount of the security was left up to the whim of the administrator. So that's the problem.

1:17:44 Andrew: All right. I mean, I think, I Think we've, I, think we've run this to ground, dude.

1:17:47 Thomas: Okay, so let me ask you this, Andrew. Because we have outstanding questions, so it makes no sense to end an episode with an outstanding question. Is, uh, is sole discretion is Is it unconstitutional for Berkeley to have sole discretion over what the security costs are? Yeah.

1:17:53 Andrew: Okay.

1:17:57 Travis: And

1:18:03 Andrew: And what I would say is the reason I read five CCR 100004 is at Berkeley does not have sole discretion to determine what the fee is. What they have is they may impose requirements regarding time, place, and manner, so long as they do so in a manner that is reasonable and viewpoint neutral. So, okay.

1:18:26 Travis: Well, that to me sounds like a distinction without a difference. Because it sounds like they do have sole discussion. I mean, who else has discretion?

1:18:33 Andrew: So is right. So what you would do as you would objectively evaluate it, right, so So let's go back to the Ward v. Rock Against Racism case. You said, doesn't mention security fees, so don't quote from it, but I think it's important. This is 491 U.S. 781. I'm at page 792, 791 to 792. It's part 2A of the opinion, which is the principal inquiry in determining content neutrality in speech cases generally and in time, place, or manner cases in particular is whether the government has adopted a regulation of speech because of disagreement with the message it conveys. The government's purpose is the controlling consideration. A regulation that serves purposes unrelated to the content of expression is deemed neutral, even if it has an incidental effect on some speakers or messages, but not others.

1:19:20 Andrew: Government regulation of expressive activity is content neutral so long as it is, quote, justified, and that's in italics, without reference to the contents of the regulated speech. And then that is the standard. It's cited repeatedly in Rock for Life, UMBC versus Hrabowski. All of this, right, you keep coming back to there's unfettered discretion. And what I've said is the only thing that matters in, quote, unfetterd discretion is whether that discretion is applied in a way that discriminates on the basis of viewpoint. Point And the answer to who checks that is the courts check that, right?

Like you look at it and you would say if Berkeley has a pattern and practice of liberal speakers get to come in and get free security, conservative speakers come in and get charged millions of dollars, then it's really, really again we would be out there on the front lines going out, Berkeley has a discriminatory speech policy, but if that's not the case, then there's no first amendment implication. And the crucial thing here is that there aren't even allegations, factual allegations sufficient to survive a motion to dismiss that that happened, right? We've started to read, there are conclusory allegations, but there's nothing that would survive a modern federal court standard on a motion to dismiss that would allow a reasonable finder of fact to say this policy is being applied in a discriminatory manner. Other than them saying this policy has been applied

1:20:53 Andrew: In an discriminatory matter. And one of the hallmarks of a motion-to-dismiss is that conclusory obligations contain no merit. Um, Not

1:21:00 Thomas: So I got a way we can close this. First off, Travis, you convinced by that or no?

1:21:04 Travis: That there is a strong case to be made for dismissal on the 14th Amendment business, but I'm not at all convinced that that there isn't a reason to believe that that there isn't a strong case on the First Amendment?

1:21:13 Thomas: So here's what we should do let's all make some predictions, and then everybody can evaluate what happened and we can see what happened. So, if if I were listening to both of you guys and interpreting this, my prediction is this doesn't survive a motion to dismiss. So, in this court, the case is dismissed. What's your prediction, Travis?

1:21:31 Travis: My prediction is that the first claim moves forward. I think there certainly is a case to be made. I think that there is certainly a case to be that the Speaker policy is unconstitutionally vague. Based on what I read from the complaint, there's every reason to think that they'll move forward there. Because, I mean, they asked for criteria. I mean, they said, what are you basing this on? And Berkley said, no, not

1:21:56 Andrew: Not, not true, but, but anyway My prediction is that this lawsuit is settled and is withdrawn. I think this is a publicity stunt. I think that explains, uh, why, because the, the attorney who wrote this is a well-known, uh, First Amendment attorney, uh, she should write something better than this, uh, and I think that the entire thing with its bombastic language which was meant to do exactly what it did, which is to get people like us talking about it. I do not think they want to hear a judge rule on the merits of this garbage. And so my view is that the lawsuit is withdrawn, that Berkeley, a pretty conservative by temperament institution, if not conservative in its public policies, is going to want to get out of a lawsuit, lawsuit

1:21:57 Thomas: All right, Andrew, what's your prediction?

1:21:57 Travis: My

1:22:44 Andrew: Uh, and there will be some accommodation, and Coulter will come to campus, uh, and this lawsuit goes away. That's my prediction. That gives us three nice distinct positions.

1:22:52 Travis: Distinct positions.

1:22:53 Andrew: That we can come back to well

1:22:53 Travis: Yeah. And then, you know, I just want to end too, by saying, I agree with Andrew there. I do think that he's right. I think this will probably settle. And, uh, but, you know, I think that YAF will have achieved their objective, which which has to basically send a message to other universities that if you start messing around with speaker fees and you want to start telling conservative speakers or speakers you don't like that they have to go into a sub-basement somewhere and their speech must be heard via Skype or something like that, then they might face a lawsuit.

1:23:22 Andrew: I want, thank you for, uh, coming on and being, you know, reasonable in, in discussion and listening and, and, uh, expressing your, your point of view on the show, uh, hopefully you feel like, uh, you've been, you know, treated did fairly, and uh and you've had a good time. I

1:23:36 Travis: Sure. And I'd like to thank you both for indulging a layman in sort of his, you passionate pursuit of a, in law that never was.

1:23:44 Thomas: You and me both. All right. Thanks, Travis.

1:23:47 Travis: All right. Thank you guys. Appreciate it. Have a good one.

1:23:51 Clip: The law breaking down

1:23:57 Thomas: All right. So, Andrew, there you have it. There was the discussion with Travis. Interesting. Interesting to try to crack through that. Obviously, I don't want to about him while he's not here. But there is one thing I want to clarify that's not an argument to argue against him while he's out here, but to clarify from you. You mentioned that you think this case will settle and my alarm bells went off because I worry, okay, does that mean that everything I thought about, okay, this case is easy to dismiss. It's bullshit. Does, will this give people like ammo to say, well, look, it forced them to settle. Clearly there, clearly there was something there.

1:24:32 Andrew: Yeah. And, and look, I mean, I, I sort of picked that to be, you know, cheeky in a three-way discussion so that there were, you know, three viewpoints. I mean, remember, Travis's prediction was this case is headed to the Supreme Court. So I thought that was a fair way.

1:24:48 Thomas: Yeah, that's not happening.

1:24:49 Andrew: I think we're, I think we're clear on that. No. And let me unpack that a little bit. Right. Like public institutions, I've worked for them in the past. Right? I've done work for Johns Hopkins here in Maryland. And public institutions—we talked about this in the Hively v. Ivy Tech case, right? They are very, very conservative by temperament. And they don't like being involved in litigation, especially high-profile litigation. So my prediction on that was based much more on the fact that universities don't like seeing their names in the press associated with the lawsuit, particularly, you know, being. Yeah.

1:25:26 Thomas: Well, but don't they first attempt the dismissal?

1:25:27 Andrew: Yeah. I, I not necessarily, right? Like, you, it is possible that counsel for Berkeley has called counsel for BCR and YAF and said, hey, uh, give us a little bit extra time and let's try and work this out so that they don't have to, you know, pay the legal fees of moving to dismiss. Um, it's also possible they're, they're busy, you know, moving to dismiss the lawsuit. Like, I certainly stand by, uh, the analysis that I stated. I mean, throughout, you know, our discussion, which is to say, um, I, you know, I, I would if I were counsel yeah, I mean, I, I think it's, you know, it's, it's badly written, but, you know, there is, as we said from the outset, like, where you have the potential for factual dispute, it then becomes really up to the individual judge to say, you know, I think, like, many, many judges, and particularly state court judges, but often a lot of federal court judges, are reluctant to deny somebody their day in court, right? Like, that's a fundamentally American ideal.

And so, when we say, I don't think there's a good opportunity to kind of talk about this, when we say something is a, you, you know, a candidate for a motion to dismiss, that is the judge looks at himself, herself, and says, you know what, like, much as I want to give this person their day in court, there's just no there there at the end of it. And, and I think this is awfully close to that, right? I think that

1:25:47 Thomas: Okay.

1:26:00 Thomas: This is crap. Okay.

1:26:52 Andrew: That's, that's where I come out.

1:26:53 Thomas: But you're leaving a little room for, you never know. And maybe Berkeley doesn't want to to even take that chance.

1:26:56 Andrew: There's risk and maybe they don't

1:26:57 Thomas: And maybe they can get rid of it by saying, okay, let's have freaking Ann Coulter on the stupid campus or something.

1:26:58 Andrew: Want to, right, right. Yeah. And And that's

1:27:04 Thomas: And that's a free way to get past it.

1:27:04 Andrew: What and that's what public institutions do. Yeah. And so but that is in

1:27:07 Thomas: Yeah. Okay. Okay. So that was not at all meant to say this case has any sort of merit, just a sort of like practical look at that.

1:27:09 Andrew: No way. No, I mean, yeah. If you skipped ahead, if you if you omitted the lengthy discussion and just went to the conclusion, maybe you could get that. But I mean, I think it's I think the the the it's just it's just very, very clear. The proposition, the central proposition that was advanced is imposing security fees is unconstitutional. And that to just, I mean, the case law is really clear that that's not the case.

1:27:39 Thomas: Okay, well, thanks for that. Thanks for Travis for coming on. I mean that. Anyone who's willing to come on and disagree and back up their opinions. I love that. That's my favorite thing. I really mean that. Because the worst thing for me, and this is more true of my show than our show. The worst thing is when someone wants to disagree, chirp at you all day on Twitter, and then refuses to ever talk about it. That drives me nuts. Travis is not that at all. He's someone who came on and put his mouth where his mouth was. I don't know. He put his say money where his mouth was, but it's all the same thing.

1:28:05 Andrew: He He Will get He Will get the bill for our processing Fees for being on The show, Hall.

1:28:11 Thomas: No. Yeah. That's that's really cool of him to do, and I always appreciate that. So thanks. All right, it is time for our co-favorite time of the week, and

1:28:22 Andrew: Now, yes, It is that time. It is New Patron Tuesday, and we had a tremendous amount of support this week. So thank you to Sandra Miselem, Antti, Helen Keely Wilson, Matthew Sheffel, Kyle Fox, Stephen Shadle, Colin Salisbury, Kyle Maloney, Jesus Fucking Christ, Ben Palmer, BY3, that's our buddy Ben, Young Young the Third, Miles Gard, Jan Cerny, Michael Zenner, Edward DeGuzman, PittAtheist, PittAtheist, Ashley Nicole, Drew Pompano, Zach Halepeska, Randell L. Phillips, JT Paschal, Anthony Wagler, to Josh Christensen, Johnson, Jeff Otjen, Cassie Halladay, thanks to Don Gwinn, thanks, thanks to My Dad Who Is Now A Patron, uh, thanks To My Dad who's now a Patron. I know my mom and dad had a long drive and were listening to the back catalog of Opening Arguments, and and apparently they heard something they like.

1:29:20 Andrew: So thanks, dad. Thanks for listening. Thanks to Clement Lafko, Dorinda, Chad Farrow. Thanks to I'm the Better Host. Thanks to Jeff Steele, Bahul Upadhyaya. And thank you to Marius Thomassen.

1:29:34 Thomas: And thank you so much to Bryce Blankenagel, Photobomber Extraordinaire, Michael Grossman, Gus Chavez, SISkeptic, Matthew Cutler, Ofu, David, Michelle C, Casey, jesusAteMyFerret, Jaan Võsa, Jesse Young, Amigo Renaldo, Sean sullivan, Ian Maloney, Cynthia Francis, SoggyPants, uh-oh, better get that checked out, Trowa Barton, Lizabeth Crump, Satan's Little Monkee, Swampy Asshole, I think might be a repledge, I think I remember that one, Adrian, QuestionableSources, Konrad Vernor of the Grilled Onions Podcast, Susan, Dustin HunterHanes, Shane Phillips, Alfred Dockery, Tim Schumacher, Whitty, Thomas DePalo, and Jeremy Peper are blown away by the new support this week. Thank you guys so much for pledging. I really hope you enjoy all the bonus content. With that milestone we hit, the 1750 milestone, we blew right past that, and we are going to to be giving patrons an extra Q&A each month just to show you how much we appreciate your support. So thank you so much.

1:30:51 Clip: Oh, no associate of this firm has ever failed the bar exam. No kidding.

1:30:57 Thomas: Alright, Andrew, it's now once again my least favorite time, but who knows, I'm changing my outlook. Did I successfully eliminate two answers? We'll see. It's time for the answer to last week's bar question.

1:31:09 Andrew: Yeah, this was the question about two college kids driving home at night. You have sleepy driver and pothead passenger. Sleepy driver wrecks the car. Pothead passenger sues sleepy driver, countersues and says, hey, you know, you're you're over there smoking pot. And how dare you sue me for crashing the car? And so our answers were A, that yes, the court will grant the passenger's motion to dismiss the counterclaim because the passenger was not actively participating in a joint enterprise and did not do enough to contribute to the cause of the accident. The passenger's motion to dismiss because a vehicle operator is always liable and a passenger cannot be made liable for the driver's actions under any circumstances.

1:32:00 Andrew: That was one of the answers you dismissed, and I can tell you, good job dismissing that answer. That's a nonsense answer. I think we can all think of lots of things a passenger might do that would Cause a driver to wreck a car. Are. C was no, because the driver has properly alleged a joint enterprise situation where the passenger is liable for his for her share of the negligence in causing the accident. That was the answer you picked. And D, another answer you threw out, was no, because the passenger was breaking the law, making her negligent per se. And I want to I want us, and that is also an incorrect answer. So so you did successfully eliminate two answers. And

1:32:06 Thomas: Thank god, eliminate two, still

1:32:39 Andrew: I want to congratulate you in particular, I mean this with 100 percent sincerity, in your analysis on negligence per se, because that is a tricky subject. And and and so what what negligence per se is, is if the plaintiff shows that the defendant violated a law, that the law provides for some kind of a criminal penalty. Right. In other words, it's not just, you know, littering or whatever. You know, this is this is some of the things you were working through. And in particular, that the the law was designed to prevent the kind of harm that was the cause of the accident. Right.

1:32:39 Thomas: Alive, alright, right,

1:33:27 Andrew: So that, you know.

1:33:28 Thomas: So if it's, that's what I was thinking, like it was unrelated, like if you had some unrelated thing, you wouldn't, I wouldn't think the law would hold her responsible for the accident if she's just in the back doing some other Crime. You know.

1:33:37 Andrew: Yeah. Yeah, she's she's forging documents in the backseat.

1:33:40 Thomas: Yeah. She's In the... she's The back, coming, treason online or something.

1:33:43 Andrew: Right, right, right. Right. And and and and take that beyond, you know, the car accident, you know, now. Right. Like, you know, can I you know can I can I murder the forger? Right. It's really once you start thinking about it, you realize why it breaks down. But it's really, in my view, I mean, and a number people guessed D, it's a very, very attractive answer. Uh, it required kind of a hairline distinction there, uh, and I think you did a great job in Uh, in eliminating D.

1:33:45 Thomas: Yeah.

1:34:13 Thomas: All Right. Well, That's all we have for today. All right, I got the I eliminated the two answers correctly, so that goes down as a win. Let's move on. Okay, next, next item.

1:34:16 Andrew: So there You go the actual answer

1:34:21 Thomas: But

1:34:22 Andrew: No, as I, as I tried to explain to you, I triedto encourage you, the actual answer is, in fact, A. um and And the reason that the actual answer is A is because that there is, uh, there was no, uh, connection between the acts of the defendant and the actual accident. Right, like, she's not, she's not specifically, the fact pattern has her blowing the, you know, pot smoke out the window. She's not trying to get the driver to smoke, she's not, you know, blow it in his face. There's really no connection, it is, it is kind of an extension of Of the.

1:34:52 Thomas: That's not something you have to go to to discovery to find, like, you're able to to get rid of that without looking into it at all?

1:34:59 Andrew: Well, and the question is, how is it pled? Right. And so you've got to you have to make some sort of judgment based on the fact pattern that was here. The operative legal standard is that in order to find a passenger guilty of contributory negligence, because that's what we're saying. Right. Right. Like if the counterclaim goes forward, we're saying you passenger are responsible for this action. And the standard there is that the conduct must substantially encourage or assist in the negligence of the driver. And here there's... there's not even an allegation of that. The Right. Allegation is just the passenger was herself negligent by smoking weed. Well, that that may that that may well be, but you have to connect up the smoking weed to the cause of the accident. So So there there has to be that connection between the allegation of negligence by the passenger

1:35:15 Thomas: Yeah, yeah. Yeah. I think I'm just getting so thrown off by the most minor part of these, which is like, when, when, cuz I always think of just dismissing a case is a kind of extreme thing, so I never sure when it's like, no, you need to look into this, you need actually go to discovery and find out if this is actually true, or when I can just take whatever the question says and just assume that's true. Like, I think that's tripping me up here. I don't get it.

1:35:52 Andrew: And yeah, yeah, yeah. I think that's right. And look we crack the joke in in Law'd Awful Movies about elk starting off with like a one forty two on our LSATs and then, you know, getting a one seventy nine and near perfect score the next time around. But but there certainly is a period there was a period for me in studying for the bar exam not a direct comparison, but the first time I took the questions and I kind of had that like, oh, OK, like this. This is this is what the question is really asking. And here's how I want to go about doing it. So, you know, I it I think I would I would take that sort of going forward and say, you know, the question ist designed to test certain principles of law and and that this we call this in the law. We do this on all of our exams. It is called issue spotting.

1:37:03 Andrew: Right. And the idea is when somebody gives you a fact pattern, you say, OK, what principle of law is this meaning to test here, and here the issue to be spotted was what constitutes an allegation of contributory negligence. Right, and, um, to have contributor or comparative negligence, uh, you you need to demonstrate that connection between the activity of the defendant, uh, And The The Negligence Of the plaintiff.

1:37:27 Thomas: Yeah, the bar is just hard because it didn't give us any details of what like her motion to dismiss. Right, it gave us no details of it, so I was supposed to just figure that all out, and I just, yeah, I guess I I guess I did some math in my head that wasn't really actually in the question. Unfortunately, I don't get it.

1:37:30 Andrew: Yeah. Right. No.

1:37:45 Andrew: No. Look, I, it, this is, this is it makes me, it makes me feel good, I think it makes our, uh, our lawyers, uh, who listen to the show, who managed to pass the bar exam feel good to have you go, man, the bar is hard. Like you know

1:37:56 Thomas: That's what I'm here for. Show everybody how hard it is, even though they all get the benefit of guessing the opposite of me, and then they just get a hundred percent. So there you go. Whatever. I'm right.

1:38:05 Andrew: Not the opposite. Not the opposite. You're your second choice. So Thomas's Thomas's second chance law firm is alive and kicking.

1:38:08 Thomas: Yeah, true. Yeah, that's a good point. All right. So 11 for 25. Boy, I've got work ahead of me. Future Andrew. Who's this week's winner?

1:38:18 Andrew: Yep. You know, Thomas, sometimes it's hard to pick a winner, and sometimes the winner just picks itself. In this case, we had Martin Bowers, that is at M-A-R-T-I-N-B-O-E-R S, who tweeted out, "Oh, Thomas. You've done it again. That's not a joint enterprise. This is a joint Enterprise." And it's a lovely Photoshop picture of the USS Enterprise with marijuana joints for nacelles. Uh, it made me honestly laugh as soon as I saw it, and there was no doubt that was going to be this week's winner. I'm also disappointed in us for not uh getting the quote "joint uh enterprise" pun right away, but fortunately our listeners did. Um, so uh, thank you to Martin Bowers, a great job on that graphic, uh, and thanks to everybody who plays along with Thomas Takes the Bar Exam.

1:39:08 Thomas: I'm not concerned about missing puns because I think they're not funny. All right, that does it for today's episode. Thank you so much for listening. Thank you, patrons. Again, truly blown away by that. Thank you Andrew for being such an expert and thank you, Travis, for coming on, giving your views on that case. I hope everybody learned a lot, I certainly did, and we'll see how those predictions pan out. We'll keep an eye on it for you and we will see you with a up-to-date, Hot Off The Press' podcast on Friday. See you then.

1:39:45 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.