OA493: Is Fox News Guilty of Defamation? We Report, You Decide!

Transcript

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

0:01:17 Thomas: Hello and welcome to Opening Arguments, this is episode 493, I'm Thomas, that's Andrew, how you doing my friend?

0:01:23 Andrew: I am unabashedly fantastic this episode. I'm very, very excited about it. We get to make fun of Fox News. We have some great listener stories. Got a thing that I was wrong about, but like, let's not get to that. That's in the C segment. So, you know, if I filibuster long enough, nope.

0:01:27 Thomas: Me too, ah, yeah, I've seen a conflict of interest In the wildcard segment here, Andrew, we'll have to see how that works. No, I always love discussing how Fox is going to be feebly trying to fight back against billion dollar lawsuits, that is always a fun topic, so I cannot wait to wait to get to that. Well, nothing else, uh, nothing else to announce, so I guess we'd better get to our show.

0:02:03 Clip: What I hear when I'm being yelled at is people caring loudly at me.

0:02:08 Thomas: Up, you may have thought that Seagirt LLC, the, the, uh, odd name that was chosen for the NRA, like, offshoot thing that was gonna do a thing that Andrew will explain, I can't remember, seemed like a funny name, but we're like kind of Seagirt, weird, um, curious amount of listener her feedback on that, Seagirt LLC. Right, Andrew? What's going on?

0:02:28 Andrew: Yeah. So that was the entity. And by the way, like, look, you can call a holding company whatever you want. Right. So I expected it was just some kind of, you know, goofball internal name. That was the vehicle that the NRA wanted to use in connection with its bankruptcy in Texas to transfer the NRE out of New York and into Texas. Places. Seagirt literally means surrounded by the sea. It is a town in New Jersey and it is a marine terminal here in my hometown of Baltimore. So there are lots of, you know, East Coast, New York centered reasons why somebody might have been like, I drove through Seagirt. Yeah, whatever.

That's we'll call it Seagirt. We, however, received multiple delightful emails from Australia. And I, I have to share these with you, um, no idea if there's any connection to the NRA, but, but some of these are great. So Jules writes and says, "I was so surprised when Andrew said the name Seagirt LLC. Girt means surrounded or encircled by. I don't know this because I'm smart. Every Australian over the age of five knows what the word means because in 1970s we had a plebiscite to choose a new national anthem to replace God Save the Queen." Um, by the way, sidebar, uh, even as an atheist, like, I love God Save the King. I don't know why,

0:02:33 Thomas: Yeah. Hmm. Yeah.

0:03:45 Andrew: But like, uh, yeah, that's

0:03:45 Thomas: I mean, it's because ours sucks so much that most of them are better. Like, I love O'Canada as well, and I get to hear that a lot.

0:03:50 Andrew: True. Oh, Canada, oh man, I stand for oh Canada, yeah, right, for during hockey games, yeah, absolutely. So, um, delightfully for Australia, and, and I swear to you, I'm not making this up, our choices were Advance Australian Fair or Waltzing Matilda, which is about a thief who commits suicide when he gets caught and the cops who seem to think that a sheep's life is worth more than a person's. So, we got Advance Australia Fair.

0:03:53 Thomas: Yeah, yeah. It's fantastic.

0:04:09 Thomas: Waltzing Matilda? What the? It's like a Bob Dylan song or something to be here? That is a weird...

0:04:19 Andrew: Yeah, I know, it's a long-standing, like, sea shanty, right? You know, um, yeah,

0:04:24 Thomas: Now, does Advance Australia mean like the tectonic plates are literally going to move over to us like your charge or something?

0:04:30 Andrew: Well, it's short, so I'm going to read the lyrics to Advance Australia Fair.

0:04:36 Thomas: Sing it. No, I'm kidding.

0:04:38 Andrew: Sure, why not? I think this goes to the tune from Gilligan's Island. So, Australians all, let us rejoice, for we are young and free. We've golden soil and wealth for toil. Our home is girt by sea. There you go. "Our land abounds in nature's gifts of beauties rich and rare. In history's page, let every stage advance Australia Fair. In joyful then let us sing Advance Australia Fair." So delightful little, little ditty. Our home is girt by seat. Now, best explanation or proposed hypothesis for this came from listener Carla, who says, "Apologies in advance for sounding like an unhinged conspiracy theory nutbag," by

0:04:49 Thomas: Young.

0:05:23 Thomas: Always a

0:05:24 Andrew: The way, if you want to get us to read a message, uh, number one, send it via Patreon, and number two, include the sentence "apologies in advance for sounding like an unhinged conspiracy theory nutbag." Anyway, follow me down the rabbit hole on this. In March of 2019, Al Jazeera released an investigative journalism documentary called How to Sell a Massacre. Representatives from an Australian political party known as One Nation, parenthesis, which is exactly as hideous as it sounds. Yeah, I've looked it up. It's, that's not a boy band. That is a, like, far right identity, white nationalist party in Australia. Anyway, these idiots traveled to the U.S. and they met with high ranking members of the NRA. They sought political donations, i.e.,

0:05:24 Thomas: Good start.

0:06:09 Andrew: Cash from the NRA, and in exchange, once elected, would push for a relaxation of Australia's gun laws. Right. Australia being well known for, "Oh, look, we had one mass shooting, promptly banned assault rifles and large scale ammunition and haven't had that problem since." Right. So a rollback of those laws would be incredibly beneficial to the NRA. So, back to Carla. "Have the NRA set up a weird subsidiary company so that they can pull a Putin on Australian politics? Are they funneling cash out of the United States in order to file for bankruptcy, with the added benefit of financing their gun agenda here? I need answers." So, not.

0:06:45 Thomas: Yeah.

0:06:46 Andrew: It's it's probably the New Jersey terminal thing. But I loved all of that. And I could not resist the opportunity to stirringly read the Australian national anthem, which is Girt by sea. So there you go. Seagirt LLC.

0:07:04 Thomas: One if by Girt, see if by. Interesting. Interesting.

0:07:08 Andrew: I love our listeners. And these were great. These were great for other people wrote in. If if we did not read your Australian Seagirt email, I apologize. Yeah.

0:07:19 Clip: Down the law, down the law.

0:07:23 Thomas: And now it's time for our main story. Oh, my gosh. Can't wait. How is Fox defending itself against what seems to be a very reasonable lawsuit? The Dominion lawsuit.

0:07:35 Andrew: And notice this is one of the many lawsuits against Fox and many other parties. It's one of a handful of lawsuits filed by Dominion. This is the one filed on March 26th. It is filed in state court in Delaware. And the reason that it's filed in State Court in Delaware is because both Dominion Inc. and Fox News Network are corporations that are incorporated in the state of Delaware. In this case, Fox News Network LLC is a limited liability company of which the sole member is Fox News that. So that's Fox News network. LLC is wholly owned by Fox Corporation, which is a Delaware corporation.

0:08:23 Andrew: Right. So you've got parties on both sides of the equation are based in Delaware. So you can file this as a plaintiff in state court. Had they wanted to, they could also have filed in federal court. Right. And in fact, there are Dominion lawsuits filed in federal court, this is the principle that the plaintiff is master of her complaint. And so, you know, the fact that this is something that you could have said, I want to go to federal court look, state courts in Delaware are pretty good place to go. If you're a multibillion dollar corporation suing another multibillion dollar corporation, right? Delaware juries, and this does indeed demand a jury trial, are used to dealing with corporations issues, right, because it's Delaware. Okay. So this was the defamation lawsuit filed on March 26th, we've talked about at length on the show.

0:09:11 Andrew: Gravamen of the complaint as addressed to Fox is, is, you know that Rudy Giuliani and Sidney Powell are just lying about facts, And you've put them on the air anyway and endorsed what they're saying. And that is defamation against us, Dominion. And it includes things that are not statements that remotely could be characterized as opinions, such as Dominion was founded in Venezuela to help Hugo Chavez steal the election, right? Which is a factual claim that is false, which is a real good start when you're suing somebody for defamation. So late last week, Fox moved to dismiss the lawsuit. And we're going to talk about the first step in the process that got reported literally nowhere.

And The reason it got reported literally nowhere is because most people don't do the things that we do in order to track a news story, which is send me the actual copy of whatever pleading was filed in a particular case. Usually those are stored. We link those in the show notes when they're publicly available. A lot of people use Scribd or Box or Google servers, but good newspapers will link the underlying documents and make them public online. But sometimes they don't do that. And I've got to find out where this case is and pull up the case number and look at the docket and pull the relevant entries. And that happened in this case. Right. It took several days before anybody published the Fox's motion to dismiss.

0:09:20 Thomas: Sure. Huh.

0:10:48 Andrew: So while I was looking it up, that's how I knew that this was the Delaware case, you know, found the case number, looked through the docket. And a couple of weeks ago, a hearing was calendared and the parties briefed and argued what was decided on May 17th. So early last week. And that was what law, what state's law is going to apply to this dispute? OK. And and again, keep in mind, this is a Delaware state court.

0:11:19 Thomas: Yeah. So Delaware would be my bar exam. No nonsense answer.

0:11:22 Andrew: Yeah. You'd think that. But in fact, because although both of these corporations are in Delaware, nevertheless, they're headquartered elsewhere. Right? Dominion is headquartered.

0:11:36 Thomas: Right. But you Can still in state court, you can still apply other states, like I would have thought in federal court, as you said they could have done. Because of the diversity and all that, uh, jurisdiction, I that there, it makes sense to be like, okay, which state, then, if we're in federal court, but in state court, in a state Delaware, you can still be like roll

0:11:44 Andrew: Yep. In in in a state, you can ask that state.

0:11:56 Thomas: The wheel. Whose laws should we apply bankrupt

0:11:57 Andrew: Yeah. To apply in other states laws. And here the argument that Fox News was making was, yeah, we're all incorporated in Delaware because of corporate formalities. Uh, our headquarters are in New York, uh, our studios

0:12:01 Thomas: I thought it was in Mordor. Okay, point.

0:12:15 Andrew: Yeah. Our studios are in New York, all of the statements that you describe in your defamation case were made, uh, and broadcast out of our studios in New York. So the test that you use, there are a bunch of tests, but but the very first test that you use is right, where is the locus of the wrong, like where did the wrong occur? So the traffic accident super easy. Crazy.

0:12:38 Thomas: On the doll all.

0:12:39 Andrew: Yeah. Yeah, but no, with a traffic accident. Right. It's OK. Well, I hit you, Thomas, you know, on the street in Idaho. Idaho law applies. Right? It doesn't matter where I wind up suing you. Idaho Law applies. Is.

0:12:54 Thomas: Objection. I would never be in Idaho. I want this dismissed. Wait, I know. I'm the, am I the plaintiff? I don't remember.

0:12:59 Andrew: Yeah, you're the defendant now. Yeah, if you're in Idaho and I hit your car in Idaho, Idaho law is going to apply. And so that was the Delaware court's decision, May 17th, New York law applies to this dispute. Now, you may be thinking, this is a case about defamation. It is pretty much the same everywhere. So why does it matter? Here's why it matters. New York has a robust anti-SLAPP law. We've talked about That before, SLAPP are strategic lawsuits against public participation. And the way in which those SLAPP laws go into effect is they provide for expedited early dismissal of cases that are meant to silence public debate. And that is how Fox News News has characterized, but not well argued, this motion to dismiss. OK.

0:13:02 Thomas: Okay. Huh? Yeah. Yeah, yeah.

0:13:53 Thomas: I've got some questions,

0:13:54 Andrew: Go, go, Go ahead.

0:13:55 Thomas: But I don'T, I DON'T, we're, so,

0:13:56 Andrew: Go ahead with the questions now.

0:13:58 Thomas: Uh, procedural question. We've talked about how you get to be master of your own complaint. You get to choose the domain, but it sounds like you get, you can essentially choose the forum, but then you don't necessarily get your say in whatever law you want applied.

0:14:13 Andrew: That is correct. And it deals with the difference between what counts as a substantive law versus what counts as procedural law. And that would be a huge rabbit trail to go down. Maybe we don't do that in this episode. But yeah, you get you

0:14:14 Thomas: Hmm. Sure. Yeah, that's fine. But let's suffice to say, If I'm like, ha, I'm the plaintiff, I want to be in Delaware. It doesn't really mean that like I'm going to get Delaware law. I might get some other state's law, apparently.

0:14:37 Andrew: You might, but you get that other state applying their understanding of that state's law. And that makes a real difference. And let me give you an example of two cases that involved firms and non-competes. We've talked about this before. California, most robust in the nation in saying that a general covenant not to compete is not enforceable under California law. And so there were dueling lawsuits by various tech companies parallel tracked in both Delaware and California. Right.

0:14:44 Thomas: Okay. Okay. Yeah. Yeah. Okay.

0:15:15 Andrew: But both of which agreed that if California law applied, that the covenant not to compete would be invalid. Valid. But the Delaware court, right, recognizing the huge distinction was like, well, these are the and again, exact same fact patterns. Right. We're like, well, we're not persuaded, you know, even though the employees worked in California, the California law should apply here because if there's any difference in the law, then, you know. This draconian result will happen, which is the plaintiff's complaint will be dismissed. And so we think we're going to err on the side of saying that Delaware law applies. Right. And those kinds of concerns happen. So, you know, there is still a strategic value in terms of being able to choose your forum.

0:16:05 Andrew: And right? The difference between a federal jury in New York and a state jury in Delaware is probably significant to Dominion. Right. The difference between a Delaware court, you know, thinking maybe applying New York law at the outset. And now we know definitely applying New York law versus a New York court applying those laws. It Right. Is a little different. So there's still an advantage. It's a great question, though. Right. But it's not it's not quite as much, you know, that again, think about it like, you forum shopping on, you know, some of these abortion rights cases. Right in which, you it's like, all right, the same law. And again, you know, analogistically, like the same law is applying, you know, regardless of which court you go into.

0:16:46 Thomas: It'll make a difference whether Mississippi is interpreting that law versus, I don't know, Vermont. Okay. Gotcha. It's

0:16:50 Andrew: Yeah. Yeah, exactly. Right. Exactly. Right, so yeah, there we go. That's where we are procedurally. And now applies to how you respond to a complaint. And this is New York civil practice law section 3211, which contains a lot of your standard civil procedure stuff. It's like you can answer a complaint or you can move to dismiss and the, you know, standard. And then there's subsection G and this is the anti-SLAPP law. And it says, these are the standards that apply to motions to dismiss for failure to state cause of action involving public petition and participation, right? And it says motion to dismiss based on that subsection in which the moving party has demonstrated that the action is an action involving pubic participation or public petition. And by the way, this case clearly is, right, like it falls under that principle.

0:17:43 Andrew: Shall be granted, right. So your motion to dismiss as a plaintiff shall be granted unless the party responding to the motion demonstrates that the cause of action has a substantial basis in law or is supported for a substantial argument for an extension, modification, or reversal of the existing law, and the court shall grant preference in the hearing of such a motion. So I described that as a pretty robust SLAPP law. And it is, and you, I heard, verbally nodding along, changing the burden on a motion to dismiss is a really.

0:18:17 Thomas: A big deal. Yeah.

0:18:18 Andrew: Yeah, it's a huge deal. Usually. Right. If I say classic example, we use this, you know, every 10 episodes or so. I'm suing Thomas Smith because he trespassed onto my property and caused a whole lot of damage. And your response is, dude, I wasn't even in Maryland that day. And I say, yeah, but like I have footprints, you know, on my land. And like if it wasn't you, who would it be that your only response is, you yeah. I wasn't there. And there isn't like, you quick evidence you could put in and move for early summary judgment. Right. If you move to dismiss on the grounds that you weren't there, the court is very likely to deny that. Right? I'm going to say,

0:18:57 Thomas: Because Like They're gonna say, hey, the guy, uh, Andrew gets to prove it because has a day in court and say, I've got camera footage, says you were there or something.

0:18:58 Andrew: Yeah. Exactly. Right, exactly right, and so that standard, and it's a slightly higher standard in federal court, which, which we're not here, that is, uh, the Iqbal and Twombly standard that We've talked about Before, um, But

0:19:17 Thomas: Ah, yes. My favorite folk group from the 60s. Yes. The thing is, Twombly didn't write any of the songs. It's just it's all Iqbal. He did everything. Twombley is just a pretty face and a little bit of harmonizing.

0:19:19 Andrew: Yeah. Every Litigator's favorite, Uh, 60s Rock Twombly. Yeah. Had the sweet mustache, though. So that's that's, that's how that breaks down. Yeah. The question is, do you have a plausible cause of action? Right. Do you assert facts that if true would.

0:19:33 Thomas: Yeah, it's true.

0:19:43 Thomas: Mm hmm. So but what was the point of that hypothetical that if the burden were shifted, that maybe Maybe I would be able to get a dismissal there and just be like, yeah, I wasn't there. And then the burden would shift.

0:19:54 Andrew: Yeah. And I would have to show a substantial argument that you were right. If I just have the footprints, that's probably not a substantial argument. Again, we're stretching an analogy here, but but it's a really, really good point. Right. So, yeah, this says the motion shall be granted. Right. That is mandatory, non-discretionary, unless the plaintiff can come back and say, no, no. No, this is this is a super meritorious case.

0:19:58 Thomas: Right. Uh-huh.

0:20:22 Thomas: Yeah. Which is how it should. So I just want to take a second to say, you know, there's a lot of argument about like, oh, free speech and blah, blah, and in previous episodes and with, you know, for example, Carrie of Oh No Ross and Carrie, we I am vigorously in favor of anti-SLAPP laws, because often, more often, it's the moneyed interest bullying the little guy or when there isn't good anti-SLAPP legislation, being able just bully the person from being able make a claim at all. Whereas in this case, I this case I do support the anti-slap laws, but when you're talking about this case where you've got people making very, very tangible claims about a business and just like bankrupting that business, I feel like this is the kind of thing where that should meet that burden, right?

0:21:09 Andrew: I totally agree. I agree. I it is why I am why I went through all this, because I completely agree with you that SLAPP laws, anti-SLAPP laws.

0:21:19 Thomas: Yeah, I know I always mix It up. Anti-SLAPP laws is the good stuff, right?

0:21:20 Andrew: Yeah. Right. Yeah. It's like I get money to a cancer. I mean, anti cancer. Right. Um, it it

0:21:22 Thomas: Yeah. I don't even know why they have that cancer charity, pro cancer.

0:21:32 Andrew: Yeah. Is are socially speaking good things, and even if they that meant that Fox News got out of a billion dollar lawsuit, right, I'd be in favor of that. So, right, the question is, is this heightened standard going to help Fox? And, uh, I report, you decide. So, um, Fox splits its arguments into two sections here. Section one are arguments that the that the concept of the case is invalid. Right. They apply to all of the statements. And remember, when we went through this Dominion defamation lawsuit, their paragraph 179 is a 40 page paragraph counting the sub paragraphs. And it lists every instance in which Fox News had Rudy Giuliani or Sidney Powell or Mike Lindell or whomever on to repeat obvious nonsense, followed by factual nonsense.

0:22:26 Andrew: Right. So this is a robust and great defamation complaint. Usually a defamation lawsuit will say, you know, we'll name like two or three false things. And that's specific. Right? Like it great many cases, you know. Proceed to the jury on, you a handful of statements. And this has, you dozens of such to have 40 pages of such statements. So first part Fox makes three arguments. Okay. I'm going to refer you to those pages and I'm gonna tell you like that. This is I am using their words. These are their arguments. So their first argument is everything that Dominion has complained about is just Just us reporting newsworthy allegations made by the president. How can you tell us we can't report on what the president says? Right. President gets up and says the election was stolen by, you know, invisible Venezuelans who hacked. Sorry, we got to report that. Right.

0:23:12 Thomas: Yeah. Okay. Yeah.

0:23:23 Andrew: That's that's their first defense. Their second is, oh, or by the way, or in the alternative, we're also reporting on allegations made in litigation. Right. And, it's newsworthy. Right, Sidney Powell, lawyer for the president, sues Dominion, claiming that, you know, invisible Venezuelans hacked the, right? Like that, we get to report on that lawsuit. So the first one, the newsworthy allegations is pages 14 to 18. Go, go check it out yourself. The litigation argument is pages 19 to 25. And I hear you kind of not being convinced, Thomas, you're like, right, but that the problem is the endorsement of those allegations and continuing to put them on. Well, they've got you covered on that. Their third argument, pages 25 to 29 is. And also it is privileged as and I mean privilege, not attorney client privilege, but that it is protected by the First Amendment to have our hosts comment and opine on those allegations. And I want to tell you, taken separately, any one of the statements made in And this page is twenty five to twenty nine. Any one of those three statements, you will find a case that supports that. Right.

0:24:03 Thomas: Yeah. Yeah.

0:24:37 Andrew: So certainly like and let's let's use a really, really good example. MSNBC has on the family of Breonna Taylor to say we want justice for the murder of Breona Taylor. Taylor. MSNBC says, you alleged murder in describing the segment. But then you know that the host at the end.

0:24:57 Thomas: Okay. But I don't want to slow you down, but, like, I want to make this analogy work. Unless you're trying to tweak it, a certain point that would be like Brianna Taylor's family coming in and saying there was another gunman. That's like, they, and they named the private citizen who is not even a police officer that came in and shot Breonna Taylor point blank, wouldn't it? I mean, when you're trying to make the analogy to what Fox News has done here

0:25:18 Andrew: Yep. It's it. Agree that there are factual problems with the analogy. We're about to we're about To get there. But but I want to say that right. The the the baseline of these arguments is not an inherently insane argument It is the combination, the totality of those three things taken together, right? And and and here's what I mean by that, right. Um Baby, let's call the baby Thomas Smith.

0:25:27 Thomas: Okay. Sure. Yeah. Okay.

0:25:50 Andrew: Right, goes missing, right, there's a nationwide Amber alert, find Thomas Smith. Fox cannot say we 100% agree, right, under the operative standards, New New York Times versus Sullivan. Fox News cannot go, you know, breaking news alert, Thomas Smith was kidnapped by Hillary Clinton and then murdered and eaten. Right. Unless Hillary Clinton actually did did do those things. Assuming Right. She did not and that's obviously a statement of fact that is defamatory. It's a false statement of fact, and it's defamatory per se. You're accusing somebody of eating a baby. Their argument is we can, and the evidence is robust that they did, call up the president himself. Like the president was in daily contact with Sean Hannity. We know that we have White House logs or the president's lawyers. Right. And say, hey, can you file a lawsuit and or give a press conference that says Hillary Clinton killed, kidnapped and murdered Thomas Smith? Then we're going to have you on the air to summarize that.

0:25:55 Thomas: Yeah. Yeah. Yeah.

0:26:52 Andrew: And then we're going to Have Tucker Carlson stare into the camera and say just how right you are. Okay.

0:26:59 Thomas: It It, sure, sure seems like a get out of defamation free card, doesn't it? I mean, anything.

0:27:02 Andrew: Yeah, It, that's right. That would that would immunize, and if Dominion's lawyers are listening to the to this show, and you should be, if you're not writing your introductory paragraph one in opposition to the motion to dismiss with something like this, then you're you're screwing this up, guys. Give me call.

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0:29:49 Thomas: Trust me, this is a luxury supercar of office chairs. The X-Chair is on sale now for $100 off. Go to xchairoa.com now. That's the letter X, chair, the letters O and A, dot com, or call 1-844-4X-CHAIR. X-Chair has a 30-day guarantee of complete comfort, and you can finance your purchase for as little as $30 a month. Go to xchairoa.com now and use code X-Wheels for free X-Wheel Blade casters. XChairOA.com. One more time, XChairOA dot com. But I have another question, which is you're talking New York Times v. Sullivan. Is Dominion a celebrity? Is are they, you know, the only reason we know anything about Dominion is because of Fox News doing this very thing.

0:30:29 Andrew: Give me call is is because they they drag them into the air. Yeah, they probably are a limited purpose public figure for purposes of Election. And the fact that they were unwittingly dragged into the spotlight is an area of First Amendment jurisprudence that I think ought to be revisited. Right. Like it is.

0:30:44 Thomas: Yeah, yeah, yeah.

0:30:58 Thomas: We've kind of talked about that before.

0:30:58 Andrew: Yeah. But they are. So let's assume that they are a public figure. You weren't persuaded by the Hillary Clinton, Thomas Smith example. So let's go to the actual Dominion complaint and let's go to this paragraph 179 subparagraphs P and Q on page 122. This is a word-for-word transcript of Lou Dobbs' horrible show.

0:31:27 Andrew: Paragraph P begins with his garbage Twitter account in which he says, quote, The 2020 election is a cyber Pearl Harbor. The left wing establishment have aligned their forces to overthrow the U.S. government. OK, that's word for word what the tweet says. Right. That's from Lou Dobbs, not from.

0:31:43 Thomas: OK, well, But so far, that's so, so uh, dumb that I don't know how you would evaluate that as a factual No, I'm serious, like, that isn't it, is that specific enough to be defamatory because it's so out there, go ahead.

0:31:53 Andrew: So, no, no. Good question. That was paragraph 179P. 179Q is then several pages long and explains that that was a preview for having Sidney Powell on the show explaining the cyber Pearl Harbor and explaining cyber Pearl Harbor is foreign countries hacking our election to steal it and give the election to Joe Biden, even though Donald Trump won. Right. And then after Sidney Powell gives it's very clearly Sidney Powell reading the evidence so that that does seem to fall in the like newsworthy allegations. Right. But now, like, let's read them in context at the end of all of the Sidney Powell saying insane false stuff. We have Dobbs quote, let me make you an offer very straightforwardly. We will gladly put forward Your evidence that supports your claim that this was a cyber Pearl Harbor. We have tremendous evidence already, but of fraud in this election.

0:32:05 Thomas: Yeah,

0:32:54 Andrew: But I will be glad to put forward on this broadcast whatever evidence you have and we'll be glad to do it immediately. Sidney Powell. Awesome.

0:33:04 Andrew: That's it. That literally. So, you know, hard hitting interview. Dobbs will work overnight. We will we will take up whatever air were permitted beyond this broadcast. But we have to get to the bottom of this. End of quote. So that to me seems like, again, yeah, to replace this. I threw a dart at their complaint. I mean, I literally like just sort of scrolled down and picked. This was the first one I picked. And I was like, OK, I'm to take that and I'm gonna replace cyber Pearl Harbor with Hillary Clinton, you know, murdering Thomas Smith. And and look at what that is. Right. That is saying you filed a lawsuit. We're going to have you on the air. And then we're goingto say, by the way, come back with whatever other stuff you could dig up. And we'll put that on theair. And I'm going to endorse it as true. It is a cyber Pearl Harbor. The left wing have aligned their forces to overthrow the U.S. government. Right? This is not an abstract reporting.

0:33:19 Thomas: That's bad, document doesn't seem fair and balanced to me, yeah.

0:33:57 Andrew: No, it definitely isn't. Here is how. And again, there are 40 pages of these kinds of allegations. This is one of them. Obviously, we can't do all of them on the show. From pages 25 to 52, they purport Fox News purports to respond to each one of these allegations. And the answer is, by the way, the answer that Dominion is going to say is, yeah, fine. Fox interprets it's different way. Let us go to discovery and argue before a jury. And they're 100 percent going to win on that. Right. So here's what Fox says about the Dobbs statements. Quote, In context, Dobbs offered to report on additional evidence from lawyers litigating pending cases, asserted his opinion about the evidence already presented, and called for further investigation. This is all protected speech. These statements are accurate reports of Powell's newsworthy allegations, or at most, hyperbolic opinions with figurative and loose language. Language. Embedded in the tweet, oh, by the way, I didn't even mention this, is a document that, in full context, a reasonable viewer would not ascribe to Dobbs.

0:34:07 Thomas: Did

0:34:57 Andrew: I didn't tell you that Cyber Pearl Harbor, like, tweet also contained a link to Sidney Powell's nonsense about, like, what Cyber Pearl Harbour means. And obviously retweeting out the document, you know, you can say

0:35:09 Thomas: Pearl Harbor change an election or something? What is it? Yeah.

0:35:13 Andrew: They're just saying an attack on American soil now being an attack on American cyber soil

0:35:15 Thomas: Okay. Surprised they didn't use is 9/11, but

0:35:18 Andrew: Yeah. Right, no, the full context is, considered this document summarized Powell's allegation, uh, while using the phrase Cyber Pearl Harbor that Dobbs attributed to Powell on the telecast. In all events, the speeches forum, Twitter, confirms that reasonable, reasonable viewers would not conclude that they were seeing facts about Dominion. Question as to what reasonable viewers are seeing is a fact-specific question. It's not the kind of thing that you dispose of.

0:35:51 Thomas: When when FDR made his speech, December, whatever, what is it, 1941, you would he have been able to say, well, no reasonable radio listener would have thought that I meant actually that Japan attacked us on Pearl Harbor? Am I wrong?

0:35:54 Andrew: Yeah. Yeah. Yeah. No, you are 100 percent correct. And again, this is half their motion. It is 27 pages long. And the opposition brief is going to be like pages 25 to 52. Our response is, let's let a jury decide what reasonable viewers would think, quote, in context, end of quote, about these statements. Arguments, right? That's why we have trials. That's why we Have Finders of Fact. It's not your job as the judge to decide as a matter of law what they mean. And they're absolutely going to prevail on that. So the only question is the reporting stuff. And again, the reporting staff depends upon your assertion of what the reporting means in context. They use that phrase over and over again in their motion to dismiss. And And that's not the kind of argument you want to make when you're arguing something as a matter of law. So as proof of this, Fox, a multibillion dollar corporation ready, apparently, to fight as long as they can. Contrast this with what the slightly smaller outlet Newsmax decided to do.

0:36:29 Thomas: Yeah.

0:37:17 Andrew: And that is to issue a full and complete retraction of its claims about Dominion. Right. So this was in connection with a different lawsuit. This was actually the first one. It filed by Eric Coomer. He's the director of security for Dominion, it was filed in Colorado again Dominion based in Colorado, and he sued, everybody right he sued the Trump campaign, Sidney Powell, Rudy Giuliani, Gateway Pundit, Michelle Malkin, Eric Metaxas. What a scumbag that guy is.

0:37:23 Thomas: Yeah.

0:37:46 Thomas: This is a real murderer's row.

0:37:47 Andrew: Yeah. OAN and Newsmax. Right. And key to the allegation were the allegations being reported on OAN and on Newsmax that stemmed from a podcaster named Joseph Altman, who just made up a conference call with Antifa. You remember when we talked about this on the show and he was like, yeah, I I got added to the Antifa conference call which, you know, comes right after the Antifah barbecue, you know, um, yeah,

0:38:07 Thomas: Yeah. Yeah. On that, I'm actually, I'm a shareholder in Antifa LLC, so I keep an eye on those calls just to, I want to make sure my, you know, my money's well spent there. I want to, yeah,

0:38:23 Andrew: Yeah, um, in which, uh, he claimed to have heard someone identified as, quote, Eric from Dominion, and that Eric stated he would ensure that the election went to President-elect Biden, uh, yeah, there

0:38:32 Thomas: And then someone said, I'll get you next time, gadget, and then there's some other like cartoon villains that like what come on, yeah, I

0:38:42 Andrew: Was something about, like, stroking a cat that, yeah, but right, uh, so that's ridiculous, uh, but I will tell you Sydney Powell to this day repeats those claims about Eric Coomer. Okay, that led to two separate retractions by news, I shouldn't say led to that, the the circumstances, the first was actually before lawsuit was filed, on December 19th of 2020. This is super hard to find. Like, I had to go Googling around and searching on Newsmax's homepage, which, by the way, I'll provide the list, please don't click on it, please, please do not go there. Like, I really wanted, needed, like, a VPN and to wipe down the inside of my computer after.

0:39:25 Thomas: Just took my computer into the shower, you know, after no.

0:39:27 Andrew: Yeah, yeah. So here was their first statement. This was not enough to avoid being named in the lawsuit. They said, quote, seven things. One, we have no evidence Dominion uses Smartmatic software or vice versa. Two, no evidence has been offered that Dominion or Smartmatic use software or reprogram software that manipulated votes in the 2020 election. Three, Smartmatic has stated that its software was only used in the 2020 election in Los Angeles. It was not used in any battleground state contested by the Trump campaign. And Newsmax has no evidence to the contrary.

0:39:58 Thomas: Effing kidding, gosh.

0:39:59 Andrew: Yeah. Four, some of these, I didn't even know these were allegations because I'm not in crazy right-wing land. Dominion has stated its company has no ownership relationship with House Speaker Nancy Pelosi, Senator Dianne Feinstein, the Clinton family, Hugo Chavez, or the government of Venezuela.

0:40:00 Thomas: Oh.

0:40:16 Thomas: My God, I wish Dianne Feinstein were undertaking doing conspiracies with Venezuela. Yeah. She's over there being, you know, way too centrist and not fighting hard enough. I wish. Why, why pick them? Why not, you Know, uh. AOC or somebody that's kind of interesting.

0:40:18 Andrew: Right, uh yeah, yeah, Yeah. Who who knows that the next one, I did, know neither Dominion or Smartmatic has any relationship with George Soros, that's just stated as okay, we can see that, yeah,

0:40:39 Thomas: That's just assumed. Like there's always going to be a George Soros theory in all all these.

0:40:43 Andrew: Smartmatic is a U.S. company and not owned by the Venezuelan government, Hugo Chavez, or any foreign official or entity, and seven, Smartmatic states that it has no operations in Venezuela, while the company did election projects in Venezuela from 2004 to 2017, it states it was never founded by Hugo Chavez, nor did it have a corrupt relationship with him or the Venezuelan government. Okay.

0:41:05 Thomas: Yeah. Do we need a bullet point eight? Hugo Chavez isn't alive like anymore. That's

0:41:10 Andrew: That would be a good one, uh, so Newsmax decided that they were going to actually retract, right, so all of those are pretty damning admissions, but, like, your uncle Frank could see that and be like, uh, okay, we, uh, uh, been hassled by the man, so, yeah, they had to say XYZ.

0:41:12 Thomas: Yeah.

0:41:28 Thomas: Yeah, they had to be bullied into admitting Hugo Chávez isn't live anymore,

0:41:29 Andrew: Um, yeah, so, one, Newsmax would like to clarify its coverage of Dr. Coomer, and note that, while Newsmax initially covered claims by President Trump's lawyers, supporters, and others, that Dr. Coomer played a role in manipulating Dominion voting machines, Dominion voting software, and the final vote counts in the 2020 presidential election, Newsmax subsequently found no evidence that such allegations were true. Many of the states whose results were contested by the Trump campaign after after the November 2020 election have conducted extensive recounts and audits, and each of these states has certified the results as legal and final. To Newsmax has found no evidence that Dr. Coomer interfered with Dominion voting machines or voting software in any way, or that Dr. Coomer ever claimed to have done so. Number three, nor has Newsmax found any evidence that Mr.

0:42:19 Andrew: Coomer ever participated in any conversation with members of, quote, Antifa, nor that he was directly involved with any partisan political organization. And I'm going going to include that link in the show notes, and, uh, do, if you have a Newsmax watching uncle Frank, um, we, because they still put on these idiots, but this says, uh, yeah, we, we completely agree that there's no evidence of Dominion voting machines, Dominion voting software, the final vote counts, states have conducted extensive recounts, audits, and they've certified their results as legal and final, then finalizing on behalf of Newsmax, we'd like to apologize for any harm that our reporting has done, uh, any reporting of the allegations against Dr. Coomer may have caused Dr. Coomer and his family, for more please go to our website, blah, blah, blah, and for that Newsmax was dismissed out of the Coomer lawsuit.

0:43:08 Thomas: Still is a little frustrating. Like the damage is done, you know, they but you get to get out of jail free if you're like, hey, spinning a bunch of terrible lies, horrible, horrible lies, ruining a business, and then if you say, like, oh, well, we're sorry because we were totally full of crap, then case closed, you're free to go.

0:43:09 Andrew: Yeah That well, It's not. It is up to the plaintiff to decide whether to dismiss you out. But the the reason for doing so under the New York Times v. Sullivan standard is is as far like this is why you get demand letters and retractions, because the New York Times v. Sullivan standard says that you must have actual malice. That does not mean I hate you. It means that you either knew the thing you said to be false or you proceeded with reckless disregard for its truth or falsity. So notice what that leaves in. Just plain old normal disregard for truth or false city does not rise to the level of defamation under New York Times v. Sullivan.

So how do you demonstrate that somebody had actual knowledge that a statement was false? You tell them. You say, you're saying this thing. This is a false thing. You now know that this is a false thing. And at that point, they can do one of two things. They can either say, we don't think it's a false thing, and we're prepared to fight. Or they can retract and take down the statement and go, yep, you know what? The moment we learned that this was a false thing, we retracted and took it down. And that's what Newsmax's argument would be if they were not let out of the lawsuit.

0:43:30 Thomas: Okay, yeah, but but in another case, like, not this one now, but like, hypothetically, uh, let's say Newsmax did made some claims about my business, bankrupted my business, and Danny's like, we're, we're sorry, and I'm still bankrupt, would I be able to be like, yeah, but you still got to pay me money because you did this? Would that be a possibility?

0:45:10 Andrew: It it, would be a possibility. It would be a harder argument for you because what you would have to prove is that they either knew that their claims were false against you at the time that they said them, or they were made with reckless disregard for the truth. Right. And so that's where right. Ordinary defamation standards. You look to, like, the canons of reporting, and you're like, OK, you know, did they vet their sources? Right. Did they talk to confidential? Right? Like that, that's all the kind of thing that it's, it's relatively easy to litigate this. You could just be like, yeah, no, we said this thing, right, because everybody, because Sidney Powell said this thing, and, um, you know, we thought, did, did we think that it was definitely true? No, but we didn't think that it was definitely false, we just kind of didn't care a whole lot one way or the other, and that's not reckless disregard, right, that is, that

0:45:24 Thomas: Okay. Jeez. All

0:46:04 Andrew: Is disregard for the truth, um, and that is the low bar, right, we've talked about this, is like the bat boy bar, right, like, it is the low, low bar for reporting on public or newsworthy events. And again, we'd have a debate about, you know, should that be calibrated differently? You know, who should be subjected to that standard or not? But that's the, that's the standard that we have, and that's why, you know, that plays out in that way. Having Newsmax concede that this is a false claim 100 percent affects the existing litigation, and you right, will see, and I didn't read any of it because kind of made me throw up in my mouth a little bit. Right, Fox News has to straddle the line, so in their motion to dismiss.

0:46:49 Andrew: Right, they say things like, well, you know, lots of people were very, very interested, uh, in you, the integrity of the elections, and, you know, a lot of people are saying, uh, that, uh, you know, there are problems with security, concerns about the Dominion voting system, so, you know, we're just reporting on a on an issue of, of public concern, like, they still have to toe those lines, uh, and, you know, once you drill down into the specific defamatory statements, um, that becomes less and less tenable, uh, to say, like, oh, yeah, no, like, there's lots of public debate about whether a dead Venezuelan dictator was hacking the U.S. elections, so, but as a result of that, right, like Sidney Powell, uh, in her latest motion to dismiss, right, says Eric Coomer admitted under oath that all computers can be hacked with enough time and access, end of quote, right, like, you know, so, and obviously it's not hard to see how out of context that is, but, you they still have to maintain, on the one hand, you know, the idea that this is not a, a complete fabrication and fantasy, uh,

0:47:58 Thomas: So what about the fact that they said they were just covering a lot, just asking questions here, just covering the lawsuit? I don't know, know if we've covered that, uh, claim yeah, that defense I guess, yeah.

0:48:08 Andrew: Yeah yeah And, and, again, that it is covered by the First Amendment, that reporting on on a lawsuit is is the kind of activity that is protected by the First Amendment. The question is, taken together, does endorsing the claims in that lawsuit amount to a factual statement by a definitive speaker? And I think clearly here that it does. And there's a second component that I hope, right, is working its way into the law. And that is you have seen we've we have reported on Wisconsin Governor Tony Evers moving for attorney's fees against Sidney Powell in that lawsuit. Just a few days ago, the governor of Pennsylvania Pennsylvania and former Pennsylvania secretary of the Commonwealth, Kathy Buchvar, you recognize her name from all of the Pennsylvania litigation.

0:48:58 Andrew: Right. They moved for sanctions in another case in which they were involved. This one was in Colorado. This was this was not a Sidney Powell crackin lawsuit. This is brought by Kevin O'Rourke, who is a deranged conspiracy theorist. But it's the same argument. Right? It is. No, no, no. No, no, no. Like, and it is specifically against O'Rourke's lawyers that says, yeah, you came in here and you made us defend a lawsuit that you knew was nonsense. That was based on imaginary fake, you know, terpsichore and spider and, you know, these graphs without, you know, labels on the axes, and that was just either cobbled together insanity or things that you knew were false at the time you put them in there.

0:49:49 Andrew: And you should have to pay our legal bills for that. And I've talked to you about how courts are very, very reluctant to to impose sanctions. If the courts start imposing sanctions in cases like this and there are ample opportunities for them to do so, supported by very, very solid motions, I'll link the we don't have time to go through the Pennsylvania motion, but I'll make it in the show notes that that will serve as a deterrent from Fox News saying, hey, why don't you bring this nonsense lawsuit? Like turn around and go like, well, because maybe I don't want to be sued within an inch of my life you know, and not only have to pay judgments, but have to pay attorney's fees when we're done. That's a pretty powerful disincentive. So, you Know, if if you're looking for encouragement in a system that that has an awful lot that's broken about it right now, are those are some positive signs.

0:50:37 Thomas: I guess the final question would just be, how screwed are they, what do you, how do you see, I mean, how screwed is Fox, I guess Newsmax is fine now because of their retraction is there

0:50:46 Andrew: Yeah, Newsmax is out. Yep. But they're not out on everything, right? Right. Like they're out of the specific allegations that were brought by Eric Coomer in Colorado. So, you know, they they have not, as far as I can tell, been released from the Smartmatic lawsuit. So, there may still be a day of reckoning for Newsmax, too. We'll see how how all of these cases go. There are a ton of them that are out there and they're being litigated at a high level, you know, by and between multibillion dollar corporations. And so, you Know, that means Covington and Burlington coat factories getting involved and we'll be watching these for a long time. So

0:53:06 Clip: Andrew Torrez is wrong, wrong, wrong.

0:53:09 Thomas: Enough time for your quick correction?

0:53:10 Andrew: There there is. And I definitely owe this. So listener Robin wrote in on my kind of riffing on bankruptcy for areas where I did not communicate well the difference between Chapter seven and Chapter 11 in in bankruptcy. So let me do that now. Chapter seven is when you liquidate a company and distribute the assets. Chapter 11 is where you go in with the idea that you will provide a plan of reorganization for the company. The idea is you take the debt, you say, look, beneath this debt, which would otherwise be potentially crippling, is a viable operation. So let's reorganize the debt. Let's pay people in a manner that's fair, and then have the business come out and still sort of be a net positive to society.

0:53:12 Thomas: Oh.

0:54:04 Andrew: That's the idea anyway. By the way, that plan of reorganization has to be approved by representatives of all of the different classes of creditors. Right. So, you know, it's not it's Not a case where you could just go in and be like, oh, going to go in, and we're going going to get this plan. And, we don't care what the creditors think. You got to get their sign up.

Now, there's a ton of complexity around that that that I wouldn't do in this section, even if we weren't strapped for time, which we are. So but number one, the distinction between Chapter seven and Chapter 11, I elided over that distinction. Robin adds, and I did not go into this history.

This is something that I know this because this is how I got got involved, that the Johns Manville Corporation did survive Chapter 11 bankruptcy in the way that that chapter intends, I'm quoting from Robin's email, through a reorganization, While right? It's usually junior debtors who wipe out shareholders by being made the company's new shareholders, in this case, the new shareholder was the Johns-Manville Trust that we talked about for the benefit of the asbestos claimants. Those claimants were cashed out in 2001 when Berkshire Hathaway bought out the shares of the trust. The company survives to this day. So I knew that. That was my involvement. Here's the thing I did not know, Robin adds.

While that may seem like a technical distinction, it was an important way to preserve value for the claimants. The company was not, as Andrew implies, sitting on piles and piles of ill-gotten cash in 1982. According to its last public financial filing in 1981, it had about $36 million in cash and other liquid assets, but the book value of the company was $902 million. Dollars.

0:55:34 Thomas: Wow, yeah.

0:55:34 Andrew: In that situation, it made no sense to liquidate because the continuing firm is more likely to be valuable to claimants than the sum of its parts. That's the rationale for opting for Chapter 11 over Chapter 7. 100% makes total sense. I assume that that book value were things like real estate and other, yeah, diversified corporate holdings because they definitely They weren't doing business as amalgamated asbestos anymore.

0:55:42 Thomas: Buildings. Yeah. Piles. And piles of. Asbestos. Yeah. Yeah.

0:56:01 Andrew: Right. That's that's Like a jokey name. They were never called amalgamation asbestas. But, you that's essentially the role they had in the United States. And I know and Robin doesn't add this. The liabilities way exceeded even that book value of the nine hundred and two million. But nevertheless, like that is a correct description. John, John's Manville went into Chapter 11 bankruptcy. They, they were not liquidated. They were turned over to the Manville Trust. And then the Manvil Trust adjudicates asbestos claims, which pretty much means in priority to mesothelioma claims, because, again, the meso claims themselves exceeded, uh, the the total value of the business, and the non-meso claims would have, you know, exceeded it by many orders of magnitude, for reasons that we have alluded to, but we've never done a full, like, asbestos show, maybe we'll do that, we'll, we'll doing.

0:56:04 Thomas: Sure.

0:56:15 Thomas: We.

0:56:52 Thomas: Haven't.

0:56:52 Andrew: This best. As deep. Dive.

0:56:53 Thomas: Oh. I. Actually.

0:56:53 Andrew: Yeah.

0:56:53 Thomas: Thought we.

0:56:53 Andrew: Yeah.

0:56:53 Thomas: Had, okay, yeah.

0:56:54 Andrew: I've talked about my experience with this some, but but I don't know that we've done.

0:56:57 Thomas: We'll.

0:56:57 Andrew: Unlike.

0:56:57 Thomas: We'll.

0:56:58 Andrew: Yeah, 100.

0:56:58 Thomas: Pull up a nice warm. Asbestos blanket.

0:56:59 Andrew: Yeah. So.

0:57:00 Thomas: And cuddle in, do. A show.

0:57:03 Andrew: There. We. Go, really, really important clarifications, and and I, I love that, thank you for writing it, I.

0:57:08 Thomas: Well. I hope you've learned your lesson, Andrew.

0:57:10 Clip: And thank you, Let's go!

0:57:12 Thomas: And now it's time to thank our top patrons, our Hall of Famers, our all-time greats. We're the only show in the world that does this once a week. And we, you know, we love it. So we'll keep doing it. Andrew, start us off.

0:57:21 Andrew: And Thank you to Don't Take Medical Advice from a Joe Rogan Experience. Somebody tell Michael Cox that Pro Hacvice is Latin for you done effed up, Ron. Useless trivia. If you open your eyes in a pitch black room, the color you'll see is called Eigengrau. Wow, neat. John Brockman, Lisa, see you at the next True Crime Podcast Festival. Tell Morgan, get Tom's son. I have. January 20th, baby. Oh, no associate of this firm has ever delivered a toe by this afternoon with nail polish. All right. Zach Bloom. Thomas, I don't want to make you worried, but I think the T3BE coin may be rigged.

0:57:41 Thomas: Huh.

0:58:03 Andrew: How many credits in law school is a decade of sea lawyering worth? Legal Eagle is so handsome. Thomas and Andrew will be gentlemen's of honor. Tom will officiate and Cecil will be the DJ.

0:58:03 Thomas: Here we go.

0:58:14 Andrew: Oh, yeah, it's a plan. California employment work accident or litigation questions, call or text attorney David Nitka, 310-776-5879. Again, that's 310 776-58 79, the Smiths. Awesome patron name incoming. Thomas, you're a fop doodle and a nash gab, I bite my thumb at the, praise be unto Hamilton, my reaction to the census needs to be censored. Time to add 160 seats to the House. Yeah, double it. Rest in peace, Brandon Bernard. We must abolish the death penalty. Justice for beer. Sparkle Donkey Tequila wants the next live show in Seattle. We'll supply the tequila. Seriously. That is a strong argument. The Coterie, driving success for direct-to-consumer companies like Tonal. Find us at thecoterie.io.

0:58:15 Thomas: Love it.

0:59:01 Andrew: Budget Botanist on Fiverr. Plant of the week is Hillary's Sweet Lemon Mint, named for HRC in 1993. My second favorite mint, but Can be read. Yeah. That's a repeat. I.

0:59:09 Thomas: It's a repeat plant of the

0:59:11 Andrew: Know. I'm. A little disappointed.

0:59:11 Thomas: Week. I'm Budget Botanist. I want another plant.

0:59:12 Andrew: Yeah. Yeah. Listening for years, still can't come up with something clever. Well, we just yelled at Budget Botanist for not coming up with something this week. Uh, I think, I think, uh,

0:59:20 Thomas: Yeah. Look, different standards. We meet folks where they are.

0:59:24 Andrew: Adam Borachoff, Brian K, Eminent Lo Mein Mary the Great, new book, The Greatest Gift of All: A Logical Path from Religion to Humanism, by Mark McLean, out now. Becoming a patron to get at five episodes a week, and I've finally caught up on months of backlog, if you got it through in months. Yeah. Yeah, you're Listening At 2x. One mediocre straight guy slowly coming out as a fabulous lesbian, well, good for you. Two Artifact Creature Horror, zero four, all.

0:59:41 Thomas: Years of backlog. Yeah, oh.

0:59:54 Andrew: Right. You.

0:59:54 Thomas: Oh, Spellskite. Love this card. One of my favorites.

0:59:57 Andrew: Dot.

0:59:57 Thomas: It's Spell.

0:59:57 Andrew: Phr.

0:59:58 Thomas: Sky.

0:59:58 Andrew: Change.

0:59:58 Thomas: Is so. Great.

0:59:58 Andrew: The. Target or target spell or ability to this. All right, every guy I know looks like Matt, Matt Damon. Well, I want to meet you, sir or ma'am or whatever the case may be.

1:00:04 Thomas: Really. Yeah. And. Then. You'll become Matt.

1:00:11 Andrew: And then, yeah, I Want Somebody to Look Me in the Eyes and Tell Me I Look Like Matt Damon I Like My Pork Streaks Paired with At Casa Agria and At Emperor's Brewery Beer Josh Hawley's Dorm Room Poster Really Needs a Drink After Seeing the Cases SCOTUS Agreed to Hear lee sharp gd tree says minus zero motto artifact adds three banna of any single color to your mana pool and then is discarded oh

1:00:12 Thomas: Damon. Right. Because. Yeah. Oh.

1:00:39 Thomas: Wow, we got another person in on the Magic cards, it's not minus zero, this is, Black, uh, Lotus, so this is like the most famous, expensive, overpowered Magic card ever. If you had a mint Black Lotus, Andrew, it's Hundreds of thousands of dollars, it's Crazy, yeah.

1:00:47 Andrew: Uh-huh oh wow that's if you told me mint black lotus I would be thinking the supercar which is also worth hundreds of thousands of dollars so there we go thomas Thomas Kleberg. Getting real tired of Republicans using trans kids as a target for their tantrums. Pick on somebody your own size, you ghouls. Yeah, 100 percent. Buddy freaking Geierson. Is it weird that I refer to you all as my podcast friends? My wife thinks so. Idea for screenplay, Air Bud, man's best amicus. Don't take legal advice from a quarter. Two fabulous lesbians who keep it sassy, keep it classy, keep het gay. All right. Good luck to all studying and taking Making law school finals, a.k.a. not updating my Patreon for several weeks. Edgy Veggie Pop, Newhouse, Sassy Italy Tours. Figures those UFOs just want to see if Rudy gets indicted. Yes. Les Deux, Lesbien, Fabulo. One Smart Cookie Scent Cutters. Jennifer Tchaikovsky, Vaxxed and Relaxed over here, baby.

1:00:54 Thomas: Yeah. Although. Those.

1:01:47 Andrew: Yeah, I'm two weeks out from my second Pfizer, so I'm Vaxxxed and relaxed myself.

1:01:53 Thomas: Ready to mingle. Let's, let's get together, my friend.

1:01:54 Andrew: Yeah. I'm ready, yeah, absolutely. Does Jack Black know you have his Pick of Destiny? Strict screwing me, John Brown did nothing wrong, Mike Hall, Evie Huntington, Harvard alum, no hood, maybe if we just call that place Dakota territory again, they'll stop sending people to DC, yes. Nuzzly Fuzzly, Torsten Peel of the Satanic Temple, I'm not even a tortfeasor and I'm kicking your ass, Angry Mac Face, lost my job, stopped supporting, got a new job, supporting again, well, thank you, welcome back, and notice you keep your spot on the, on the roster, you know, when you come back, um, you know, yeah, if you're gonna, you gotta take care of you and yourself first, you know, and your family, uh, when you can, we'll be here and we're glad to have you back, Penelope, Penelopy is glad Sydney got sanctioned for terpsichore, Books That Burn podcast, reviewing fictional depictions of trauma since 2019, this is not the greatest patron name in the world, no, no, this is just a tribute.

1:02:47 Andrew: Crimer? No criming. Not that Chris Wallace. Not that Mike Hall. Not that Prince of Propitia. My name is Harvey. Okay. Beers in the beer fridge. Torts in the tort freezer. Ritz of Mim Davis at the Ritz cellar. Cool glass of motion in lemonade waiting for you on the porch. Murray Gregerson. Hey, Murray, you might want to contact the previous two. See how far we can get this like the wave. Brought dessert du jour, impeached tort, and subpoena coladas to this ex parte.

1:03:14 Thomas: Oh, subpoena. Coladas.

1:03:16 Andrew: Some. Pina.

1:03:16 Thomas: Is a great.

1:03:16 Andrew: Coladas.

1:03:17 Thomas: One. Theme.

1:03:17 Andrew: That. Is that, is a that.

1:03:17 Thomas: Drink.

1:03:18 Andrew: Is an a, an a themed, maybe an A minus, but it's, that's an A theme to drink. Another week down. Another week I forgot to change my patreon name, we'll change this patreon name when our newborn lets us sleep. Simple Country Hyper Chicken, I would pay money to hear Thomas's review of a Hamilton movie written and directed by Erin Sorkin, so would I. Ace Associate Morgan Stringer makes my heart smile, yeah, and my firm runs, so, so we're fans, Jake, so my future DJ name can be MC Donald, so long as I don't sell burgers, correct?

1:03:49 Thomas: Still. Love that one.

1:03:51 Andrew: Crazy Corgi, Seattle Pete, plug whatever you guys want here. I don't listen anyways. Patreon benefits rule. They do. Another Minneapolis, Minneapolis waiting for our live show in Minneapolis. Guardians add light up to the galaxy. That still makes me giggle. Christopher Brown, Philly live show 22, 2022. I'll bring the scotch cheese steaks. Who's bringing gritty? Uh, we're looking into that. A fabulous single French lesbian who got her first dose of the vaccine. Lawful copter says, "Andrew and Thomas, from the bottom of my heart, thank you for everything you guys do. A podcast that pairs a man racing a quarter and had a real-life lawyer." Yeah.

1:04:26 Thomas: Hey. I'm winning, I'm beating that quarter. Thank.

1:04:26 Andrew: Yeah. Medicon 7 OA, live show in Sydney, Australia, please. I will be vaccinated at the the earliest. Thanks, government. So, uh, we've we've talked about our conditions going back to Sydney, I would love That's a that'sa fabulous, fabulous place. All right, Thomas, take it away.

1:04:44 Thomas: Andrew sidles, butt is adjacent to the taint. Okay. Odin the Law Dog JD, Robert M. Lou, he said relationships require sacrifice, but now he's all where did you get this altar and she's not breathing. RB Trary and Cap Ricious, with puns that don't work when read aloud. Patron names are my favorite medium for yelling at clouds. The Speed Racer movie was excellent despite also being terrible. Dinosaur National Monument live show. Good news, everyone. I've developed a machine that lets me speak through a random person in the past. Becoming a patron for that sweet, sweet spreadsheet implementing equitable distribution. Polly Hernandez. Christ, seven years of college down the drain. Emily Rainbow Spence. Jason Copas. Hot Spears owed to a small lump of filibuster I found in my armpit one midsummer morning.

1:05:33 Thomas: No gods, no masters. Death to the coin. This profile name is hilarious in the context of some other podcast. A series of fake patrons, each more Conrad Michaels than the last. Nate Drex, Darth Mandy Pants. I like to make myself feel better by watching videos of judges expertly deal with sovereign citizens. Yeah, take burger restaurant naming advice from a podcast. There's also a brief trial of Cobra Commander in the GI Joe movie. Lamb double feature with Transformers. Give to mosney's.org. Give to modest needs.org. I'm not standing still. I am lying in wait. Wait, wait, wait. Jennifer Cratch. Not that Chris Wallace. MTG flavor text test. To fill your mind with knowledge, we must start by emptying it. Baron, master wizard. Oh, God, I have.

Is that like a Wheel of Fortune type card where you like discard your hand and then redraw? Blanking, but I'm guessing it's one of those kinds of cards. You can get back to me on laughing my ass off because thomas knows more about the law than a coin does Civilpoliticsradio.com, Fridays at 7 p.m. Eastern on Valley Free Radio. John Bilderbeck, my friend's cousin mixed coke with cop rocks and he died. Steven Balticate Sandoval, just tell the GOP that the insurrectionists had Hillary's emails about Benghazi. Philip Kizer, Andrea, the arbitrary and capricious. COVID showed me I'm the kind of guy that wants a little prick. Dude, there once was a bar exam query whose choices left me feeling weary. To put them in order, I turned to a quarter, but it wouldn't help me in theory. Wow, that's pretty good.

1:07:04 Andrew: That's good.

1:07:05 Thomas: Nicely done. Absion, pain strumpet. Sorry for making you use that last one for so long. It was dumb anyway. Albert Wallace, Jonathan Lord, Kin Bote. Way to go, Thomas. Pork that streak like a karaoke legend. RIP to my friend Harry Mosley, survived cancer twice only to be shot by some punk. Oh, man. Real bummer. Jeez. Bring us down. But yeah, R.I.P. Milo Meadsong, pronounces it Hobetian. Join your labor union. Together we bargain. Alone we beg. All skybreakers are bastards. Eat the light eyes. Harsh lives matter. I got my Pfizer double tap. Go get vaccinated if you haven't yet. Because of you, Puzzle in a Thunderstorm and Cognizant, I left the LDS church and the Republican Party. Congratulations on that. I dreamed Andrew came to C2E2 and spent the whole con doing panel talks on Transformers law. Time to stop sleeping with earbuds in. Andrew would do that.

1:08:01 Thomas: False anonymous word origins.org, your source for word and phrase origins. My witty names aren't original, my original names aren't witty. Nerd gnostic, R.I.P. notorious RBG. Our kitchen is your kitchen for an eventual Seattle live show, Platinum Dinner. The offer stands. 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. SummitShuffleboard.com. A string of unpronounceable characters. Roundofthedork.com, if Opening Arguments is joining the MSW network, does that make Allison Andrews boss? Uh, no. No. Malika Chandler, tricycler manslaughter, soggy pants, the leftist textualist says lethal injection fits even Scalia's definition of cruel and unusual since it was invented after 1789.

1:08:56 Thomas: Okay. Sakashite Fukasumi, Adam Costa, adopt a homeless pet and opposed to clawing an ear docking. Jay Aldenwalt, Dejury, belly at Pat Cheese at Last Baby, Heather L., Matthew Vernon, and Jeremiah's fancy microwave emporium. Ian and Ally, he's not even a coin, he's kicking your ass. Danny Rosari, Eli Bosnick, David and Brooklyn, do you have a shovel in your back pocket because I am digging that butt. That the one and only Tagomes, Sam Donnell, Mitchell error on air on Erin. True story, Trumpers think the Arizona ballots were fed to chickens and the chickens were were incinerated. Oh my God. I agree with that 100%. Natasha Crunchwrap wants you to support the Justice Policy Institute, Sam Buck, and Conrad Michaels.

1:09:42 Andrew: See.

1:09:43 Thomas: Oh, thank you so much, Hall of Famers.

1:09:45 Clip: Oh, no associate of this firm has ever failed the bar exam. No kidding.

1:09:51 Thomas: And now it's time for T3BE, coin edition. Let's see if this one was as easy as it seemed or if I got hoodwinked. We'll find out.

1:10:00 Andrew: Yeah. So this was an airline hijacking commercial flight. I love all of the extraneous details. This is very much like a real bar exam question. Right. Right. Sentence one. An attempt was made to hijack a commercial airliner while it was in flight from San Francisco to New Orleans. And you're like, OK, what do I know about criminal hijacking? Nothing. All right. Good. Next. Within minutes, the hijacker was seized and the plane proceeded to its destination. OK, well, then not that.

1:10:26 Andrew: Upon the plane's arrival, television Stations began to broadcast pictures of the passengers as they got off. And one of them was a businessman playing hooky a la Ferris Bueller. He sued because he was pictured on the news when he was supposed to have been in Chicago and he was in New Orleans for Mardi Gras instead. If the businessman asserts claim against television stations for broadcasting his picture as he disembarked, is he likely to prevail? Veil You uh went with the uh straightforward answer, you're like, no, scene shown on television was newsworthy. Um, other answers were, was it against his wishes, you ruled that one out, that's uh good, you you do have a right to control publicity, uh um, but it's not an absolute right, uh and you eliminated C, no, because the humiliation and embarrassment did not result physical harm to the businessman, that would be an incredibly strange doctrine of free speech.

1:10:25 Thomas: Yeah. Where do you bury the survivors Uh, yeah.

1:11:16 Andrew: Like I I have to get close enough to actually rupture your eardrums, like I, you know, yeah. That's That Is Goofball Beyond beyond belief, uh, you picked as your second choice answer, yes, because publication of the television pictures caused the businessman man pecuniary loss, that is actually the second best answer, um.

1:11:21 Thomas: There's Something Yeah, that's A weird Thing Yeah.

1:11:35 Andrew: Yeah.

1:11:34 Thomas: That's What I thought Ah.

1:11:36 Andrew: But the best answer is the obvious answer, no, yeah. There's A and It ties in perfectly with this week's episode, right? Like the the news, uh, has a a reporting privilege under the First Amendment to talk about things that are newsworthy, uh, you're out in public, you have no expectation of privacy, uh, when you're on an airplane.

1:11:39 Thomas: Thank God Right I Could Have added that Yeah, I should have added that, actually.

1:11:55 Andrew: Um, Yeah. So Yeah.

1:11:58 Thomas: Be one thing if it was like news camera in your bedroom for some reason. You know, that'd be a different story, probably. Wow.

1:12:01 Andrew: So Uh, so there you go, uh, straightforward answer was in fact the correct One.

1:12:08 Thomas: I By, you know, this 20, these 20 questions we're doing, this is a 20 question little practice test, you got not Porked, not pork. I haven't done well, I think it's been a little harder than the first 200 questions, I think it's a little bit more challenging, but I will say, not pork, you know, it's fair. I think, I I think part of the reason I've done done worse is that I was so in my head after that 10 question porking that I got on that one that was definitely porked. But yeah, no, it's fair. Fair play. The coin, not very good at answering questions.

1:12:15 Andrew: Yeah.

1:12:37 Andrew: The coin is now one for four, you are back up over 52, you're on a three-question win streak. So, you know, things are going well.

1:12:41 Thomas: I think so. For the whole test. Yeah. Yeah, all right. Well, let's find out who this week's big winner is. And wouldn't you know it, it falls to me again to choose this week's winner. I'm gonna use the coin, and so I'm going to put all 8 billion human names in a database and flip a coin. No, that's not a- you know what, that is not a good idea. Why don't I just check Twitter and check who retweeted the episode, which you need to do, and included the hashtag, T3BE. And let's pick SpinoBreaker with a great answer. I think Spino Breaker has won before, I recognize that name. Name. At SpinoBreaker says, D, airports are public spaces, and as such, you have no right to privacy, I think. Oh, and I don't, I'm not Andrew, so I can't tell you if that's the important point. I actually don't think it's quite the important point, but maybe it was.

1:12:48 Andrew: Yeah, yeah.

1:13:35 Thomas: But they also say, oh, and follow me if you like Lego dinosaur fossil builds. And I love Legos. I just put together that NES one that is unbelievably cool. I cannot believe how cool it is. It and I'm into Legos so that's mainly why I chose Spino Breaker but either way they got the answer right which you had to do and you had retweet and do all the things so congratulations SpinoBreaker and follow SpinoFreaker for Lego dinosaur fossil builds can't wait to check them out And that's our show. We love you so mucho. That was a ton of fun. And looking forward to Rapid Response Friday. Thanks for listening.

1:14:09 Andrew: You then

1:14:10 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.

1:14:44 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.