OA487: How To Overturn Citizens United

Transcript

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

0:01:17 Thomas: Hello and welcome to Open Arguments. This is episode 487. I'm Thomas. That's Andrew. How you doing, my friend?

0:01:23 Andrew: Hi, I am fantastic. Still on a math high from last episode.

0:01:26 Thomas: Mmm. That was a lot of fun. We've though got even more fun stuff today. One more plug for our Patreon Q&A, um, we are doing that Q&A on Tuesday the 4th, which could be today for you, at 3 p.m. Pacific, 6 p.m. Eastern, and of course the questions were on the Patreon thread on patreon.com/law, but everybody gets to hang out, participate in the chat, it's a lot of fun, interact with each other, interact with us, and uh, do some, do some live Q&A. I can't wait. So be there, be square. I don't know how big of a threat being square is anymore. Does anybody care about being a square? They're like, yeah, I'm a square, it doesn't matter, it's 2021, who cares? But anyway, exactly all Right. Well, let's get to our show.

0:02:01 Andrew: It is hip to be square. Yeah.

0:02:11 Clip: Chief Justice of the Supreme Court. What great men he would join. John Marshall, Charles Evans Hughes, Warren Burger, mmm, Burger.

0:02:24 Thomas: So SCOTUS news, eh? I'm sure this will be great because the SCOTUS is great. And every time there's SCOTUs news, it's a great time, right?

0:02:31 Andrew: This is uh exactly what you would think. This is a crazy right-wing activism warning for you. So um, just last week, the Supreme Court granted cert in a case called New York State Rifle and Pistol Association versus Corlett. And if that name sounds familiar to you, uh, it's because we, we discussed the last New York Rifle and Pistol Association case, which was versus the City of New York. That was the blatantly ridiculous challenge to a rule about the transportation of firearms that New York no longer followed.

And that led Sheldon Whitehouse to file the brief for which he has been so rightly lauded that said, um, hey look, you know, if the Supreme Court weighs in on this, it will only confirm that you are a bunch of right-wing activist hacks. Um, and uh, I, you know, coincidence, you decide. Six-three per curiam opinion, uh, that says we lack jurisdiction in that, in that case. So that was back when RBG was on the court. Um, you of course had the Alito, Thomas, Gorsuch contingent, which said, yeah, we don't care. But the per curiam opinion, likely written by Chief Justice Roberts, said, yeah, no, no jurisdiction. But then he was joined by Brett Kavanaugh, who penned a separate concurrence that said, yay, I agree, there's no standing here.

0:04:05 Andrew: But But, quote, I also agree with Justice Alito's analysis of Heller and McDonald. Those are the two everyone knows with DCV Heller. And McDonald was the case that extended it to the states. Right. And I share Justice Alito's concern that some federal and state courts may not be properly applying Heller and McDonald, the court should address that issue soon, perhaps in one of the several Second Amendment cases with petitions for certiorari now pending before the court. End of quote. That's an outrageous thing to say. OK, it cannot be said highly enough that you don't sit on the Supreme Court and look at other cases and go, OK, well, this case doesn't it doesn't have standing.

But like are screwed up the law and I sure would wish that we would take some gun cases. That's insane. You don't say that sort of thing. But kind of do some math here. It was a 6-3 case. Yay. Except that RBG has since passed away and been replaced with, shooty McBang Bang in Amy Coney Barrett. Right. So make that five to four. And also in the majority was Brett Kavanaugh, who said, no, look, look guys, I'm on your side. This case sucks, but I'm totally on your sid here. So that gives you a pretty clear indication of where this present court is likely to go.

They did. They in fact denied cert in all 10 of those pending cases, even though you only needed four votes. So some strategic concerns at issue there. And now they have taken another New York Rifle and Pistol Association case, this one involving New York's concealed carry law.

0:04:56 Thomas: Well,

0:05:45 Andrew: And I want to read you the law, the status, and what the briefs request, and the specific question that the Supreme Court has said that it will consider. So New York's law 400.002 F of the New York penal law says a license for a pistol or revolver, other than an assault weapon or disguised gun, shall be issued to, and then subsection F is, have and carry concealed without regard to employment or place of possession by any person when proper cause exists for the issuance thereof. And if you're sitting there going, like, wait a minute, that, that's it.

0:06:30 Andrew: That's it. So for 100 years, okay, since old-timey times, New York has allowed you to carry up a concealed carry firearm throughout the state where you have, and this is the standard from the cases, quote, an art, an actual and articulable need to do so, right. That's what it means. Right, they get to say, what is proper cause? Well, can you articulate a real reason why you have to? Or is it just, I want a gun and I want to hide it from people? Right. You, if you can't do that, they've denied the permit.

0:07:09 Thomas: Does that not count as a real reason under this law? I don't really know how the... But

0:07:12 Andrew: Yeah, I mean, you have to, it's actual and articulable. I want a gun is not sufficient.

0:07:15 Thomas: What is it? Yeah, but then what is? I'm a secret agent. I'm an agent. I have, I'm hit man.

0:07:18 Andrew: So, for example, well, I work

0:07:21 Thomas: I don't understand.

0:07:25 Andrew: A dangerous area. I need to protect my family. I am a security guard. I am in a high-profile profession, right? Lots of reasons. Look, you you and I aren't gun people. I would not concealed carry. I think having concealed carry like overlaps with, you know, all of the problems that we talk about when we discuss police brutality cases and expanding the number of people who are hiding guns on their person. Right. Is a terrible, terrible idea.

0:07:29 Thomas: Huh. Yeah. Yeah, all That accepted. I still just wasn't sure, like, what the the state or whatever considers like an actual reason. I thought, you know, if you just say I want a gun, is that, I don't know, maybe I guess that's that's what it will turn into after the court has its way with it, as long as you say you want one.

0:07:54 Andrew: Yep.

0:08:09 Thomas: A

0:08:09 Andrew: So what this case says is that, well, first let's read what the Second Circuit said, okay, in summarily dismissing this case. And then so the case was summarily dismissed at the district court level and then affirmed by the Second Circuit, which in a three paragraph long opinion says New York State Rifle and Pistol Association, Robert Nash and Brandon Koch appeal from the judgment of the U.S. for court dismissing for failure to state a claim their section 1983 action, right, that is arguing that their civil rights have been violated, alleging that New York's requirement that an applicant for a license to a carry a concealed handgun outside of the home show that quote, "proper cause exists for the issuance thereof," violates the Second Amendment. Uh, and then they say, um, our long-standing precedents show no, it doesn't go away. So the cert petition, upon which which was this, was granted, says we want the court.

0:09:07 Andrew: This is what they asked the Supreme Court for to determine whether the Second Amendment allows the government to prohibit ordinary law abiding citizens from carrying handguns outside the home for self-defense. So think about that relief that they're asking. What they're saying is a state may not impose restrictions upon individuals for when they can concealed carry a firearm within that state. I cannot is constitutionally prohibited by this bonkers new imaginary Scalia invented reasoning of the Second Amendment. Now, will there be a couple of carve outs? Yeah, because I read the New York penal law. Right. It didn't apply to assault weapons. And, you know, they said, you ordinary law abiding citizens and the Supreme Court is already trying in granting cert. They already know that there's going to be a cluster bomb. So they say, OK, we're granting. But we want the question you to brief to be, quote, whether the state denial of petitioners applications for concealed carry licenses for self-defense violated the Second Amendment. That sounds less Wild West Yosemite Sam shooting his guns in the air, you know, yeehawing, but it's exactly the same thing.

0:09:38 Thomas: State can't do that? Oh, my god.

0:10:32 Andrew: When the Supreme Court, probably 5-4, maybe 6-3, says that the New York state violated the Second Amendment by requiring these two guys to state a cause to give a reason for why they needed to carry a concealed handgun, that the state can't do that. This is so completely out of touch with reality and where the average person is. There you go.

0:11:08 Andrew: It's it's they

0:11:06 Thomas: We're gonna get to the point, like, it's on guns. At least it seems as though we could get to the point where living in a blue state doesn't even help you, or living in an estate that wants to restrict guns doesn't help you, if the Supreme Court gets to say so. I don't care about states' rights at all. God, frustrating.

0:11:26 Andrew: Do not on this issue. That is exactly right. Yeah.

0:11:30 Thomas: One well, this is really devastating news. It's almost like the Supreme Court sucks and we got to fix the court. Do we have any uh segments upcoming, Andrew, that might tell us anything about un-porking the court?

0:11:42 Andrew: Oh, what a fabulous lead in here. So, OK, our main segment. Last Tuesday, there was a hearing of the Committee on the Judiciary's subcommittee on federal courts, oversight, agency action and federal rights. It has been recorded and saved at the judiciary website. And I would urge you to watch this. It is the best four and a half hours of your life that you will spend. Or you could just listen to the show either way. It is laying the groundwork for a future Supreme Court staffed with the kinds of judges that I have said ought to be on the Supreme Court. That is non-originalist, ordinary jurisprudence to tackle a dilemma that people send me all the time.

0:11:43 Thomas: Sure

0:12:33 Andrew: Right. Which is, hey, you talk about the importance of stare decisis and how originalists are, stomping on that doctrine and rendering it a nullity. Clarence Thomas having said, I don't think stare decisis applies to a decision I think is wrong, which is perhaps the stupidest thing any sitting judge has ever said. So, OK, you've you've argued at some length that stare decisis constrains a judge. But we have a terrible Supreme Court making terrible cases right now. Now, so wouldn't you fall into that same trap if you come up and, you know, you get a sensible a sensible court and they start disregarding the precedent of the Roberts court?

0:13:19 Andrew: Right. Like isn't aren't you stuck in a catch 22? And it's really, really good question. And I always answer it in in the same two ways. OK. And the first is announcing that you are departing from precedent is not something that should be taken lightly. And number two, that what we should look to and what courts for the past 30 years have looked to until this Supreme Court started messing with the rules again is the test from Planned Parenthood versus Casey. And we've talked about that a lot. I don't need to go back over the facts of the case, but look, that was conservative Republicans and personally pro-life Republicans, Anthony Kennedy and Sandra Day O'Connor, they would be moderates on this court, obviously, fashioned an opinion that said, if we were looking at this from the outset, maybe we would have come at a different way in Roe v.

0:14:09 Andrew: Wade. But we think Roe v. Wade is settled law and we're not going to reverse based on stare decisis. And here's the four part test that they set out in Planned Parenthood versus Casey. And They think about just how much this tracks the the argument that I made on why originalism is nonsense. They begin. This is pages 354 to 55 of the opinion. The obligation to follow precedent begins with necessity. No judicial system could do society's work if it eyed each issue afresh in every case that raised it. Right. So obviously what came first has to has to count in some way. The very concept of the rule of law requires continuity over time and a respect for precedent. OK, that's that's the first part. Then they say, but stare decisis is not an inexorable command.

0:14:58 Andrew: Right. When this court reexamines a prior holding, its judgment is customarily informed by a series of prudential and pragmatic considerations designed to test the consistency of overruling a prior decision with the ideal and the rule of law, and to gauge the respective costs of reaffirming and overruling a prior case. It's almost exactly what I set out, right? And I was not reading Planned Parenthood at the time. I mean, that's why when I, I mean just sort of parenthetically, like when I say my arguments against originalism are really like, this is just what lawyers do, like that's exactly what I mean. Like, you know, I was inadvertently quoting from Anthony Kennedy, right. Yeah. Yeah. Okay. So thus, for example, we may ask, and here I've numbered this for convenience.

0:15:46 Andrew: One, whether the rule has proven to be intolerable simply in defying practical workability. Yeah, that's pretty high threshold, right? Two, whether the rule is subject to a kind of reliance that would lend a special hardship to the consequences of overruling and add inequity to the costs of repudiation. Those are my strongest arguments against the the DCV Heller line of cases. Right. That like people have been relying on the idea that they could go live in a blue state and pass gun control for 200 years. And he just took it away from us.

0:16:21 Thomas: Wish conservatives cared about my right to live in a state that doesn't have guns every every which way. I wish we had some level of states' rights on that issue.

0:16:22 Andrew: Right? Right. Yeah. Yep. Three, whether related principles of law have so far developed as to have left the old rule no more than a remnant of an abandoned doctrine. That really happens a lot in free speech kind of cases where, you imagine that you had something kind of extending Schenck v. U.S. on the, you know, clear and present danger test. And then you're looking at it later and you're like, this is really an offspring of the clear and present danger test. And even though it hasn't been officially over, like we just, that's not the, that's not how we look at these cases anymore. So, you know, yeah. Or four, whether facts have so changed or come to be seen so differently as to have robbed the old rule of significant application or justification.

0:17:17 Andrew: And it is that fourth prong that Sheldon Whitehouse convened a committee to establish evidence to try and overturn two of the very worst cases of the past 10 years. And those are Shelby County versus Holder. That was the decision in 2013 that struck down Section 5 requiring preclearance under the Voting Rights Act. And everyone's boogeyman, Citizens United versus FEC, the 2010 decision that said money is speech or, you know, independent corporate expenditures are protected by the First Amendment.

0:17:42 Thomas: Yeah.

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0:19:41 Andrew: So look at both of those cases and the genius that is Sheldon Whitehouse. In Shelby County v. Holder, the Supreme Court, John Roberts' opinion. And by the way, as I read through this opinion, take a notice of the fact that there's zero originalism in this opinion, because originalism would get you a result that you don't like, right? Right. Because Section 5 is super duper clear. Right. Let's go by the plain meaning at the time, 1965, that it was written. You don't need to appeal to higher principles. Right? It just says if you are in a state that has historically restricted voting rights, and it defines them, there's an allocation methodology, methodology, then you have to go to either a three judge panel or the attorney general to get preclearance before you can restrict the right to vote in your state.

0:20:34 Andrew: That's not an ambiguous statute. It's not unclear what the plain meaning of it is. So you have John Roberts saying, I'm going to read here from the opinion, sections four and five were intended to be temporary. They were set to expire after five years. Um, and then it says in 1970, Congress reauthorized the act for another five years in 1975, Congress reauthorized for seven more years in 1982, Congress reauthorized the act for 25 years. And in 2006, Congress again, reauthorize the voting rights act for 25 years, by the way, that means that it expires next year. If you want to panic on that, um, uh, which, you know, put, put a pin in that one. Uh, then Then Roberts notes, Congress also amended Section 5 in 2006 to prohibit more conduct than before.

0:21:22 Andrew: Section 5 now forbids voting changes with any discriminatory purpose, as well as voting changes that diminish the ability of citizens on account of race, color or language minority status to elect their preferred candidates of choice. And then from that, this is exactly these words are exactly the things that, Professor Bode made fun of in his podcast appearance. I want to read to you, what right, John Roberts wrote in the prior Voting Rights Act case, which is case called Northwest Austin. We stated that the act imposes current burdens and must be justified by current needs. I want to bracket that for a second here.

That's true about every single law. Right. Like it's just saying, yeah, apply now, regardless of whether they're enacted. But specifically, but, we're going to give it extra scrutiny because we don't like the Voting Rights Act. And we concluded that, quote, a departure from the fundamental principle of equal sovereignty requires, that means between the states, requires a showing that a statute's disparate geographic coverage is sufficiently related to the problem that it targets. These basic principles guide our review of the question before us. Let me ask you, Thomas, are those basic principles written anywhere in the plain language of Section 5 of the Voting Rights Act?

0:22:01 Thomas: We're hearing them

0:22:42 Andrew: No, no, they're not. Now, right, all of a sudden, when we want to strike down a law. Now we care about what the purpose and ideals were underlying the Voting Rights Act. But then we have a clear factual finding by the Roberts court. By the way, is another way which you know that it's an activist court, because ordinarily courts would define defer to the fact finding determined by the lower courts below. That's what lower courts do. Lower courts decide the facts. Appellate courts decidethe law. So, nevertheless, despite the fact that the district court plainly held that the Voting Rights Act was still in force, and the Court of Appeals for the D.C. Circuit affirmed, assessing Section 5 extensively analyzed the record. By the way, this is not just me stating this.

0:22:42 Thomas: Sounds

0:23:29 Andrew: I am reading from the background section. So the Supreme Court acknowledges that the D.C. Circuit extensively analyzed the record and chose to defer to Congress's conclusion that Section 5 was still necessary. The Supreme Court decided to substitute its judgment for Congress and the lower courts kind of doesn't it? Again, I just, I'm gonna read Roberts, quote, "nearly 50 years later," that is after the passage of the Voting Rights Act, "things have changed dramatically. Shelby County contends that the preclearance requirement is now unconstitutional. Its arguments have a good deal of force. In the covered jurisdictions, voter turnout and registration rates now approach parity. Blatantly discriminatory evasions of federal decrees are rare, and minority candidates hold office at unprecedented levels. The tests and devices that blocked access to the ballots have been forbidden nationwide for over 40 years. Those conclusions are not ours alone. Congress said the same when it reauthorized the act, writing that significant progress has been made in eliminating first generation barriers experienced by minority voters, including increased numbers of registered minority voters."

0:23:48 Thomas: Kind of activist, if you ask me, does

0:24:41 Andrew: Minority voter turnout and minority representation in Congress, state legislatures and local elected offices. The House report elaborated that the number of African-Americans who are registered and who turn out to cast ballots has increased significantly over the last 40 years.

0:24:54 Thomas: This just say we fixed racism, racism is over.

0:24:57 Andrew: Fixed racism.

0:24:57 Thomas: Okay. It

0:24:58 Andrew: And then there was a chart, that John Roberts, It inserts into the record that compares voter registration numbers from 1965 and the disparity by race to 2004. And it shows, as you might expect, that the disparity between African-American registration and white registration has shrunk over time, has shrank to very little disparity. Right. Why? Because of the Voting Rights Act and because people like Stacey Abrams have done a hell of a job of mobilizing black voters to register. You might ask yourself, why does John Roberts get to choose voter registration as the measure of whether discrimination exists? And the answer is because he says so, that's why, so

0:25:00 Thomas: Says racism over. Time fixed, yeah.

0:25:48 Thomas: Because, like that,

0:25:48 Andrew: Yeah.

0:25:49 Thomas: Doesn't isn't the only place where voter just, you know, discrimination and intimidation would happen, right? Can't

0:25:52 Andrew: Course. Right. Lots of people, you could, you could get registered and then make it and then stick, oh I don't know

0:26:02 Thomas: Find your polling place, have to wait in line too long, you know, all this stuff, right? No, a bad metric, yep.

0:26:07 Andrew: That happens, exactly right, it's a terrible metric. And most importantly, like, why is it the metric? It's not the metric in the statute. It's not what Congress said is the metric. It''s just what the Supreme Court thought was its factual finding for why racism is over. And the second half of this hearing. And by the, I mean, I'm starting with this one because to me, this is a slam dunk, means that if you have the right votes on the Supreme Court, you could look back at Shelby County and say, you know what? This decision is of no force. We are going to disregard it because it is based upon a factual assertion that is contrary to reality, that says there is no discrimination. Uh, and it used a bunch of cherry-picked numbers and then immediately we saw that, um, had they used the right numbers, right, and in any event, after Shelby County, um, those states went nuts with suppress, it with efforts to suppress the vote, um, so therefore, uh, under section four of

0:26:16 Thomas: They just decided they just said so I

0:27:10 Andrew: Think that the factual predicate which was necessary to reach the conclusion in Shelby County versus Holder, that is, that no more racism in states where we require preclearance, not correct. And therefore, hold that Shelby County versus Holder is overruled. And you can do that while still maintaining the highest respect for all of the law that's cited in that decision. Right. You're not unraveling the tapestry. You're just getting rid of a terrible decision based on bad facts. I

0:27:42 Thomas: Hear you and I feel like you're gonna hate this idea, and but I don't want to undermine your point because I think this is a very worthwhile way to go about it as well, but also I'm kind of to the point where it's like, yeah, no, I just want to get liberal justices in there to undo all the BS that conservatives have done. I don't care that we, I'm done. I think me and a lot of people, maybe not Andrew Torrez, and that's okay, but me and all the people are kind of done pretending that the Supreme Court isn't just another political thingy, because it, it will be, like, if it isn't already, it is, by the way, but also going forward it will b more so, it's another political football, and I want control, I want possession of the football, uh, I want, want, I want possession of that football to do good things, to actually make things better. So is this kind of a small-c conservative way of trying to go about this when maybe people like me and other progressives think, like, why bother with that small-c conservatively? Okay.

0:28:37 Andrew: To, I want to mark this discussion bracketed off and have it in a larger context, um, but, but but yeah, like, look, what I'm saying is that you can write the ship and move in a correct direction, um, while maintaining respect for starry decisis, um, which, uh, to me I guess the distinction between our two positions is, I place a tremendous value on the view that stare decisis used to have as an institutional check against judicial activism. And so I think that that is an independent good to establish. If your view is, and I'm not, I don't mean your, Thomas Smith's, if, if one's view is we, you need to the outcomes and make life better for real people that the Supreme Court has sort of focused on making miserable over the past decade.

0:28:41 Thomas: Fair enough and

0:29:37 Andrew: And by the way, is a core function of the Supreme Court under footnote four of the Caroline Products decision. That's a respectable argument. In my view, like that's a great like like in the alternate universe. Right. Like that's the debate we would be having about Supreme Court justices. Right? Like and I would be on the like hidebound conservative side and you'd be like, come on, Andrew, I want to live in that universe yeah, we can. So so now I want to I want to walk really quickly through. Can you do the same thing with Citizens United?

And I want to say at the outset that this is a harder case. And and this is an argument that I've pieced together. And so I hope Senator Whitehouse is listening because I wasn't sold on the way it was presented in the committee. But but I think You to use an analogy, right, like a flounder ripple concurrence of argument here. Right. Something that that enables you to look to the fact finding in Citizens United and also say that it's based on incorrect premises. But here's how you have to get there. OK. Argument that everybody knows that lost was money isn't speech.

0:30:04 Thomas: Leave that for another time, I

0:30:53 Andrew: Right. That's a defensible argument. But this is a really good example of what, Andrew you Seidel has come on and kind of recited the truism of like bad facts make bad law. All. And Citizens United was a terrible case for defending that position. It's why it got up to the Supreme Court. It was an ideal vehicle for the other side, because what Citizens United did was they made a movie attacking Hillary Clinton and then they tried to air it and it ran afoul of electioneering rules. And look, when you try and argue that a movie isn't speech, you look kind of dumb, even if you're right. Right. And so that's why this was a Trojan horse for the right wing, because it all sorts of stuff that isn't a movie. Right, snuck in on the backs of that movie.

0:31:41 Andrew: Right. Bad facts make bad law. But was an argument that was raised and kind of quickly dispatched in favor of the money isn't speech argument. And it was something like this. It was like, all right, let's assume money or again, let'S use the language of the opinion, independent corporate expenditures. Let'S assume that it is speech. There are nevertheless a strong line of cases that say in certain limited context, your free speech rights are secondary to core governmental functions that can't operate without those restrictions. And what kind of core government functions are those? Well, there are a lot actually, me right? Give you three that you might not find persuasive. OK. The first is Jones versus North Carolina and its progeny, which are about the First Amendment rights of prisoners.

0:32:29 Andrew: Right. You can control what they can read, whether they can give interviews with the press, whether the Jones case was about whether they could unionize. Which, man, I love that. I love the thought that like that. So we got together to like organize the the prisoners in this North Carolina prison. And the Supreme Court said, yeah, no, you can ban all that. Those Right. Things are all free speech. But all of the cases say, right, right, right.

But in order to operate a jail, we got to, you know, can't make an omelet without taking away a few free speech rights. And too bad. What about cases involving in public Right. So Bethel School District, which upheld the school's right to to discipline a student who who gave lewd remarks at at at an invocation or Hazelwood Independent School District versus Kuhlmeier, which said that the school can exercise editorial control over the school newspaper. Paper. Again, Right. Core First Amendment rights. And the justification was, yeah, but, you know, you got to run the school. You got to maintain discipline. Sorry, you get students do not tinker versus Des Moines. Students do not shed all of their First Amendment rates at the schoolhouse gate. But, you Know, they lose some of them. Or what about cases involving the military?

And here, Parker versus Levy, this is a 1974 case involving an army captain who was serving stateside at an army hospital, you know, Fort something or other. And when he would on his patients, he would say, you know, I think it's wrong that we're in Vietnam. And if they tried to send me over there, I wouldn't go.

And, if you you were a black person in this country, I don't see how you could go to Vietnam, you know, when you don't have equal civil rights at home. And that person was court-martialed

0:34:13 Thomas: Thought you're gonna say that person was Muhammad Ali, and you know, gosh, didn't

0:34:15 Andrew: Yeah. And when I say court-martialed, I mean required to serve three years at hard labor, busting rocks. Yeah, that's what happens in the military, right? And so exercising core First Amendment speech. Now, I know what you're thinking, why none of those three are persuasive. They all seem to be kind of weird subcategories, kids have less rights in the military, you sort of know you have less less rights. Prisoners have less rights, but I got a Trump card for you. And my Trump card is civil service, people who work in the government. And it's case called Civil Service Commission versus the National Association of Letter Carriers from 1973.

0:34:52 Thomas: We just have a case from the listener question last, a week ago that was about, like, free speech rights of civil servants uh

0:34:59 Andrew: That's exactly right, because this case was about, is the Hatch Act constitutional, right? And the Hatch Act, the one that Kellyanne Conway violated all the time, right.

0:35:04 Thomas: I was gonna say given that I know that still exists, I'm guessing it was ruled as constitutional.

0:35:07 Andrew: Yeah. Yeah, and the Hach Act at the the time prohibited, if you were in the civil service, you could not take an active part in a political campaign. Since been modified some, but that's what the case stands for. So look, that's a core restriction on political speech, which is at the core of the First Amendment. And why is it constitutional? Let's read from the U.S. Supreme Court here, 1973. Quote, our judgment is that neither the First Amendment nor any other provision of the Constitution, invalidates a law barring this kind of partisan political conduct by federal employees.

Such decision on our part would no more than confirm the judgment of history, a judgment made by this country over the last century that it's in the best interest of the country, indeed essential, that federal service should depend upon meritorious performance rather than political service, and that political influence of federal employees on others and on the electoral process should be limited. It's super easy to just swap that out for voting. Right. So let's do that. Right, a judgment made by this country since its inception that it's in the best interest of the country. Indeed, essential that voting shall depend upon the views of the citizenry, one person, one vote, rather than on a few wealthy individuals and corporations. And that the political influence of those individuals and Corporations on the electoral process should I've literally just changed the nouns.

0:36:37 Andrew: Right. So that argument was made in Citizens United. All of those cases culminating with the Hatch Act case, the Civil Service Commission case. And I want to read you the entirety of how that argument was addressed in Citizens United. Quote, "The court has upheld a narrow class of speech restrictions that operate to the disadvantage of certain persons, but those rulings were based on an interest in allowing governmental entities to perform their functions. The corporate independent expenditures at issue in this case, however, would not interfere with governmental functions, so these cases are inapposite. These precedents stand only for the proposition that there are certain governmental functions that cannot operate without some restrictions on particular kinds of speech. By contrast, it is inherent in the nature of the political process that voters must be free to obtain information from diverse sources in order to determine how to cast their votes."

0:36:37 Thomas: So

0:37:28 Andrew: So, yeah, could instantly turn that on its head and say the linchpin of the Citizens United case turns on that factual determination that says these corporate independent expenditures would not interfere with governmental functions. We know that's not true. And if that's not true, then you have to take the argument that I just said seriously. You have to say, OK, so now, yeah, you're right. Corporations are people, my friend. They have the right to free speech. They are the right people, pretty important governmental function. Uh, we got to restrict those rights. We do it to prisoners. We do het to kids.

0:38:13 Andrew: We do it, uh, uh to civil servants. Uh we do it to people in the army. Um, and we're going to do it here in service of voting. Is it the tightest fit? It's not the tight as fit. Uh but it's pretty interesting argument. So there you you go.

0:38:27 Thomas: Refresh me, does this mean we can't fix this by law? Is that how bad Citizens United was, that like you couldn't just be like, so, so Citizens United essentially says you are not even allowed, government, you are not even aloud to say that, like, corporations aren't people my friend in this respect, like, you're not even a lot of pass an election law that's like, we just really, we have a strong governmental interest, not having corporations by elections, Citizens United says nope, no can do, bucko.

0:38:33 Andrew: Yes. Yes. Right.

0:38:59 Thomas: Sometimes forget how bad Citizens United Was I guess, like, I did. So that

0:39:01 Andrew: I can understand why that why that would be the case.

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0:41:29 Andrew: Citizens United challenged a federal law, it was 2 U.S.C. 441b, and what it said was you may not, uh, engage in independent expenditures, right, as a corporation, to fund speech that is an electioneering communication, defined as any broadcast, cable, or satellite communication that refers to a clearly identified candidate for federal office and is made within 30 days of a primary or general election, and is Publicly Distributed.

0:42:03 Thomas: Didn't even restrict it like 31 days out, wow.

0:42:06 Andrew: Yeah, all it was. So this was a the bipartisan campaign reform act of 2002. And you might recall all, 2002, not exactly crazy liberals in office, right? George W. Bush as president and a very narrow 51-49 Democratic Senate. So, you know, when it's called the bipartisan campaign reform act truly was modest reforms. And one of the things they said was, OK, look like things are getting idiotically expensive. Members of Congress have to spend all their time raising money. So here's what we'll do. We're going to have a safe harbor period of 30 days before the election, and we're going to prohibit dark money groups from coming in and flooding the airwaves right before the election. And then Citizens United created a quote documentary Hillary in in January of 2008 And eight wanted to then make it available versus, you know, through video on demand over cable within 30 days of the primary.

0:42:08 Thomas: Yeah. Huh. So

0:43:12 Andrew: And that ran afoul of the law. And they were like, come on, man. Like, yeah. No. Don't do this. And And that's what led to the Citizens United case I

0:43:22 Thomas: What would be the Thomas version of getting in there, like, if we get enough of and not Clarence Thomas, the Thoma Smith we get another Thomas Smith on the court? Do I have to not mess with any of this and just be like, "Hey, Citizens United really sucks, uh, be it resolved that, uh, no longer counts?" How is that? What would my reasoning have have to yeah, be?

0:43:28 Andrew: Think your your reasoning would tackle be, the larger issue would say, you know, akin to Brown v. Board of Education, right? Brown v Board of education said, yeah, said, "Look, separate is inherently unequal." And I think this would say, "We mistakenly concluded that corporate expenditures are a form of free speech. They are not. The history, language and and precedent to to date interpreting the Constitution evinces a strong protection for individual rights to speak and to be heard and consider."

0:43:47 Thomas: You guys done goofed. Oh, Could it could You fashion an argument that's like, in practice, this meant that corporate speech is so much more, uh, valuable just because corporations are so much much more wealthy than people that this effectively, uh, reduced the voices and the free speech rights, essentially, of the average citizen and

0:44:18 Andrew: Yeah.

0:44:36 Andrew: And and the way you would characterize that, as you would say, underlying the First Amendment's guarantee of freedom of expression to all individuals is a notion of fundamental equality, right? Grounded in the principle of the, you Lockean notion of an exchange of ideas and the idea that that no one person's speech would trump any other person's speech. That's not the case when applied to 21st century corporate speech. So, yeah, if you were that, that's how I would do it if I wanted to come in and Thomas Smith it.

0:45:08 Thomas: Not worry about trying to preserve the specific, um, jurisprudence, but either way, more than one way to do it. I don't, as long as it gets done, I don't care. Uh, all right, well, that's, um, you know, great breakdown by Sheldon Whitehouse, what, what a Senator.

0:45:22 Clip: What I hear when I'm being yelled at is people caring loudly at me.

0:45:27 Thomas: Right, well, let's, uh, address that question that we didn't we wanted to leave enough time for last episode. A great, great response about the "what if your client is guilty" question that we tackled a week ago. Here's the comment: "You guys didn't get this right. You forgot to discuss the duty of confidentiality and the burden of proof in a criminal trial. The thought of going into chambers to tell the judge you need to withdraw because you found out your client is guilty is the fastest way to get disbarred that I can think of." I

0:45:55 Andrew: And again, this is coming from a public defender, um, and I think, you know, coming from, uh, a sense of personal pride, uh, and I am 100% behind that, and, um, like I said, you you know, defenders are heroes.

0:46:07 Thomas: Just want to clarify that that wasn't I might have clumsily suggested that, but I wasn't literally saying you'd go tell the judge that you found out your client was guilty. You just say like, hey, I'm in a position where I have to, I can't represent this person because I, you now, whatever. Like you'd say some lawyer version of it.

0:46:15 Andrew: I you. Yeah, don't don't. Yeah. You don't, you don't need to fall on, you know, step on the rake or fall on the sword for this. That is, I went back and listened. That is not what we said. And I don't think it's even fair to say it's what we implied. Now, I I think it is our duty to communicate well. So let's be clear. The hypothetical, the question we were answering was your client signs up and says, hey, I'm innocent. And then in midstream, right, in the middle of trial says, oh, by the way, yeah, that innocent thing.

0:46:32 Thomas: Okay. Sure.

0:46:51 Andrew: I'm totally guilty.

0:46:51 Thomas: Tells you. For sure. Like that was the hypothetical. It was like you know they're guilty. It wasn't like you suspect they're guilt. Blah, blah, blah. They tell you they're guilty.

0:46:53 Andrew: Right. OK. Yep. Yep, yep, yep. Yep. One hundred percent. The very first thing we said was you stay that person's lawyer. Right. And I would say almost equally likely what goes along with it is you certainly do change your tactics. And we talked about that. If you're not doing that, you're you're not giving the client your best. You're not you're not zealously advocating on their behalf because they're going to say stupid and bad things that increase their likelihood of getting convicted. Right. I'm not a criminal lawyer, as this person will go on to note, but I've worked with some of the best. And that has always been their approach with guilty clients. Right. Is, you know, you you 100 percent can and should represent guilty clients? Um, the idea that you would represent them in the same way as a client you believe to be innocent, uh, is is not correct. And I am using innocent there. I Uh, know there's a there's a point later on, um, very pointedly because it it has to do with how you frame your particular questions.

0:47:05 Thomas: Yeah. There

0:47:52 Andrew: But you are absolutely right, to uh put the state to its burden to prove your client guilty. That's why the plea is not guilty, not innocent. Now, Right. What about the withdrawal that we talked about? Well, we talked about that as a very, very last resort. Right? We went through in painstaking detail that you can petition to withdraw only under certain specified conditions, right? Crime, fraud, and not taking your advice. And even explained how, you know, you can't really reveal attorney-client privilege in doing so. I do need to push back here a little bit to say, like, going in and withdrawing, that is a thing that happens, right? Case in point, Jerome Marcus was a Federalist Society dude, arch-conservative, arch right-winger, was hired by the Trump campaign to represent them in one of the Pennsylvania election cases, one of the Kraken cases, right?

0:48:40 Andrew: The day after the insurrection, we covered it on our show, he filed a motion to withdraw. We read it out on the show. I'm going to link it in the show notes. But it said, the undersigned, that is the lawyer, Jerome Marcus, respectfully requests leave of court to withdraw as counsel for plaintiff, that is Donald J. Trump for President, Inc., pursuant to the Pennsylvania Rule of Professional Conduct 1.16b3 and 4, which is the analog here, inasmuch as the client has used the lawyer's services to perpetrate a crime and the client insists upon taking action that the lawyer considers repugnant and with which the lawyer has a fundamental disagreement. So it does happen under precisely the circumscribed circumstances that we said before. My take with respect to that first one. And

0:49:25 Thomas: Right, so that was the first part of the email. It goes on. Is the client lying when he enters a not guilty plea at arraignment? Of course not, because there's no such thing as an innocent plea. Not guilty means prove it. Hmm.

0:49:37 Andrew: Total Agreement. True. Right, it means to put the state to the burden, right? That's why you plead not guilty. Right? Because guilty means guilty beyond a reasonable doubt, uh, that the state's been able to establish. So

0:49:38 Thomas: Yeah.

0:49:49 Thomas: All Right, overarching on all this is this is someone who's a public defender, and I totally, totally get their stake in this and wanting to be represented by us appropriately. I get it. But like, to the common citizen, when OJ Simpson says not guilty, he's lying. Like, that's right. I

0:50:08 Andrew: So I'm, I'm glad you you brought that up because I, I, I side with the listener here. Right. And as we talked about in in last episode, I would not say as a lawyer that OJ Simpson is lying when he pleads not guilty. Pleading not guilty does not mean I am innocent to the crime. It means I desire a trial and for the state to prove me guilty beyond a reasonable doubt, and I don't think you can do that. Yeah.

0:50:34 Thomas: So you could rephrase it that it's more like, let's dance, you're not, you're saying like, I didn't do it, you're seeing like, let us evaluate this essentially. Okay.

0:50:39 Andrew: Yeah. Yep. That's exactly right.

0:50:47 Thomas: I see the point, I get, get it. It goes on. I'm a public defender. I try cases where I know my client is guilty all the time. That's not the point. The point is the DA needs to prove it up. The burden is on them.

0:51:00 Andrew: Violent agreement.

0:51:02 Thomas: I can only break confidentiality in a few exceptional situations, all involving present or future criminality involving me as an instrumentality. Never for what the client tells me happened in the past. Never, not even the location of 10 dead dead bodies he has buried. What?

0:51:16 Andrew: Yeah, and not only do I agree with that, but like I've used this exact example in the past on the show. Right. Like I will tell my clients right in differentiating between the crime fraud exception and the scope of attorney client privilege. Like, if you tell me you were the second shooter on the grassy knoll, I am prohibited by law from telling anybody. Right. So I it

0:51:38 Thomas: Well, yeah, but this, I didn't know this. If, I didn't if they tell you where they buried 10 dead bodies, you can't tell anybody?

0:51:45 Andrew: It to the extent that that has an ongoing criminal element. I think it's not the greatest example. It's why I use the I prefer the grassy knoll. But I get what the author means. The author means, well, that's what I that's if the dividing line is, is it past criminality or future criminality? Right. So let's go back to, you know, what what our friend right wing lunatic Jerome Marcus said. The client has used my services to perpetrate a crime in the past. But where you break privilege is when the lawyer sits down with you all of the firm and is like, OK, well, here's where we hide the offshore accounts. Accounts. And, you know, here's when you go to the Caymans and, you know, dispose of that in the future. You have not only not the right to keep that but the obligation to disclose future criminality in the same way. You know, your client calls you up and says, hey, what's the best way to knock off a 7-Eleven? Right. Like, you know that not a not a lot, not an attorney client privilege conversation.

0:51:58 Thomas: Isn't that helping someone conceal a crime? Like, uh, but if you have

0:52:54 Andrew: Run

0:52:54 Thomas: A client that's on trial, I like, I need to know this, this is, this is disturbing. I feel like I'm maybe gonna disagree with, on a moral level. You got a client, that's on trial for the murder of 10 people, and they tell tell you, oh, here's where the 10 bodies are buried, and the police don't know that information. You, you're telling me you can't tell anybody that?

0:53:16 Andrew: Want to be clear, to the extent that continuing to hide those bodies makes you arguably an accessory after the fact, then that would violate the the crime fraud exception.

0:53:31 Thomas: Want to emphasize, like, this emailer is very adamant, they have caps, like, never, for what the client tell me, how in the past, never, not even a location of 10 dead bodies he's buried. I just want to, I disagree with, what if they're on trial, by the way, for nine murders and they say they have 10 dead bodies, does that change it? You're like, oh, okay, that's not, you're not on trial for that, so there's one extra dead body, so I can tell everybody, does that matter? Still?

0:53:53 Andrew: Don't, why do we bracket that discussion? Because again, you know, the, the what you're doing, and it's, and it's, uh, it's really smart, is you are pushing at, um, the fact that the black and white line as between, past crime and future crime, uh, that it's always obvious to see what falls on what side of the line, and what you're doing is you are highlighting things that are arguably past conduct, uh, but for which concealment, uh, would then extend. Yeah. That that into the future. And again, in the same way that, like, you your buddy shows up at your house with, you know, the bloody knife and clothes and says, hey, man, can you throw this away for me and wash my clothes? Maybe not do that. Right. Even though the murder occurred in the past, you've been brought into that murder as an accessory after the fact if you help somebody hide and dispose of relevant evidence.

So I, but I, I want to, I want to treat, I wantto treat the thequestion as, as if it had said, uh, just sharp dividing line between past and future. And, again, I think this illustrates that, and maybe that's their point, we didn't get into the discussion on past versus future. I, you know, I mean, every discussion has got these, they're good issues, but, you know, maybe it was not, not a

0:54:28 Thomas: A crime all

0:55:17 Andrew: Core part of I

0:55:17 Thomas: I'm saying if is if your job require, just, this is life advice, take life advice from a Thomas Smith, if your job requires not telling victims' families where their loved ones' bodies are buried, maybe don't do that job, just quit that job, don't do that job. Sorry, I don't care about all these stupid rules, this is nonsense. Of course you tell people where 10 dead bodies are buried. Come on.

0:55:33 Andrew: I so I I I really like that I don't want to I don't want come back to it

0:55:41 Thomas: I just resent the, like the attitude that we're the assholes in this situation. It's like, no, you come on, assholes. I, I, my client tells me 10 dead, where 10 body's are buried, I don't have to tell anybody and I can't tell anybody anything. It's like, really? That's the, that's the argument we're having? Okay. All right. Weird. Weird look.

0:55:59 Andrew: Anyway, so I, the letter goes on, I'm gonna, I'm to leave out, you know, some of the, uh, you, the, stay in your lane comment, and like, um, I think we try and, uh, give voice and, and steal bought many the sides of an argument as, as we can here. It is worth making sure that we're clear about your, absolute obligation to preserve attorney client, client communications, um, don't think we said otherwise, but never, but never hurts yeah and

0:56:25 Thomas: If there's one overarching thing to say, it's that we were taking kind of an extreme hypothetical question, right, and we were talking about it maybe in a specific light, and also my not being a lawyer probably added into like how this was being presented, and by omission, maybe it sounded like you were painting, or we were, you know, painting too broad a brush about defense attorneys, and that's totally fair, I think.

0:56:50 Andrew: Why why don't we leave it at that and sort of see where, uh, see where it goes, uh, but uh

0:56:54 Thomas: If your job requires you to not tell people dead bodies are buried, quit your damn job and

0:56:58 Andrew: To to the extent that anybody else, and I did, you know, this is the only one, but, but, to the extent that anybody else interpreted what I was saying is saying that you can't represent a guilty client, that I mean, that's one hundred and eighty degrees from my position. Of course you should. And everybody deserves representation, even guilty clients. The question was, what do you do when the situation changes? And so I would encourage you to go back, re-listen to last week's episode again, hopefully we've cleared that up.

0:57:29 Thomas: Yeah, and obviously I contributed a lot to that, because in my mind I'm thinking of Dershowitz justifying cashing a bunch of really high paychecks from you, very guilty, high profile defendants that he wants to be able to defend in an ethical way, whereas that's going to be the extreme minority of, you know, these cases in real, real life. Like, it's it's much more about, you defending people who might otherwise get railroaded by the system, and I totally grant that, sorry that I might have poisoned the well a little bit on this whole concept. Opening Arguments is brought to you by Lucy. Lucy Nicotine is a company founded by Caltech scientists and former smokers looking for a better and cleaner nicotine alternative. Finally, tobacco alternatives that don't suck. This was researched and developed for three years to be made for people, not patients. Lucy has created a nicotine gum with four milligrams of nicotine that comes in three flavors, wintergreen, cinnamon, and pomegranate. And Lucy also has a lozenge with four milligrams of nicotine in the cherry ice flavor. Each and every flavor actually tastes great, and it's convenient and discreet.

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0:59:34 Clip: And thank you, Let's go!

0:59:36 Thomas: Now it's time to thank our Hall of Famers, our all-time greats, over on patreon.com/law, and uh, I will start us off. Thank you to Sean McGovern, Sean Brockman, Lisa, see you at the next true crime podcast festival, Tell Morgan Gattam's son, Amy Hensley, January 20 baby, Matt Gates eats his chicken wings with ranch, Zach Boom, any chance of an Optimist Prime v Negatron debate soon? Question mark, I think we kind of do that frequently here on the show, Ray, Legal Eagle is so handsome, Thomas will officiate, Andrew, will you be my man of honor? Absolute awe, well now I don't know which is better, officiating or being a man of honor. No, I shouldn't have signed up for the officiate I feel like yours, you just get to hang out and get drunk, maybe make a speech, I gotta do work, never mind, I want to be the, the, the maid of honor, I want it to, I don't care, I want to be the something of honor, and then Tom we can get Tom to officiate

1:00:11 Andrew: They're they're both they're both great positions no oh that would mean you and I get to hold hands walking down the aisle, so how great would that be yeah I

1:00:30 Thomas: Yes okay I like this better plan and we get to get appropriately drunk and make like a way too emotional speech about the person. Anyway, California, I thought everyone's wondering, when will it end and will we end it appropriately, and like is this a train wreck, can we start applauding now?

Anyway, Californy, employment, work accident, or litigation questions, call or text attorney David Nitka, 310-776-5879, again, 310 776-58 79 Richard Scott, the Smiths, Chris Kaiser, Brian K, Thomas, you are a fop doodle and a mash gab, I bite my thumb at thee, praise be unto Hamilton, Tell Morgan guitar, actually never mind, remind Morgan that sparkle donkey, sparkle donkey is the world's best cube in the world fork teaser, my reaction to the census needs to be censored, time to add 160 seats to the house, yeah, that's probably a good idea this Das Rook listening for years, still can't come up with something clever, the Texas outages were caused by gerrymandering, rest in peace Brandon Bernard, we must abolish the death penalty, Adam Borchoff, justice for beer, the coterie driving success for direct consumer companies like Tonal, find us at thecoterie.io, budget botanist on Fiverr, plant of the week is, oh yes, our second plant of the week, Andrew

1:01:46 Thomas: Oh God hops, okay, it's hops, gotcha, someone to tell Larry Kudlow that all beer is plant-based, yeah, there you go, appropriate one, hops, uh yeah, becoming a patron to get five episodes a week and I finally caught up on months of backlog, new book, The Greatest Gift of All: Logical Path from Religion to Humanism, by Mark McLean, out now, one, oh here we go, shoot, one WWU sorcery, this spell can't wait, this made me realize that Andrew was supposed to go first, but I'm already so deep into reading the names that he's going to go second, but one white white blue sorcery, this spell can't be countered, destroy all creatures, that's Supreme Verdict, oh still going strong, I guess we're just in my wheelhouse of, of cards that I remember from Magic the Gathering, I don't say evasion, I say evasion, why aren't we calling the January 6th insurrection an act of treason, so happy to know that Babe is the one movie from my childhood that is still good, I like my perk streaks paired with at Casa Agria and at Emperors Brewery Beer.

1:01:43 Andrew: I

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1:03:49 Thomas: One Smart Cookie, Scent Cutters, Ledeaux Fabuleux, Jennifer Tchaikovsky, justice for George, now let's get to work, a string of unconstitutional laws, maybe if we just call that place Dakota Territory again they'll stop sending people to DC, Mike Hall, John Brown did nothing wrong, sorry Andrew, Uncle Frank is far too gone, say it with me, Amicus, the Books that Burn podcast reviewing fictional depictions of trauma since 2019, Mesley Fuzzley, Torsten Peel, the Satanic Temple, yes I'm not even a tortfeasor and I'm kicking your ass, crimer, no criming, Angry Macface, Penelope is glad Sydney got sanctioned for tips, Terpsichore, today I learned if a horse isn't from the champagne region of France it has to be called a sparkling donkey, we'll change this Patreon name when our newborn lets us sleep, yeah please thank Andrew Seidel for all the sweet, sweet lemon torts, Ace Associate Morgan Stringer makes my heart smile, beers in the beer fridge, torts and tort freezer, ritz of mandamus in the ritz cellar, cool glass of motion in limonade waiting for you in the porch, another week down, another week I forgot to change my Patreon name, oh plus that person has an opportunity to continue that great

1:04:35 Andrew: Good luck.

1:04:55 Andrew: Yeah.

1:04:55 Thomas: Uh string there Murray Regerson, congrats to my sister on her new position in Illinois, love GT, huh, simple country hyper chicken, crazy corgi, when the Vatican goes to court do they make pop opening arguments, too late to stop Lone Star State erecting gate of trans hate, yeah plug whatever you guys want here, I don't listen anyways, patron benefits rule, Brent Meddling, Seattle Pete, Jake Metacon 7, another Minneapolitan waiting for a live show in Minneapolis, and Guardians Ad Litem of the Galaxy, your turn, Andrew

1:04:56 Andrew: Good puns.

1:05:32 Andrew: And thank you to Christopher Brown, a fabulous single French lesbian waiting for her microchip, I need better 5G, Philly live show 2022, I'll bring the scotch and cheese steaks, who's bringing Gritty? Lawful Copter says, Andrew and Thomas, from the bottom of my heart, thank you for everything you guys do, that makes me tear up a little bit every time I read it, I won't change my name till Thomas pork something, well I mean, a man was sued after a snapping turtle attack, someone, they sued for tortoise interference, I, I may needs to drop by, uh, Patreonage, right, since I don't know what do with it, endorsed by the New York Times, yeah, good shout out for a skeptocrat there, I mean, you know, they could have picked us too, but that's all right, this is the way law school ends, not with a bang, but with a leave meeting button, Polly Hernandez, Robert M., Vini, Vini Prohacvice, one silent K in Knight, two silent Ks in Knack, three silent Ks in Republican.

1:06:26 Andrew: Mesa Verde live show, I'm glad you're open to, a you were wrong about crossover, now you just have to go be aggressively wrong about out things, to lure them, well we're working on it, Ian Hamilton, the reasons I suck at my job, Volume GI through GM, Jason Kopas, that's a big Twinkie, Emily Rainbow Spence, Hot Spears, owed to a small lump of filibuster I found in my armpit one summer morning, error, Rule 403 forbidden, this profile name is hilarious in the context of some other podcast, a series of houses each more glass than the last, Nate Drex, not that Chris Wallace, Darth Mandy Pants, Conrad Michaels has been dethroned by this, this next patron, givetomodestneeds.org, gifetomondestneed.org, Jennifer Kratch, reality is getting stranger by the day, there's Cobra Commander in the G.I.

1:07:12 Andrew: Joe movie, Lamb Double Feature with Transformers. Yeah, there's zero chance I could talk Thomas into that, but be so happy. Jeff Kalbach, dude, Mike Hudson, least fabulous patron. Even this next patron is more fabulous than me. And that is, don't take legal advice from a cat. SnowballPoliticsRadio.com. Fridays at 7 p.m. Eastern on Valley Free Radio. John Bilderbeck. My friend's cousin mixed Coke with Coprox and he died.

1:07:39 Andrew: Hard to say. Very funny. Stephen Boltzcate is hand of all. I call dibs on the monthly hamburger rations assigned to Thomas and Eli. Philip Kizer. Andrew the Arbitrary and Capricious. It's spring and time for me brew much beer. All hail beer. Circular logic is bad, mostly because it's not very good. Absiod, Alfred Wallace, Payton's Trumpet. Sorry for making you use that last one for so long. It was dumb anyway. Jonathan, Trump wanted four seasons, got Doubletree. Way to go, Thomas. Pork that streak like a karaoke legend. Buy Volvos, they're boxy, but good. Milo Meadsong pronounces it Hobishin. Join your labor union. Together we bargain, alone we beg. Egg ding dong ditching the devil's doorbell got kicked out of a flat earthers group for asking if COVID restrictions had pushed

1:07:38 Thomas: Yeah, and

1:08:25 Andrew: Anyone over the edge. Glad the blue line broke. I'm a cop and I applaud these verdicts. Well good, false, if Dnd minus wants to try the Alien RPG, I will run it. Anonymous Word Origins.org, your source for legal terms from 13th century Saxony. My witty names aren't original, my original names aren't witty. Nerd Gnostic. RIP, Notorious RBG. Our kitchen is your kitchen for an eventual live show in Seattle. Platinum dinner. The offer stands. We may take you up on that.

They said I could be anything, so I became two fabulous lesbians. Derek, I don't pray, but when I do, it's for evangelicals to get vaccinated. Big Easy Blasphemy. It's kind of nice having a competent federal government again, thanks to SummitShuffleboard.com. A string of unpronounceable characters. RhondaTheDork.com. HPL is my favorite racist science fiction author. PKD is a close second. Malika Chandler, Oh, That's fantastic. Fantastic. Adopt a homeless pet and oppose declawing and ear docking. Day Jury Belly. At at last, Baby Heather L. Matthew Vernon. Seattle is the best place for a, for the first post-pandemic live show. Everywhere else is a distant second. Jeremiah's Fancy Microwave Emporium. Ian and Ally. Danny Rosari. Eli Bosnick. David in Brooklyn. Tiga Home. Sam Donnell. Mitchell finally got back into my account. Well good. Fun fact, nine cases of shoe polish labeled as hair color were seized in the Giuliani raid. A great history of policing in the U.S. Listen to Behind the Bastards, June 16th, 2020, and endorse that. Natasha Crunchwrap wants you to support the Justice Policy Institute. Sam Buck, and of course, our all-time great, he who shall never be dethroned, Conrad Brad Michaels.

1:10:18 Andrew: Thank you all so much. And again, you want to be on this list? It is patreon.com/law and sign up at five bucks an episode. After a couple of months, you get on the magic list and you can be two fabulous lesbians. You can give a shout out to your favorite charity, to your business, or, you know, just say stuff that's hard for us to say.

1:10:41 Clip: Oh, no associate of this firm has ever failed the bar exam. No kidding.

1:10:48 Thomas: Then it's time for T3BE answer time. Let's find out, coin edition. You know, I just realized I'm gonna have to do a lot of tests on this pick to make sure it's a fair pick of destiny, because, what it, you know, if it's by, if it's biased pick of destiny, then I can't use it as my official coin. We'll See, um, But, but at least for, for now, uh, coin guessed one thing and I guessed the other, can't wait to see one.

1:11:03 Andrew: Yeah, yeah. All right, this was a con law question about a state law prohibiting any barbershop licensed by the state from displaying posters in support of any current candidate for public office. So, you know, dovetailed rather nicely with this episode, or displaying or distributing any campaign literature. And then the hypothetical says no other kinds of speech are prohibited, nor are other types of businesses subject to the same requirements. Requirements, uh, you did the thing with your second chance law firm that I love, which was, uh, you ruled out the yes answers and stuck with the no answers, um, ballsy, I love it, and correct, um, you, uh, eliminated C, yes, because it leaves political candidates free to communicate their campaign messages to voters by other means. And you correctly ascertained, among many reasons why that's a terrible answer, that when I own a barbershop and I put up a, you, Biden-Harris 2020, like, that's my freedom of expression too, right?

1:12:05 Andrew: And you excluded the yes, because the operation of a licensed barbership is a privilege and therefore subject to any reasonable restriction imposed by the state. Yes, up and until those restrictions interfere with core constitutional rights. And once they do, strict scrutiny applies, not rational basis. So D has more like legal buzzwords, but you also saw through that one. Good work. So the only question is A or B, It's right? Unconstitutional, A says, because it treats barbershops differently from From other commercial establishments, which is what the coin picked or B, because it imposes a restriction on the content or subject matter of speech in the absence of any evidence that such a restriction is necessary to serve a compelling state interest. And Thomas, you already know this because I said it in the, like, that's, that's the strict scrutiny formulation. You are correct. You, you won, coin zero.

1:12:38 Thomas: Which Is what the Coin thought, take

1:12:58 Andrew: Take that coin.

1:12:57 Thomas: That Coin Some Pick Of desi, you are go, go study pick, go hit the books, you got this one Wrong, what a dumb pick, I I Nailed this one, Thomas one, coin zero. Can't wait to see how my, my gloating is definitely going to come back to haunt me later on, when it's, you know, coin 280 and Thomas 17, but That's Okay And

1:13:05 Andrew: Yeah. Yeah, yeah. Yep. I think this is a an intuitively difficult question, but maybe I'm wrong.

1:13:26 Thomas: I Think this was a real, I think what's going on here is that this is actually an easy question, I finally got one that's pretty easy, and, uh, there you go, I Got It allowed Me To Get One right

1:13:33 Andrew: I think I think in reading through, I bet a lot of folks will will pick a no. All right. Well, we'll see.

1:13:37 Thomas: Nah I Mean, everybody, well, we'll, I'm just more pessimistic, I guess, it felt pretty easy to me, but, uh, I, I take nothing for granted nowadays, so, like like, before I know the answer, everything feels hard because this test is so perked and difficult, but in retrospect, it seems pretty straightforward. I don't know, I mean, there's some argument for A, I guess, but like, I don' I don't know what the coin was thinking.

1:13:58 Andrew: Well. Yeah. Yeah, it was wrong. I don't know what the coin was thinking either.

1:14:02 Thomas: Maybe we'll post an interview with the coin. All right. Well, I got it right.

1:14:07 Andrew: And

1:14:12 Clip: You are correct. The best kind of correct. He's not even a lawyer and he's kicking your ass.

1:14:23 Thomas: Yay. And the coin got it wrong. Never ending shame and misfortune for for the Pick of Destiny. Me, but why don't you tell us who is this week's big winner?

1:14:32 Andrew: Well, Thomas, the answers were split roughly 50-50 corresponding to your coin flip between A and B. There were a handful of C answers. I don't know that anybody picked D. And of the winning B answers, a lot of really good, really pithy, really great explanations. So I'm just going to go with the first one I saw, which was from William Patterson, who says, "I'm going to with my gut feeling that the restriction itself not being reasonable matters more than the unequal application of said restriction, so I'm saying B." Um, that's an exact right way to look at it, kind of minus the legalese, uh, which is sort of exactly in the spirit of T3BE. So congratulations, William, on being this week's winner, everybody, let's give them a follow, they are at W P ATTERSON at W Patterson on Twitter and congratulations William on being this week's winner.

1:15:29 Thomas: That's our show. Thanks so much for listening. We'll see you next time.

1:15:33 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.

1:16:07 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.