OA466: Opening Arguments Blocked in Australia?!

Transcript

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

0:01:17 Thomas: Weird. Hello and welcome to Opening Arguments. This is episode 466, or it? I'm Thomas. That's Andrew. How you doing?

0:01:24 Andrew: I am fantastic, Thomas, how are you?

0:01:27 Thomas: Well, I'm so controversial that I've been banned in whole continent, actually.

0:01:31 Andrew: Yeah, that is right, the Australian High Court Justices have decided to restrict access to opening arguments, we're gonna tell you why.

0:01:37 Thomas: Yeah. Oh I thought it was just me. Oh thank God. Okay. I thought that the whole tribunal with like the, you know, the like laser handcuffs and the like,

0:01:42 Andrew: Oh, yeah, yeah. We sentence you to the Phantom Zone. Yeah.

0:01:49 Thomas: That is huge relief though, if it's just our show and, oh Boy. Well, before we get to it, geez, our hearts go out to the people of Texas who are, I can't even, I don't even know that we know how bad it is yet fully because It seems like so much is offline that I'm really scared that it's going to be even far worse than we know right now.

0:01:54 Andrew: Yeah, it's right. It's just the show.

0:02:08 Andrew: Yeah. I think that's right, we have ton of listeners and friends and, you know, our very own Teresa Gomez lots of people who are in Texas, who are suffering through this, this, you know, every year, once in a century ice storm. And

0:02:32 Thomas: I'm stealing my joke from last night, but that's okay.

0:02:33 Andrew: I love it. So I, you and I have, looking into ways that OA can help. One of the things that Ashley put together that I'm going to include in the the show notes is a list of resources and links for folks in Texas, again, if you have yeah, but if you have spotty or intermittent access and and you can get that, so um, or you know, if you're family members who are elsewhere, um, I'm gonna run down them really really quickly. Uh, first, I mean, just Just to shout out Jose Andres, who's like, I mean, can he can he just be overlord of Earth? He he and World Central Kitchen are.

0:02:52 Thomas: Who may not have power, but yeah.

0:03:12 Thomas: He seems to be food over Lord of

0:03:14 Andrew: Yeah.

0:03:15 Thomas: Earth.

0:03:16 Andrew: And and his restaurants are amazing. I've been to, I think, the ones that I could get to. So yeah. Yeah. Andres and World Central Kitchen are down in Texas giving out free food. If you are without heat, there are warming shelters throughout the state. You can call 2-1-1 on your phone. If you have a medical device that requires power, you can call 9-1‑1. And I've got a list of the warming centers that'll be in the show notes. There are I'm going to include an article Ashley pulled from the Texas Tribune, which is the ways that it compiles a bunch of different ways in which you can get help during the storm. And then there are two live docs.

0:04:01 Andrew: One is by the Texas Civil Rights Project. And if you are in or about the Houston area, this is a live doc with resources on open restaurants, grocery stores, gas stations, hotels, really, really crucial stuff. And it's it's being crowdsourced. So can head on over to that live doc. We'll include that in the show notes. And then finally, there is a general live doc of mutual aid and and again, you know, kind of cross section of all of these issues. Use. So we're doing our best, understand. It's right, it's a podcast. If you don't have electricity, if you don't have internet, may not be able to get this out to the people who need it, but hopefully we can get it out to family members.

0:04:44 Thomas: Yeah. And if they do, I don't even know. Our podcast might not be the top priority. Like the minute they get power, they're like, oh, I got to turn it away. But maybe. You never know.

0:04:55 Andrew: If I know our listeners, they probably are.

0:04:56 Thomas: Yeah. Maybe they kept a phone charged and were like, well, I got nothing else to do.

0:05:02 Andrew: But seriously, hearts do go out to you. We are looking for ways ways to help. And thanks to Ashley for compiling those resources. And we'll continue to do what we can.

0:05:14 Thomas: On a human note, can I just say, as someone who is a Californian who experienced a ridiculous storm three weeks ago, what's really not helpful is to talk about how wherever you live, it gets super cold all the time. That doesn't matter. Gosh, it's so frustrating. Oh, I'm in wherever. Oh, it is negative 30 right now. I am fine. Yeah, do you think it's just that Texans don't have the fortitude? It's that the infrastructure is not designed to handle it. No matter where you are, you can't live without water and power for a week.

You not like that's going to cause massive casualties, actually. Massive loss of life. It doesn't mean that Texans like can't handle cold. It has nothing to do with that. Same way, you know, when we had that windstorm three weeks ago, it was like 60 mile an hour winds. That was something to behold in California that does not happen very often. And it really doesn't help to be the one-upper of like, well, I get a tornado every day. It's like, okay, yeah, well all our trees in the whole state are gone. Like this is not a thing that California is used to handling.

0:05:41 Andrew: Yeah. Yep. Yep, yep. Also, as long as we're, you know, doing a what grinds my gears segment here.

0:06:21 Thomas: Well, it's just, oh, it is infuriating.

0:06:22 Andrew: No, no, no. No. No no. I agree. I was not making light of your of your point.

0:06:29 Andrew: I I would add, if you want to take political pot shots, the political pot shot is Ted Cruz went to Cancun, right? This is the first thought of elected official, his state is in a disaster area, you know, peace, I'm out of here. You can make that one, but can we stay away from the like, well, you red states sure deserve it for electing assholes like Ted Cruz. Like, 48% of Texas did not want to elect Ted Cruz, and the other 52% do not deserve to die in ice storms, okay?

0:06:33 Thomas: Yeah. Yep. Yeah,

0:07:04 Andrew: So, how about we knock that off?

0:07:04 Thomas: It it like if there is a hostage situation In a bank where there are 52 robbers and 48 citizens and they are like, "Oh, just nuke it. That is fine, it's a majority, it's the majority criminals, just burn down the bank, it's whatever, it doesn't matter, there's 48 houses, it's totally fine." And for that matter, by the way, you know, even if you did vote red, you don't deserve to have, you know, die, you don't deserve to have your power out and your water frozen for the whole week, you know, like that's not, nobody's in favor of that.

0:07:32 Thomas: Yeah. I compassion all around, I just think we absolutely should help them out, bail them out federally, do everything we can, but we absolutely should be dicks about it, like, to Ted, Ted Cruz specifically, like. We should, yeah, no, emphasize that like here, this is why government can do good things, Ted. See, you know, but, but yeah, don't take it out on the people.

0:07:32 Andrew: Exactly right.

0:07:42 Andrew: But just to Ted Cruz. I would really like, yeah, if we could have some kind of remedial. Like when I was when I was 16, I got my first speeding ticket and I had to take a remedial driving course.

0:07:56 Thomas: Yeah. Yeah. Traffic school.

0:08:04 Andrew: Yeah. Right. And so if we could just send Ted Cruz to like, you know, remedial government school as a result of this, that would that would be that would be a net positive. So.

0:08:13 Thomas: And this is, by the way, this Is one reason that there will someday probably be something like another Trump, but this is one sign that Ted Cruz is not Trump. Like he, He, he will, he will do everything he can to imitate him. And that's his whole plan. Like he's going to be president Ted Cruz on the, you by being Trump, but Trump would have never backed down from the, that's thing. Trump always had the rich guy persona to fall back on. So like if he was caught going to Cancun in the middle of the thing, he'd like, yeah, I'm gonna go sit in my golden toilet in Cancún.

0:08:42 Andrew: Right.

0:08:43 Thomas: You know why? I've done very well for myself. You know, like Ted Cruz, he backs down.

0:08:45 Andrew: Right. All the losers who don't want me to be in Cancun.

0:08:48 Thomas: Yeah. Yeah, exactly. He would have found a way to still make, you know, and Ted Cruz instantly back down and pretended that he was, oh, I was just a chaperoning my daughter to, I saw this actually just came out as we're recording, but someone, he blamed his daughter, you Know, he was like, oh, my daughter had a trip and I was, you know I was going down to be a good dad. I'm on my way back, you know, because that's what you do. You fly down and back one day. Anyway, someone said, oh it's blame your daughter at work day.

0:08:51 Andrew: Yeah. Oh, good.

0:09:16 Thomas: That was funny anyway.

0:09:18 Andrew: Oh, Ted Cruz is piece of human garbage. All right. Ready to get ready to get on with the show.

0:09:23 Thomas: Yeah. We'll Save the rest of our announcements for later because we got already 10 minutes in. But that was, I mean, Texas, that's that's big deal again. Hearts go out to you and we hope this is over soon, because wow, that is, that would be impossible for anyone to deal with all.

0:09:28 Andrew: Oh,

0:09:39 Clip: The law breaking down.

0:09:45 Thomas: All right, Andrew, what kind of absolute pure nonsense garbage is coming out of South Carolina in the form of Senate Bill one?

0:09:46 Andrew: Yeah. So Senate Bill one in South Carolina. What what do you think that literally the top priority in the state? Yeah.

0:09:59 Thomas: Yeah. Number one priority. It's number one. Yeah.

0:10:03 Andrew: Yeah. You you you

0:10:03 Thomas: So like COVID relief, unemployment, you know, boost unemployment benefits. That's a statewide thing you can do. You know, what else can you do? Mask laws, Laws, vaccine rollout, anything. So it's got to one of those, right? It's number one.

0:10:18 Andrew: You you would think right. South Carolina has a half million cases of COVID, 2000 new cases every day. It's it's real bad. Their economy is is suffering. No, this is, of course, a blatantly unconstitutional abortion bill because people's bodies is the only thing that that really matters. If you're a South Carolina.

0:10:36 Thomas: God. Well, it's wedge issues are all they have. It's all, it'S the whole party is wedge, is couple wedge issues and they don't proactively do anything. It's infuriating.

0:10:46 Andrew: Yeah. So I wanted to cover this for a couple of reasons. Number one, because this bill, I believe, is model legislation and you will see it in other states. It is terrifying the status of where state abortion laws are right now. And I'm going to preview that a little bit. But like the question is, if the current Roberts court overturns Roe v. Wade. And by the way, like, you know, my my old prediction of, well, they're going to come up with some kind of John Roberts, it guts it. But whatever. That's out the window. Right.

0:11:30 Thomas: Hmm.

0:11:30 Andrew: Right. I mean, we have a five howler monkey majority that I think is very likely to just overturn Roe v. Wade directly. I think this legislation, I'm going to, I'm going to show you the embedded proof within it. If that happens, it will not leave a situation where things are up in the air. And now we just sort of go back to like, let's have citizen democracy and figure out like if we want, you know, to. No, no, no. Half the states, about about half the states have legislation that will take effect or spring back into effect in the event that the day that Roe v. Wade is overturned, in order to restrict the ability of pregnant individuals to to seek medical care.

0:12:17 Andrew: So let me go through Senate Bill 1. Let me apologize at the outset. This will not be, when I read from the bill, it will not use inclusive language. So I apologize for that at the onset. But I want to tell you what what the bill says, says. So bill says, any abortion provider who is to perform or induce an abortion must perform an obstetric ultrasound on the pregnant woman using whichever method the physician and woman agree is best under the circumstances. I'd love to know how that one works out. And then display the results of the ultrasound, display the ultrasound's images, record a written medical description of the ultrasound?

0:12:51 Thomas: Okay. Yeah. Sorry. Can't go F yourself be oneof the methods agreed by the patient and the doctor?

0:13:04 Andrew: Nope. Nope.

0:13:05 Thomas: I got a method. How about you go clown on yourself? No? No, the doctor wouldn't agree to that short

0:13:07 Andrew: Yeah. If if a if The abortion provider performs an abortion without determining first, determining the next section, whether the fetus the pregnant woman is carrying has a detectable fetal heartbeat, beat. That person will be guilty of a felony, must be fined $10,000, imprisoned not more than two years or both. So class B felony in South Carolina to perform an abortion without first determining whether it has a, quote, detectable fetal heartbeat. We have talked about how much BS that is. I'm going to talk a little bit more about it in a minute. And the only exception there is medical emergency. And that medical emergency is a record that the provider must document, quote, the medical rationale to support the physician's conclusion that the pregnant woman's medical condition necessitated the immediate abortion of her pregnancy to avert her death.

0:14:09 Andrew: End of quote. You must keep those records for seven years so the state can prosecute you for up to seven years after performing an abortion if you do not keep that kind of documentation. And think about what that means, right? Oh, who's pregnant here will come out in a coma as a result of this, will permanently lose the use of her legs, right. Right. I mean, any medical condition short of instant death is not a sufficient excuse to perform a medically necessary abortion without first ultrasounding to figure out whether the the fetus has a detectable fetal heartbeat. Heartbeat. Then, of course, after you've done that, you may not perform, induce or attempt to perform or induce an abortion on a pregnant woman with the specific intent of or causing or abetting the termination of the life of the human fetus the pregnant woman is carrying and whose fetal heartbeat has been detected. So again, I'm going to talk about the stage. Fetal, quote, heartbeats are are ascertainable uh during the embryonic stage because that's when the heart forms right so as organs

0:14:39 Thomas: Of death. Wow.

0:15:28 Andrew: Are forming within the undifferentiated zygote that is the the the developing fetus, um, one of the things that develops is a single blood vessel, um, and that blood vessel. And here I am quoting from Very Well Family.com. This is not an abortion rights site, this is a uh fetal development site. And it says, "The baby's heart is also rapidly forming. It starts as a single blood vessel that begins to pulse around the fifth week of pregnancy. It is still too early to hear this using Doppler technology. That won't happen until week 10. But a transvaginal ultrasound can pick up tiny pixels fluttering as the blood vessel beats" with activity starting around week weeks six to seven.

0:15:37 Thomas: Right. Yeah.

0:16:15 Thomas: It's, it's not a heart beating. It's a, yeah,

0:16:18 Andrew: The at this stage is four millimeters in length. That's an eighth of an inch, three grains of sand, a third of an aspirin. I could do these comparisons all day. In addition to essentially banning abortion after the fifth or sixth week of pregnancy, Which I I just can't tell you how undetectable that is. Right. Like that is

0:16:41 Thomas: Said it a million times. Say it again. And nothing, nothing blew my mind more than, you know, as a, as a dude kind of ignorant to this stuff. Uh, but when we had our kids, it was like, oh, we just, but we detected Phoebe as early as could be. And it was like, yeah, well, four or five weeks at this point, you know, that was like as early as we could have possibly detected that we were pregnant. It just it's it's effectively in a full abortion ban. Like if you go after five weeks, it's virtually a 100 percent abortion ban, so

0:16:52 Andrew: Yeah.

0:17:04 Andrew: And and that was yes. Yep. It is being reported that this contains exceptions for rape and incest. I need to read this to you because, again, if you have Uncle Frank's and Aunt Kathy, like I want you to understand the naked cruelty that is in this bill with respect to rape and incest. And if you don't want to hear that, fast forward about two minutes in the podcast. This is the content warning. Other than all abortions for after about five or six weeks are prohibited unless the pregnancy is the result of rape, comma, and. So so I'm going to say there are restrictions on when the state of South Carolina wants you to carry your rape baby.

0:18:03 Andrew: Quote, the probable post-fertilization age of the fetus is fewer than 20 weeks. So if

0:18:10 Thomas: If you carried it long enough, you're stuck with your rapist's child.

0:18:13 Andrew: You are terrified, afraid and praying, hoping against hope that like, OK, well, I've just had misperiods because of the stress, whatever. Like denial, I think, would be real high on the list of a rape survivor's trauma kit. Yeah. And it goes past 20 weeks. Congratulations. You get to carry the rape baby. Same thing for incest. And I'm not done.

0:18:15 Thomas: Oh,

0:18:40 Andrew: Subsection C, 44-41-680, subsection C. A physician who performs an abortion must report the allegation of rape or incest to the sheriff in the county in which the abortion was performed no later than 24 hours after performing the abortion and shall include the name and contact information of the pregnant woman making the allegation prior to performing or inducing an abortion. A physician who performs or induces an abortion based upon an allegation of rape or incest must notify the pregnant woman that the physician will report the allegation to the sheriff. I if you're not.

0:19:08 Thomas: My God. There is so much there. There's so much that is outrageous. Outrageous, but like, am I reading too much into it? But the sheriff, is that a weird Republican-y thing to write? It's not even like reported to the authorities. It's like, find the sheriff?

0:19:21 Andrew: Yeah.

0:19:34 Andrew: Yeah, fine. Sheriff Buford T. Justice and tell him. Yeah and and tell the woman, OK, you want to you want To say that this was the result of incest. That's fine. We're going to we're going to tell your father, you know, is there is no exception for a judicial bypass. I mean, this is this is monstrous on a scale that I look. There are two options, right? If you are brainwashed and you think that a fertilized egg is a fully formed human being endowed by God with a spirit, then I guess right. Right. Then I guess maybe you are at that Operation Rescue stage of

0:19:37 Thomas: Yeah, what the, God.

0:20:14 Andrew: Like, well, you know, this is the Holocaust. Might as well like kill and shame and do whatever I can to everybody involved.

0:20:21 Thomas: Well, this is why this is a sign, if you really think through the arguments, I, apologies, this very unpleasant topic, everybody, but if you think through it, this is what it is about policing women and not about saving lives. If it were just about saving lives, there would be no exceptions for rape and incest. It makes no sense under their logic. It's like if a human is a human life and that's why you care, then that should be a human as a human life. There should be no exemptions. And I've argued with pro-lifers and sometimes they'll bite that bullet and sometimes They won't. And it's really a corner that they can't get out of.

I mean, either they have to bite the bullet and say, yep, doesn't matter if it's an 11-year-old you know, incest victim, they have to carry the baby to term or they have to acknowledge if they say, well, no, I wouldn't, you know I wouldn'T force that person to, well then you acknowledge it's not a life is a life, there are other concerns going on and when it comes to being the victim of a crime that's when even conservatives can say, well, then that means maybe it wasn't the woman's fault so I guess in those cases, then sure but all other cases, it's about about feeling like women have to act a certain way or do certain things, or it's their fault and they deserve the consequences. That is what this ideology is about.

0:20:27 Andrew: Yeah. Yeah. Yeah.

0:20:53 Andrew: And and again, it is a provision designed to intimidate victims of crimes who are already suffering from everything else in relation to that. All right. The only slightly good news is that this is blatantly unconstitutional and will be enjoined from going into effect the second it's passed, which is probably going to be later on in the day. As you're hearing this. It has cleared the South Carolina House. It goes to the Senate, which is Republican. The Republican governor has said he will sign this bill. And it contains what we call a triggering provision, Section 620, that says a court order or judgment suspending enforcing of any provision of this law is not to be regarded as tantamount to repeal. And then says if the United States Supreme Court issues a decision overruling Roe v. Wade or any other order or judgment, restoring, expanding, or clarifying the authority of states to prohibit or regulate abortion entirely or in part, or there's a constitutional amendment or, you know, whatever, a bunch of other stuff, then immediately the attorney general may apply to the pertinent state or federal court for either or both of the following,

0:21:53 Thomas: For now.

0:22:46 Andrew: A declaration that the previously enjoined statutory provisions are valid, or a judgment or order lifting an injunction against the enforcement of any one or more of the statutory provisions. And if the attorney general fails to do that, then quote, any solicitor, and I think that means that even though they use lowercase, I think that means any county solicitors, uh, within the state of South Carolina, uh, may apply to the appropriate state or federal court for such relief. That is, in case, you know, South Carolina accidentally, you know, elects, uh, a Democratic attorney general who says, uh, no, I declined to do that. There is an escape hatch for that as well. All they have to do is find one Republican lawyer employed by any level of state or county agency and they can apply to overturn this.

0:23:40 Andrew: So will tell you, using the language overruling Roe v. Wade, that was the sort of pin I told you at the beginning think they're telegraphing, right, that they know. Because it does not say overruled or modifying Roe V. Wade or Planned Parenthood versus Casey, which is how I would have written it if I were evil, not to give them help. This passes, this will now mark 23 states that have some combination of the following, either existing bans on abortion that predated Roe and are stayed but could spring back, post-Roe restrictions like this that have been struck down or enjoined but could could spring back, trigger legislation like this that could immediately take effect upon a Supreme Court decision overruling Roe v. Wade, and then two more states that have passed laws, and lots of these states have done bunches of these things, right? But two states only have passed, Kansas and Ohio, have passed laws that say it is our policy to restrict abortion to the greatest degree permitted by the Constitution or the equivalent.

0:23:55 Thomas: Hmm. Yeah.

0:24:52 Andrew: So that's 23 states. And it is, by the way, you know, it excludes the Northeast, the Pacific West and and Illinois, basically It's it's bad. And look, some of these are are purple and blue states. So if you are in Arizona, Michigan, New Mexico, Wisconsin, Georgia, Iowa, need to be active about this because days are coming from the Supreme Court, and a lot of people are laying the groundwork for laws like this. So we

0:25:30 Thomas: We need to win state houses. We needed to. We didn't do a good enough job. That's why, I mean, honestly, the way our politics really should be working is that local issues, you know, especially local to where you are, then also maybe statewide should be like the most pressing things, especially when we see the power of something like this. You know, this is and, you Know, I was going to say this with Ted Cruz earlier. Like I know by all means, we should give Ted Cruz all kinds of crap. But like Ted Cruz is is not responsible for Texas energy policy.

You know, like he he's responsible for voting in the Senate to acquit criminals who, you know, try to try to take over the Capitol. Like so I agree. We all we all should be blaming him, of course. But but like it's it's the state governments, the state and local areas that that's where it should be starting. That's where we need to be able to focus. Conservatives have been better at doing that than we have, I think. And we tend to As Democrats, we tend to really all out for national election, but maybe we haven't been as able to keep up.

And there's reasons like gerrymandering and other things, other culprits there, but it really needs to be at that lower level, that local level and the state level. And then ideally in my perfect world, that would drive all kinds of turnout. And then those people would also just like, oh yeah, who's the, yeah, the Senator. Yeah, sure. Yeah. Vote for the Democrat. You know, it shouldn't be so much of a, of a focus on national issues at all times.

0:25:33 Andrew: Absolutely. Yep.

0:26:05 Andrew: I,

0:26:52 Thomas: Like you shouldn't me voting, you ideally again, this is not the world we live in, but like ideally every election, every vote you cast shouldn't, be about who the president is or that kind of thing.

0:27:03 Andrew: I could not agree more with that. And that's, you know, look, we have given airtime and, you know, had interviews with, you knows, state legislators and local candidates. And I just couldn't couldn't agree more with you that the approach. I mean, it's it's been my frustration with, With, you know, dating back to one of our early controversial episodes on, you know, the Green Party and and similarly, like, you know, people who are, you know, who remain like hardcore Andrew Yang fans like, look, I'm a big fan that that that, you know, that UBI became a part of the national dialogue. I am not a big fan of, you know, the Green Party showing up every four years to screw with our presidential elections.

0:27:50 Andrew: Like, get out there, do some hard work. You could if if you were a real national party, Green Party, you could get people elected to the state legislature. It's not that hard. And the fact that they don't, the factthat they come in and camp out on hot button issues continues to frustrate. So but let me you said it in a much more positive way. And I want to I wantto endorse what you said. Get active, get involved, get local.

0:28:18 Clip: Thank you, Dr. Hibbert. I rest my case. You rest your case? What? Oh, no. I thought that was just a figure of speech. Case closed.

0:28:28 Thomas: Right now it's time to find out why, uh, we personally are banned in Australia. What do we do? What did we do, Andrew? Okay.

0:28:32 Andrew: Well, Thomas, let me ask you a hypothetical, um, three-way battle between Facebook, Google, and Rupert Murdoch's News Corporation

0:28:36 Thomas: Hope they all die in a fire. What, Yeah, uh, who is right in Facebook, Google, and Rupert Murdoch? That. Is this F, marry, kill? Is that what we're doing? I would F, Google, kill Rupert Murdochs for sure. That's solid. Kill Rupert Murdochs is 100%, and then I guess I got to marry Facebook. That's weird.

0:28:43 Andrew: Yeah. Yeah, yeah, who's right in that? Right? Um, yeah, it's a person marry I would marry Rupert Murdoch, because I mean, how much longer could could he possibly, you know, plus if Rupert murder got gay married, you know who would uh anyway, all right, so that

0:29:09 Thomas: Oh, that's a good point. This is why you're the lawyer. That is okay. Fantastic. Ooh. Ooh, they call that married. No, I'm just kidding. I'mjustteasing.

0:29:21 Andrew: Yeah, yeah, indeed, no, they do. I was, uh, excellent, making sure that, uh, people know that I've, I'm being sarcastic.

0:29:29 Thomas: You're jokey.

0:29:30 Andrew: Using their their jokes.

0:29:30 Thomas: I just, yeah, we're teasing all around.

0:29:31 Andrew: Anyway, that

0:29:32 Thomas: Anyway, why are we banned? Who's right? Let's get to it.

0:29:35 Andrew: The battle that is going on in Australia right now. And it begins with a 2019, 623-page Digital Platforms Inquiry Report, which I've read a lot of. It's from the Australian Competition and Consumer Commission. And that report, if I can condense it down, basically says that there is a power imbalance between those who generate news and, quote, "responsible digital platform corporations," by which they mean Google and Facebook. Book So that, and again, I'm quoting from the report here, "News media businesses are not able to negotiate for a share of the revenue generated by those digital platforms and to which the news content created by the news media businesses contributes."

0:30:26 Andrew: OK, so if you think about that in the abstract, you can kind of understand where the ACCC is coming from. OK. That is news News sources create their content. Google comes by and scrapes the content. And then when you do a search for it, you see a little thumbnail and you see the whole headline on Google. You don't even have to click through to the underlying news site. And lots of people just read headlines, as sadly we know. And then Google monetizes that and Google makes the money and your news platform isn't making any money. In the abstract, I think that's a fair point to make. However, when you do a control F and look through this 623 page digital platforms inquiry report and you do a search for Google, it comes up 2,335 times. Makes sense. Facebook comes up 1,906 times.

0:31:28 Andrew: News Corp comes up once. Once in a graph on page six of the executive summary. And as we look to the legislation that was proposed in response to this report, that's really sort of where the rubber is going to meet the road. Right. Right. Which is this is the bill that is being proposed is a bill that requires Google and Facebook to give money to Rupert Murdoch's News Corporation to pay them for the news that they generate before they redistribute it on their platform sites. At bottom, that's what this is about. OK, it is called in the law the remuneration issue. And and I have learned there's so much neat stuff about reading Australian laws.

0:32:15 Andrew: This is section 52 ZL sub B, or I should say ZL Sub B,

0:32:20 Thomas: Yeah, yeah. Plus, in Australia, that's the first letter of the alphabet. Because

0:32:24 Andrew: It starts with 52 ZA and then it goes through to like ZZ ZZ L.

0:32:30 Thomas: They're upside down.

0:32:31 Andrew: It's it's I love it. So but it but it actually is the case of this in this bill.

0:32:38 Clip: YOU BETRAYED THE LAW!

0:32:32 Thomas: And anyway, that is us. Exciting announcement. Every week, we're doing an extra Opening Arguments. You know how? We're going to be on the Stereo app Wednesdays at 5 p.m. Pacific, 8 p.m. Eastern. We're gonna be on The Stereo app answering your questions, and you're gonna be a part of the show. I am so excited for it.

0:32:55 Andrew: This is this is going to be a lot of fun. Um, the Stereo app is really cool. What you do is you you download the app, you sign up, look for me, I am at Torrez, T-O-R-R, easy, Thomas is at Serious Pod, and you'll get the little notifications of when we're about to go live and you can talk to us live and ask us questions. So, you know, we're looking for ways to increase that interactivity with you. This is not replace our monthly Q&A's, we're going to continue to do that, uh, but this is just uh us being able to get out, bring you more of the show, uh, bring you that content, and and have you interact with us uh live.

0:33:32 Thomas: But this is exclusive to The Stero app, so you gotta get on that. Go find that at your app store, whatever app store you use. I am excited to hear from you. You guys get to be a part of the show and ask us whatever. There are so many issues. There's even more stuff to cover now than ever. You know, it's in a weird way, you know, people were worried what we talked about after Trump, but without that clown horn clogging up the Twitterverse, there's even more cool stuff to talk about.

0:33:58 Andrew: Absolutely. So make sure you join us over on Stereo, that is every Wednesday, day 8 p.m. Eastern, 5 p. m Pacific, on the Stereo app. Look for me, I'm at Torrez. Look for Thomas at Serious Pod, or just start searching for Opening Arguments, you will come across it, and and we'd love to see you there.

0:34:20 Andrew: So one of the core bargaining issues concerns the remuneration to be paid a registered news business for making available of the registered news businesses covered news content by the designated digital platform service. So, again, that's that little news thumbnail, right? Google doesn't pay you for that. Facebook doesn't play us for putting out Opening Arguments. They certainly should. So so this particular proposed bill, there's some regulatory component to it, but basically it is a forced arbitration. And it says that the covered news providers then have to go arbitrate with the designated digital platform services, that is, Google and Facebook, before an arbitrator to come up with a lump sum amount, that that is the remuneration amount for paying for the registered news business for the making available of their news covered news content by the designated digital platform for two years.

So it cover a two year period. That is Section 52 ZX, and that is the big issue that is covered here. And and Facebook and Google have taken slightly different approaches to this. But but before I get into their approaches, I want to explain on how that power imbalance point got translated on its way to becoming a bill. OK, and that is if this bill passes in Australia, Facebook and Google will not be required to give Opening Arguments one dime for anything.

0:36:03 Andrew: OK. Never minding the fact that covered news content is defined as, quote, content that reports, investigates or explains current issues or events of interest to Australians. That's us. Right. It absolutely is us.

0:36:19 Thomas: Well, except the Australians part. Well, I guess it's two Australians about not usually Australia.

0:36:21 Andrew: No, Australians love us. Yeah, no, but events of interest to Australians. And yeah, the way in which the United States is falling into the Pacific, like, you know, is is certainly of interest. But the bill specifically applies on the remuneration issue only to a registered news business corporation. And that has an economic threshold. You've got to do over $150,000 worth of business in Australia. You uh and then yeah

0:36:28 Thomas: Oh, okay. Yeah, you guys love us. Yeah.

0:36:52 Thomas: Sorry, Australians. You got to pony up the dough. Here we go. We got to make this happen. Get a GoFundMe together.

0:36:55 Andrew: Yep I I would love it if if we could get a gofundme together and and become a registered

0:37:02 Thomas: Oh, get us to be. I feel like this is a win-win for us. I'm going to have a hard time making this about anyone but us. Yeah, you need to give us that money so that we get more money from Facebook. But you love us. Do it.

0:37:03 Andrew: Uh I I all right you're you're Wrecking My Plans here but

0:37:19 Thomas: You're right. Sorry. Let's recast this as a service that we're doing for Australians.

0:37:20 Andrew: Yep Yeah. So, yeah. And and that's ultimately what it's about to the news entities that qualify. And again, News Corp is the overwhelming majority of the news in Australia, which is kind of sad. It's the question. It's a question of how much they're going to have to be paid by Facebook and Google. Google. Facebook's argument, and I throw this out here, I suspect a lot of people will have an opinion about this. Facebooks argument for sort of taking the hard line approach is, yeah, we're different than Google. Google scrapes content and then rebroadcasts it when you search. What we do is, we let you post to your page. And then, And, you know, there's some algorithms that, you know, promote and

0:37:41 Thomas: Yeah. Really sad.

0:38:12 Thomas: Yeah.

0:38:12 Andrew: Disseminate. But basically, everything that opening arguments puts out on Facebook is something you or I have posted. We've affirmatively said, yeah, we want to stick this on Facebook. So, right.

0:38:23 Thomas: Yeah. And nobody sees it because Facebook says, hey, if you want any of your followers to see it, pay us money. And then we say, well, we're not doing that. So we don't really use the page anymore because Facebook is garbage. But still.

0:38:33 Andrew: Yep. But but notice that like, Yeah, that, that this, that I think there is kind of an underlying difference in approach to the content. But that, see how that, that the same, like, imbalance of power can come out, but that, you know, this particular legislation, in my view, you know, does nothing to address that imbalance of power. Right. It certainly is not going to help, you tiny local Australian newspapers stay in business. It's just, how do we transfer ad revenue from one gargantuan company to another? Facebook and Google have approached this rather differently. Google has announced a new, as of yesterday, global partnership with News Corp, in which they will essentially remunerate News Corps for using their stories.

It also includes, this is the News Corp press release, which made me icky just clicking on it, the development of a subscription platform, the sharing of ad revenue via Google's ad technology services, the cultivation of audio journalism, hey, maybe that means us, and meaningful investments to innovative video journalism by YouTube. That's Google's approach. They were, let's cut a deal with News Corps now. Now, Facebook, on the other hand, has blocked us and and notice that the the overreach here. Right. So I've talked about how bad News Corp is in this. We've talked to Google's actions. Facebook has said that first they said last year when this was being proposed, they said, assuming this draft code becomes law. It is not law yet. We will reluctantly stop allowing publishers and people in Australia from sharing local and international news on Facebook and Instagram. And then they decided to implement that, even though this has not become law, I guess, out of a

0:39:09 Thomas: Yeah. Yeah. Ugh. Yeah, yeah,

0:40:36 Andrew: Misguided effort of saying, well, this is what's going to happen if it does become law. Um, you know, to try and get, and, and I think the backlash, I, I think they misjudged that one pretty badly. We'll find out.

0:40:37 Thomas: Yeah.

0:40:46 Thomas: But You know, what's funny is like, I don't know. Now I'm leaning toward, maybe I almost agree with it. Maybe it's just because I hate Rupert Murdoch. But the idea that Google's like, the idea that there's a situation in Australia in which one POS billionaire controls all of the news, and then they pass a bill that's like, that guy's not making enough money is the problem. And then they're like, hey, big corporations, give him more money. It's just, I don't know. I mean, I don't know what the right thing is, but that situation pisses me off. So maybe I kind of am more sympathetic to Facebook being like, all right, fine, I'm taking my ball and going home.

0:41:25 Andrew: Well, and, and, and that's what they've done, and they, but they've gone so in an overly broad man, right, like, we're not a registered news business, you could say we won't allow you to share stuff from registered news businesses, right, that would better approach, yeah.

0:41:33 Thomas: Yeah. Ooh, that's interesting. Well, then it would only be people like us could deliver news to Australians via Facebook.

0:41:47 Andrew: That would be really good, probably,

0:41:48 Thomas: That would be weird, but also it would be good for us, but also I bet a bunch of YouTubers, a-holes would like get in on, you know, there'd be other bad sources that, yeah.

0:41:57 Andrew: You know. Look, there's no, there's no easy solution, um, It it really Is and this is why I I enjoy diving into, right, well, because that there is, right, every side has points that they can make that are sort of in their favor, right, yeah.

0:42:00 Thomas: This is a weird bill. This is this is weird situation. I don't know what to think. Yeah. So, apologies If I missed this, why did this get, pat, is this a Rupert Murdoch, uh, lobbying effort? Why would they even do this? Okay.

0:42:21 Andrew: It is 100% Rupert Murdoch lobbying effort in light of, right, the A Triple which, as far as I can tell, is sort of the equivalent of of our Consumer Protection Financial Bureau. Right. Like it is meant to protect consumers. And the report. Right, is talks about like, you know, the plight of local news sources. Right, and and and there is, right, again, right, side has points that are in their favor. In connection with the report, the point that's in their favor is, yeah, we're hitting this weird situation whereby local journalists are the ones providing the content, doing the work. And yet those papers are drying up and going out of business, and they're not getting any of the money.

0:42:24 Thomas: Yeah.

0:43:15 Andrew: Instead, you get, you know, Google that comes along. It has an algorithm. It trawls. It scrapes the content and and then sells it again with advertising and makes billions. And that's a non-sustainable. Right. That's a tragedy of the commons kind of situation where, like, Google depends upon local news in order to, in order, order to monetize its searches, but it isn't sharing any of the revenue with local news providers. That's a real dynamic, right? It's a really real problem and a real issue. So I can understand why the Australian Competition and Consumer Commission came up with their report. I have read it.

0:44:00 Andrew: There's a lot in which I agree. But translating that from government commission says here's a problem to oh here's the solution is where things, uh, went off the rails, so

0:44:12 Thomas: What a weird thing, anyway. Go fund me right now. Australians give us 150,000. Does it, it have to be a one-time thing, Andrew? Can we do a, is it a 150,000 a year? How do we get in on this?

0:44:16 Andrew: Yeah.

0:44:28 Andrew: Yeah, but, look, it, it will work, it's a yearly thing. This is section 52, M1 on page 13 that says, um, the, uh, for purposes of this division, the requirement is that the annual revenue of the corporation as set out in in the corporation's annual accounts prepared in accordance with generally accepted accounting principles exceeds one hundred and fifty thousand dollars for the most recent year for which there are such accounts, or for at least three of the five most recent years for which there are such accounts, so, yeah.

0:44:32 Thomas: Okay. Okay. Look, Australians, this hurts us more than it hurts you. I, you know, we hate to be in this position, but we need to pay us $150,000 every year so that we can give you news.

0:45:00 Andrew: Well, three years out of five.

0:45:06 Thomas: I mean, we have to, essentially, we have to do it for three straight years to get counted in on this, as soon as we could.

0:45:11 Andrew: Correct, yeah, so, so, so get crack at patreon.com slash law.

0:45:15 Thomas: We don't like this anymore than wait. Is this Australian dollars? Maybe that's like 20 bucks, you know, is there, how's the currency?

0:45:21 Andrew: It Is, yeah, it is Australian dollars. As of right now, one Australian dollar equals zero point seven eight U.S. dollars, so, uh, about three quarters of a dollar, yeah.

0:45:32 Thomas: Okay so yeah you know, it'd only be like 130,000, 20,000 or something for us so that's a it's a a pittance.

0:45:34 Andrew: Yeah. Yeah. That's that is totally doable, yeah.

0:45:41 Thomas: All right. Well, that's not happening, but it's a fun idea anyway. Uh, wow. What a weird bill. Do you have any, so your top line takeaway here is every side is kind of wrong or

0:45:52 Andrew: Every side seems like they're totally wrong on this.

0:45:53 Thomas: Right. Yeah. I don't know who, yeah. What A Mess. Okay. Well it's A Mess everybody.

0:45:55 Andrew: Yeah, um. There you go, case closed.

0:46:04 Clip: Ask the president of Finland a question, please.

0:46:10 Thomas: Right the what, Georgia SR-100, what's going on there?

0:46:14 Andrew: This is a proposed constitutional amendment in Georgia as to provide for statewide grand juries. What's a statewide grand jury, you ask. It's a thing that Georgia Republicans just made up. It, it would say, I'm not making this up, that, uh, when you use a statewide grand jury you summon and impanel it from across the state. Why would you do this? Because you're insane. Right.

0:46:43 Thomas: Oh, man.

0:46:43 Andrew: Like, I mean, like, yeah, people have got to drive like seven hours to go. Say it's nonsense, right, um, and the idea then of course is if if, uh, it has to be statewide, that means you're

0:46:46 Thomas: Yeah. Right. Yeah, they don't want to, don't grand jury in Atlanta, you know, being able to, oh, gosh.

0:46:58 Andrew: In Atlanta. Yeah. But this is so wildly, idiotically, ridiculously unworkable and impractical. Right. You've got to get people to drive across the state. You wouldn't want to use these statewide grand juries every time you need to indict somebody. Right. No, no, no. No. The constitutional amendment defines the specific subject matter jurisdiction. You want to take a wild guess?

0:47:26 Thomas: Hmm. Election law.

0:47:28 Andrew: Yeah, it says, quote, and again, this is just perfection. "The subject matter jurisdiction of statewide grand juries shall extend to the investigation and indictment of persons or legal entities for any crime involving voting elections or a violation of the election laws of the state and all related crimes." End of quote. So it is a, we want you to have to get this idiotic grand jury that's going to be overrepresented by white people together before you can indict Donald Trump. Here's the good news. First, you would have to amend the state constitution to do so. And second, there's not a chance in hell you're going to able to amend state constitution to do so.

0:48:14 Andrew: I looked this up. The Georgia Senate has 56 members. They are split 34 to 22 Republican to Democrat. You need 38 votes get to two thirds, which is what you need to amend the Constitution, which would mean four Democrats voting for an obvious measure to protect Donald Donald Trump not happening. But I think this does show that Republicans are running scared in Georgia. They know that their state is about to indict Donald Trump for obvious election fraud. And I, for one, couldn't be happier.

0:48:53 Thomas: So is this like an opposite of a bill of attainder? Is this like a bill of detainder, untainder? Unobtainiander?

0:48:59 Andrew: It it it an obtaining there. I love that. Yeah. No, you

0:49:04 Thomas: Is this allowed? Are you allowed to do this? Like I, yeah.

0:49:07 Andrew: Are allowed to do this. OK. But but it does go to prove how ridiculous the Republicans bill of attainder defense was in the Senate. Right. Like that, that they would then turn around and essentially try and amend the Constitution of Georgia. Right? Right. Like, look, this would go. This would be taught in the history books and you'd looking in and it's like, oh, I see. Like Amendment One, you know, freedom of speech and like, what the hell is this amendment here? They're like, Oh, yeah.

0:49:09 Thomas: Okay. Yeah. The election law exception to the grand jury rules of what? What?

0:49:43 Andrew: And and and they would have to then teach like, well, there was a brief time period in the 2020s in which 60 percent of our state lost its goddamn mind. So. But, yeah, you can laugh about this because this is desperate. It is not passing.

0:49:50 Thomas: Yeah. Yeah. It's not passing. Ah, good.

0:50:01 Andrew: It's not clear to me it's even going to pass as a proposed amendment. Right. That it's going to get twenty nine votes. Twenty five Republicans signed on to this. So that leaves nine who are unaffiliated. And the question is, are can you get four of those nine to also sign on to this last ditch deal to try and help Trump? And I don't know. I haven't looked at it person by person, but it's possible you don't even get that, which would be delightful.

0:50:01 Thomas: All Well, just enough time for some actually really amazing announcements. For one, One I wanted to bring up, I teased it last week, but I just had Carrie Poppy on Serious Inquiries Only talking about recovered memories and this article for The Cut written about sexual assault allegations and utilizing recovered memories, which is a very unscientific thing. It's a messy situation, but it's also super interesting. And Carrie takes us through the science of it and what's going on. And we love Carrie. She's, of course, from Oh No Ross and Carrie. We go way back. We went to college together. It's a totally random, weird thing. But anyway, I just want to throw that out there since I didn't have an SIO last week. That's the one I was plugging for this week.

0:51:16 Andrew: I, I love it. I am very, very excited to listen to that essay. I think, think you told me you get into like the satanic panic. And I you know, as, as those who came to our LA live show know, like I could sit and, uh, and talk to Carrie for hours. I did, uh, and I could listen to her for hours, which I do on her show.

0:51:22 Thomas: Yeah, a little bit.

0:51:34 Thomas: So what's going on now? Aisle 45, I ask, as I've already listened to it,

0:51:35 Andrew: Okay. We had, I, I think, really, really fascinating interview with Ellie Honig, uh, coming in, uh, post impeachment and looking at, uh, the actions of the Fulton County DA and whether they portend, uh, the imminent indictment of Donald Trump in Georgia for election fraud. I got to pitch my theory to him, to which he agreed. Um, it was, it was a lot of fun and Um, and it was great, episode.

0:52:03 Thomas: It was great. I've learned as a lawyer to not ask questions that you don't know the answer to, so I already knew that was a great episode and that's why I asked that question. Oh, and this one, Andrew, I, whoo, I watched the Britney doc and I can't believe I'm saying this, but hashtag free Britney, Britney, free Britney. I'm all in. I can't wait to do this episode that we, cause I don't know if I'm going to be wrong or what, you know, I can't wait to hear an expert's opinion on it, but wow, that Britney doc, way more compelling than I would have thought.

You know, as somebody who does not give a crap about Britney Spears, it didn't really either way, you KNOW, I don'T hate her or anything. I just didn'T care. Uh, but wow. What a compelling, it was, by the way, it's a New York times, uh, standalone doc on Hulu. If you want to check that out, uh、 the the Brittany documentary, but we are going to be recording a free Brittany bonus episode for patrons with none other than ace associate Morgan Stringer. Maybe she'll sing some Brittany for it. No, I don't know. I assume she's

0:52:09 Andrew: Well, You're Way.

0:53:00 Thomas: Covering the law.

0:53:00 Andrew: To put her on the spot.

0:53:01 Thomas: Yeah. I'll sing. How about I sing the Brittany?

0:53:01 Andrew: Yeah, oh, there you go. Yeah, I'm, I, I'm gonna be as close to a bystander as, uh, as we can get, uh, because I know, uh, Morgan has been just, uh, hip deep in Britney Spears guardianship law and I cannot wait. We're going to record that, I think, tomorrow, get it out to patrons as soon as possible if you're a patron at any level and you love Morgan Stringer, which how could you not, and you'll love Britney Spears, which how good you're not. Um, head on over patreon.com/law for hashtag free Britney. I'm super duper excited about this. Yep.

0:53:41 Thomas: It's a weird situation. I cannot. And again, like you don't have to be a Brittany QAnon person Cause there's a lot of weird conspiracy theory around it to, uh, also at least, um, be weirded out by the legal situation happening. So it's, it's not just like, you know, you're dipping into some weird conspiracy thing. Uh, it'S, itS a really weird situation. I mean, I don't know how it's still going on, but maybe there will be some legal explanation that will make sense. Uh, can't wait to find out. And by the way, maybe, uh even if you aren't a fan of that or something also Law'd Awful Movies just out, uh, this was a ton of fun, Your Honor, the new Brian Cranston, uh, rip uh, Breaking Bad ripoff kind of, uh, we did episode one of that and record a lot of the movies, oh, that was so much fun, uh, the breakdown. So if you've seen that, uh, you can also check that out if you're a patron at the two dollar level and up. Yeah.

0:54:14 Andrew: Yep. And Uh, and, and one last thing, I, I wanted to promote, uh, a couple of essay contests because people will write in and say hey, we'd like to give away money, uh, and maybe your audience would like in on that money and I say yes, maybe they would. So first, uh, yeah, you you are, you, that is It's true. So sadly, neither of these are open to Australians.

0:54:52 Thomas: Australians you're gonna need the money to pay it. No, Oh, damn.

0:55:02 Andrew: So but first is Our our buddy, Andrew Seidel, all of Andrew Seidal, not just his butt, has ask us to announce the Freedom From Religion Foundation's uh 2021 Cornelius Vanderbrook Memorial Essay Competition for law school students, so, Uh, you must be a U.S. uh, a North American, so you'd be Canadian, uh, law school, uh, during the 2020 to 2021 academic year. They are giving away, it's like, over $10,000. First place is $4,000, so, you know, this is an awfully nice essay contest. And I love the topic. So the topic is why history shouldn't justify violations of the separation between state and church. And the the prompt is, what is really the most important case right now if you are following First Amendment jurisprudence, and that is Town of Greece versus Galloway. We've talked about

0:55:03 Thomas: Use a VPN.

0:55:20 Thomas: Sweet.

0:56:03 Thomas: Yeah.

0:56:03 Andrew: It a bunch of times. Andrew's talked about in that, in that case, the Supreme Court wrote that, quote, "The Establishment Clause must be interpreted by reference to historical practices and understandings," end of quote. And so FFRF wants you to write a law review essay on why that's nonsense. I'm going to include a link in the show notes so that you can go click and and figure out the precise rules and enter, fifteen hundred words. Man, you're a law student, you can knock that out standing on your head. I know. A It's an, it's fantastic contest and a an opportunity to to get yourself seen by our friends over at the FFRF. And at the same time, I happen to be on the Federal Bar Association for Maryland, our statewide chapter essay contest.

0:56:53 Andrew: And so I am really, really pleased. I know we have high school students who listen to the show. So you must be a high school student in the state of Maryland. And I realize that's going to eliminate a lot of other folks. But but I do want to share this out here because the question that I proposed is the one that we took, is a quote. What should be the role of attorneys in combating systemic racism and or advocating for marginalized groups in the legal profession? Profession, so I am very, very pleased that they took my suggestion. I think it's really, really important topic, um, for high school kids to start thinking about and writing about, for anybody really, uh, and um, uh, if you meet those criteria, if you are a high school student or parent of a high school students, will include the contest rules link in the show notes, um, this is a thousand word word essay, so, you know, even easier. And um, the, the main prize is a thousand dollar scholarship, so, uh, get, get out there and, uh, and get writing. Have

0:57:55 Clip: And thank you, Let's go!

0:57:56 Thomas: Now it's time to thank our new patrons at patreon.com/law. Uh, you, what good timing, new patrons, because there's so much good stuff coming your way. That We already said Britney Doc, we got the Law'd Awful Movies, it's a lot of fun. So why don't you start us off?

0:58:10 Andrew: All right, thank you to Emily Trapp, Torian Gallant, Dustin Neuman, Johnny Shaw, Joshua Bellingrath, and apparently the sun. Wow.

0:58:20 Thomas: Well. I gotta say, Johnny Shaw is a strong name. You got to be a detective or something. I don't know. Johnny Shaw.

0:58:25 Andrew: Yeah. Johnny Shaw is a is a really, really

0:58:29 Thomas: Tell you what, when we write our law good movie, maybe Johnny Shaw get in there. It's a lot like Johnny Law though. I'm realizing that's why it sounds so good.

0:58:31 Andrew: Oh, Yeah. Johnnie Shaw needs to be like the uh, the investigator, yeah. Yeah. Well, that's why he's the the the he's the private dick. See? Yeah. All right.

0:58:46 Thomas: Yeah. Thank you to Sayonitis. Zaid Al-Hunadi, Will, John Brockman, Jason Kersey, and Nathan Burnett.

0:58:56 Clip: Oh, no associate of this firm has ever failed the bar exam. No kidding.

0:59:02 Thomas: And now it's time for T3BE. You know what? I've decided, Andrew, I'm just going to get this one right. I don't know why I haven't decided this earlier, but it's time. I need to get one right, so I'm going to do it.

0:59:13 Andrew: You considered as a strategy getting the question right?

0:59:16 Thomas: Yeah. No, this is the first time I've considered that. And I think it'll help. It should going forward.

0:59:17 Andrew: Yeah, oh oh all right well Here you go, Thomas. A man sued A railroad for personal injuries suffered when his car was struck by a train at an unguarded crossing. A major issue is whether the train sounded its whistle before arriving at the crossing. See why that would be the case? The railroad has offered the testimony of a resident who has lived near the crossing for 15 years. Although she was not present on the occasion in question, she will testify that whenever she's home, The train always sounds its whistle before arriving at at crossing. Is the residence testimony admissible? A,

0:59:23 Thomas: Okay. Okay. Okay. Okay. Yeah. Ha ha. Hmm. Interesting.

1:00:00 Andrew: No, due to the residence lack of personal knowledge regarding the incident in question. B, no because habit evidence is limited to the conduct of persons, not businesses. C, yes, as evidence of routine practice, or D, yes, as a summary of her present-sense impressions.

1:00:20 Thomas: So I will tell you my first instinct and you know, I, you can believe this or not because it was in my own brain, but my first instant just reading the question was, well, it seems like you could establish a habit of a person, but not a train. Like who, who knows if they put a new, you know, a new Mr. Conductor in there, whatever. I don't know how trains work. I just, my train knowledge comes from Thomas the Tank Engine. So that's, I'm going to assume how it works. It seems weird to establish a habit of it. And that was my first instinct. And that's answer B, like word for word, almost, except I was going to say train, not business, but yeah, same thing. And so that's my instinct. However, let's make sure I get this wrong. So I should probably read through and second guess myself and get it wrong. Uh, so is the testimony admissible? My first instinct is I feel like you could do this if it were a person.

1:01:08 Thomas: You could say, you know, oh, I, you Know, I can testify and it's up to the jury to establish how much they think the testimony would matter. You know, I think you allow if I, if I testify that I'm the conductor of this train, every time I sound the thing, I Think that's testimony that would be okay. You know? I don't, and it it's Up to the Jury to wait that, I guess. But if it's just the train, like that doesn't, you know, who knows if they, again, like if the circumstances are the conductor was drunk or they put a new person on the job or they, you know, it doesn't this strikes me as really, really, really bad evidence. And I, you know, maybe it's possible you would allow this for some reason, but my instinct is no. So let's go through it. A, no due to the residence lack of personal knowledge regarding the incident in question.

1:01:54 Thomas: I think I think it isn't a because of the reasons I said, you know, a lot of this bar exam is getting the best bad reason, which is really tough. You know, sometimes it's really hard to isolate like, oh, is it no because of this or is it no because OF this other thing that would kind of take precedence, you know, like maybe this other no answer would be would be something that happens first or more specifically or something. Thing. But I just think that you would be able to testify as to a habit kind of, but not in the case of a train. So B, no, because habit evidence is limited to conduct of persons, not businesses. I love that answer and I can't wait for it to be wrong for some reason, but I'm really leaning toward B. C, yes, as evidence of a routine practice.

1:02:39 Thomas: You know, maybe. I guess maybe that'll will be like, yeah, no, it's a routine practice, so the blah-ba-dee-blah, you know, okay, maybe it could be C, that could be a way I get it wrong. D, yes, is a summary of her present sense impressions. That seems terrible to me. I think not D, that would be, you Know, anything. I think that would allow any testimony. So, let's see, let me, one more, one more last check in an effort to get this one right for once.

I mean, I think it is between between B and C probably. And I think like, maybe there's some way you could make C be the right answer, but I I'm just going with B. I think it would be absolutely, you know, if, if they were testifying as to the specific person in charge of the train, which I think is a conductor or the, or the train has a face on the front of it that drives it. I don't know what, you Know, I don'T know how trains work. I haven'T used a train in a long time. Um, I think It's B final answer let's get this one right here we go pork the streak pork the street b final answer

1:03:40 Andrew: All right. And if you'd like to play along with Thomas, you know how to do that. Just share it this episode on social media. Include the hashtag T3BE. Include your answer and your reasons. Therefore, we will pick a winner and shower that winner with never-ending fame and fortune. Fame and fortune, not guaranteed.

1:03:55 Thomas: And that's our show. That was one of my favorite shows we've done. I mean, I love every show we do, but, like, that had it all. What a great show. A deep dive, everything. Ah, good stuff, Andrew. This show rules. Tell your friends. Share it out. Write a review. You know, do a... Share the show. More people should have access to Andrew's brilliant information. I'm just saying, not biased at all.

1:04:07 Andrew: I love doing the show with you, Thomas. Thank you so much. Yeah.

1:04:22 Thomas: And as a reminder, if you want more Andrew, you can always find us every Wednesday, 5pm Pacific, 8pm Eastern on the Stereo app. We just did it last night. It was so much fun, and every week we'll be on that Stereo app, 5pm Pacific, 8pm Eastern. Find us there, come say hi, ask a question. We're trying to get to more. I'm trying to train Andrew to get through more and we're improving we're improving this, you know, over time. So find us, their, get that Stereo app, yeah, so go download the Stereo app, follow at SiriusPod and at Torres, and you know, you'll get a notification or you'll see when our live events are scheduled. So there you have it. All right, we'll see you next time. Thanks so much for listening.

1:04:43 Andrew: We did. We did, I think, 15 questions. Yeah. And it we play your voice. So that's it's super. It's super cool. Thank you.

1:05:07 Clip: I move for a bad court thingy. You mean a mistrial? Yeah, that's why you're the judge and I'm the law talking guy.

1:05:41 Clip: www.openargs.com. Be sure to join the Facebook group at facebook.com/groups/Yodel Mountain and follow us on Twitter at OpenArgs. This podcast is a production of Opening Arguments Media LLC, all rights reserved. It is produced with the assistance of transcriptionist Heather Leverage, production assistant Ashley Smith, and additional contributions from Morgan Stringer and Debra Smith. Special thanks to Teresa Gomez, who runs our live shows and heads up the OA Wiki, follow at OA Wiki on Twitter. Additional thanks to the moderators of the Opening Arguments Facebook community, Emily Waters, Alicia Cook, Eric Brewer, Natalie Newell, Brian Ziegenhagen, and Teresa. And finally, thanks to Thomas Smith, who edits the show and created the fabulous theme music, which was used with permission.