OA494: Florida's Pointless, Unconstitutional Social Media Law

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 494. I don't know what. Oh, how are you doing, Andrew?

0:01:23 Andrew: I am fantastic, Thomas. How are you?

0:01:25 Thomas: I'm good. I'm Now excited for today's episode. Lots of stuff to talk about. First and foremost, a grand jury has been in paneled. How excited should we be?

0:01:35 Andrew: We should be very, very excited about this. So this is the state investigation of Donald Trump in Manhattan, in New York. This is the investigation that was spearheaded by Cy Vance, right. One of the two cases that went all the way to the Supreme Court subpoenaing tax records, which have been turned over to Cy Vance's office. And now the investigation, which initially was not specifically include in notifying Donald Trump that he was a person of interest or or potentially a target of that investigation, has expanded to consider, right, whether to bring criminal charges against Donald Trump and the Trump Organization. That is a really, really huge development, um, as as you might imagine, right, um,

0:02:33 Thomas: Listener Thomas S. Nagatron asks, how will we be disappointed by this? The outcome of this?

0:02:33 Andrew: Yeah, Yeah, So, Look, um, you'll be disappointed if Donald Trump is not indicted in New York, right, it didn't

0:02:44 Thomas: Yeah, but I guess. OK, I guess the question is, like, what's the likelihood in your mind? I mean, is this the kind of thing that grand juries get impaneled all the time for you and I and everybody and we don't know it and there's no charges? Or is it like usually when they're impanel, there's some charges coming out or indictments?

0:02:59 Andrew: No, yeah, I, right, right, remember the, that right, the the the good old long-standing, right, a grand jury will indict a ham sandwich here's unless that ham sandwich is is a is a police officer, that is correct

0:03:06 Thomas: Yeah. Yes. Unless that ham sandwich has a badge. Yes. Sandwich killed two unarmed men, by the way. But another another episode.

0:03:14 Andrew: God, Yeah. Um, apply those state, right, like, like, I would expect that the standards before a grand jury in terms of whether to indict, you know, ex-president one, right, like are going to be implicitly higher than the standards for, you know, Thomas Smith or Andrew Torres. So but but they shouldn't be. They should not be.

0:03:38 Thomas: Well, why? I mean shouldn't. Okay. No, who's a grand jury? Like for real, I'm like serious question. I know we got a lot of stuff. We got Seegert to talk about. We've got, uh, Florida's anti-de-platforming law. We Got lots of stuff, but I want to know I get the idea that like, this Is a sensitive situation or whatever. This is a politically sensitive situation. But when you are a grand jury, you're just a person, right? Didn't you just get called for grand jury duty or do you have to be a grand wizard or something? No, that was a bad. You have to be a grandpa or something. How do you get grand jury duty? Is it normal, jury?

0:04:10 Andrew: Yeah, it's normal jury service. You're just a person here. It's it's larger than a sitting Pettit jury, which is the opposite of a grand jury or I should say the other kind of jury. Right.

0:04:26 Thomas: Is that like petite, like petite?

0:04:28 Andrew: Yeah. Yeah, it's it's petit. Petit jury will sit at trial. A grand jury here, typically 21 members. And under New York law, the grand jury can only proceed with a quorum of 16 members. Right. And that's because grand jury is sitting for a much longer time. Right? Right. So people will, you drop in and out. They will have, you other kinds of service. And because.

0:04:49 Thomas: Yeah. I got other ex-presidents I'm looking at. I got things to do.

0:04:56 Andrew: And the biggest thing that the grand jury will now do is, within the scope of its direction, it can issue subpoenas where it believes that such such subpoenas are likely to reveal the existence of material evidence to, in connection with their investigation, in connection with crimes. Right. So, the reason specifically to impanel one here is if, in Vance's ongoing investigation, which included the Trump Organization but did not specifically identify Donald Trump as a target, all of a sudden you find evidence very relevant to another crime. Right. And that's why you say, OK, well, so it's not clear whether indicting Donald Trump was within the mandate of the first grand jury.

0:05:49 Andrew: So, you know, we're going to do this by the books. We're going to convene a second one. We'RE GOING TO SPECIFICALLY TELL DONALD TRUMP THAT HE IS A TARGET AND WE'RE GOIN TO COMPILE THAT EVIDENCE IN SECRET. YOU DO NOT, YOU KNOW, AS WE HAVE LONG STATED, GRAND JURIES MEET IN SECRET, THOSE PROCEEDINGS ARE NOT RELEASED TO THE PRESS. THERE ARE SPECífic STATUTORY protections in New York. It is Section 190.25 of the New York criminal procedure law that protect the secrecy of grand juries. Right. So these people cannot be harassed by, you know, Trumpers.

0:06:28 Thomas: I guess the point I was making though, is that when you talk about the standards, I feel like there's just people in this grand jury making this determination. Nation? Or are you saying, is there still some level of discretion after the results of the grand jury, like among the prosecutor or whatever?

0:06:44 Andrew: Both halves of that are correct. Right? The grand jury is just people. But the grand jury is supervised by the district attorney and the court, right? Here it's Manhattan Superior Court and District Attorney Cy Vance, who instructed the grand jury with respect to the law, right. And so, you what I was responding to is, as a practical matter, right, I think the interplay of those two things, right, of the grand jurors going, Gosh, we're not just, you know, dragging, you know, Thomas Smith off there. This is this is a former president. And the legal instructions that are provided to it by the court will probably err on the you know on behalf of, you know, protecting Trump.

0:07:30 Andrew: But look, this is the step that that we've sort of been waiting for. And I will tell you, don't want to use the the word delay, right? Because people have asked, you know, have asked us in our Q&As, they've asked over at Cleanup on Aisle 45, you now, sort of beginning January 21, like, all right, well, when's Trump going to get indicted, right, like and, you, know, the wheels of justice churn slowly to the extent that four months later seems kind of slow, I would agree, right that with with some level of frustration, but also some level of courts move slowly and the tremendous backlog right now in the judicial system created by COVID, which could be its own episode.

But to the extent that you want another explanation, right, to the extend that there is the New York office proceeding deliberately as opposed to sort of with all due speed, It might have been out of an abundance of caution to the ongoing investigation in Atlanta concerning President One, where, you know, again, if I'm Cy Vance, I would say, as I have said on the show, to me, the criminal charges in Atlanta are a knockdown cinch. Right. It is absolutely clear, as we've talked about on the show, that that the president violated Georgia election law. You know, so there may have been a little bit of like, OK, well, you Know, we're not going to we're not going race to get out in front of Georgia on financial crimes.

And by the way, I should bracket all of this. Everything that we can tell. And again, these are news reports. We do not have the underlying instructions because of the aforementioned secrecy. Everything we can tell, everything we know about Cy Vance's investigation is that these are financial crimes, potential financial crimes.

0:07:52 Thomas: Yeah.

0:08:37 Thomas: I

0:09:27 Andrew: Particularly related to and and inspired by the excellent reporting done by The New York Times as to, you Donald Trump's selective valuation of his properties taken over 20 plus years.

0:09:41 Thomas: Was going to say, I can't wait For the 12 Angry Men equivalent in this grand jury. Like Henry Fonda is like, you know, I went out and I created a fake charity and stole millions of dollars, like him buying his own knife and all that. Yeah.

0:09:53 Andrew: Yeah, exactly. This would be a hard one to 12 angry men. But but yeah. So, look, like of us would like to see a bad man punished for a lifetime of evil. And I am celebrating that this is one step in that process. I could also understand as a district attorney that if you were thinking about from a larger, you know, small S, small J social justice perspective, like, oh, hey, why don't we let the state of Georgia arrest him for, you know, trying to overthrow democracy as we know it, that seems sort of more proximate to, and by the way, you know, he's also committed tax fraud. But, you know, yeah, if you're not going to indict him by May, by June, okay, well, then guess what? We're going to we're going to go

0:09:57 Thomas: Wait,

0:10:40 Andrew: Ahead.

0:10:40 Thomas: I thought nothing was happening in Georgia. Is that - are you - is that what you're saying, or are you saying they were waiting for that and nothing's happening? Oh,

0:10:45 Andrew: Yeah, that's that's what I'm saying is that is that there were there were reports there has been no movement, but there were reports back in February that a grand jury had been impaneled in Atlanta in connection with election fraud. But yeah, but but nothing. But it's gone nowhere.

0:10:58 Thomas: What's the record for most grand juries and paneled about you at the same time. I got grand jury's in different area codes and different jurisdictions, restrictions.

0:11:05 Andrew: It's I I don't know the answer to that, but I do know that like 50 years from now, the bar trivia like there will be all of these misleading questions that are like trying to steer you to Trump. But the answer is Nixon and vice versa. Right. Like, you know,

0:11:21 Thomas: Yeah, true. The answer is actually President Josh Hawley in 2028.

0:11:28 Andrew: Oh, Jesus. Thanks. Well, what a great what a good intro segment this has turned out to be.

0:11:30 Thomas: Hey, that was bonus, everybody, that was pre-segment magic. So let's get to our segments.

0:11:35 Andrew: Hey,

0:11:36 Clip: What I hear when I'm being yelled at is people caring loudly at me.

0:11:41 Thomas: All right. What's the final word on sea girt? We got more? I can't believe it.

0:11:45 Andrew: This is great. Well, we were contacted by a former, former lawyer for the firm that represents the NRA, right. Uh, so Patron RJ says, hey guys, uh, Secret LLC was so named because the NRA operated a rifle range in Secret, New Jersey, in the early 1900s.

0:12:03 Thomas: Oh, there you go.

0:12:04 Andrew: And then included a link to an article. Yes. In 1892, the NRA moved its pistol and sporting man's rifle competition to Seagirt, New Jersey. R.J. continues, the history is laid out in a venue transfer motion that I drafted for the NRA last November in the New York case. I assume my bosses at Brewer liked the name and decided to use it for their sham LLC. As I noted, the function of Seagurt was to manufacture venue. You. Contrary to what Andrew said on the NRA episode, the NRI was not permitted to file a bankruptcy in Texas. The statute only allows you to file where you are incorporated. Here it was New York. There is a provision allowing a company to piggyback off an affiliate filing. So NRA incorporates Seagird as a shell corporation in Texas so it could put Seagard into bankruptcy in its state of incorporation in Texas and then bootstrap its own bankruptcy petition onto it and referred me to 28 U.S.C.

0:12:57 Andrew: Section 1408. Not surprisingly, the expert that on is correct, and I mistakenly spoke when I said that the NRA elected to file in Texas. They, in fact, filed precisely the procedure that R.J. described. He was right, and I appreciate the correction, and I appreciate kind of the final word from the guy who created, you know, or was there at the creation of Seagirt LLC. So, uh, more stuff from Australians, apparently. Like they've also modified their, um, national anthem so that instead of saying "we are young and free," it now says "we are one and free."

0:13:32 Andrew: Uh, And that, yeah, well, that was supposedly to respect the ancestry of our first nations and indigenous peoples and to appreciate appreciate unity and multiculturalism.

0:13:32 Thomas: Yeah, because they got old. Too bad. Oh good point. Yeah. No kidding. Yeah that's

0:13:42 Andrew: So, that is literally the least. Yes, you're correct. But there you go. That is the last word on Seeger. Don't send any more emails. We loved it. We and we responded to lots of stuff. This was a tremendous amount of fun, but we've we can nail that coffin shut.

0:13:42 Thomas: It's the leasest all of our countries can do. Yeah wow.

0:13:59 Andrew: You know, It's

0:13:52 Thomas: Yeah well Well, that sounded delightfully old-timey. I mean, I'm sure the NRA... Well, I don't... I'm not sure. Was there a time when the NRA was just a delightfully old-timey, like some guys with the old mustaches lifting those dumbbells with the balls on them? And they just were sporting men with pist... And they wanted to shoot, you know, trap shooting or something. And now it's like, the Muslims are taking your...

0:14:18 Thomas: You know, like, it's turned into that. It sucks.

0:14:18 Andrew: It I will say it this way, um, and we should do a deep dive on this. Uh, the NRA was that organization until the 1970s, right? Literally through most of its history, it was an apolitical, uh, firearms safety organization. I have clients, I have two separate, separate clients, of whom is, somewhere to the left of both of us. Right. Super liberal guy. But, you when you teach firearm safety, you use NRA approved courses and materials. Right. Like and and that was its mission statement until it got infiltrated and taken over by right wing activists in the 1970s. It's a super fascinating story. And we should do a deep dive on it.

0:14:58 Thomas: It's too bad. Yeah.

0:15:01 Clip: Down the law, down the law.

0:15:05 Thomas: To intro this, Florida is being Florida, I guess is the thing to say. They passed a law to try to, like, fine, uh, social media that is banned Trump. How in the world is this gonna work? What is the, give us the breakdown, where's this gonna go? I have no idea. Yeah.

0:15:21 Andrew: Yeah. So this is Florida bill SB 7072, which was in fact signed into law by America's stupidest acting governor, Ron DeSantis, uh, who again I will point out has a degree from Harvard Law School, uh, not that you would ever know that

0:15:37 Thomas: I, I don't actually think he's stupid. I think he just knows what he needs to do in this day and age.

0:15:39 Andrew: Oh Yeah. Oh, that's why I said dumbest acting. Yeah. It is it. Yeah, so DeSantis signed Florida SB 7072 into law on Monday. Initial note I put down is this is what happens when you give an infinite number of Republican monkeys an infinite member of typewriters. But I will tell you, I'm going to tell you how insane this bill is. And it is. It is the single stupidest thing I have ever read that's ever been signed into law. We're also going to be saved by Karen's from the 1990s.

0:15:41 Thomas: Yeah. Okay. Oh, gotcha. Gotcha. Missed it, cynical.

0:16:14 Thomas: Whoa.

0:16:15 Andrew: So unlikely source. It's going to be great. The law has three components to it. One is kind of dumber than the last. The only one that is possibly able to survive is in The Middle. And even then, it will not survive a First Amendment challenge. OK, But so there's a fact finding section that doesn't matter. That doesn't have anything to do. Then the first one, section two, begins on page four, and it involves political campaigns. And a candidate is defined by cross-reference in Florida law to anybody who files papers and, you know, pays their money and signs the little little affidavit to be a candidate, right? So that includes fringe candidates, joke candidates, American Nazi Party candidates, right, like it includes Republicans, right includes everybody.

0:17:01 Andrew: And the law says a social media platform may not willfully de-platform a candidate for office who is known by the social media platform to be a qualified candidate, beginning on the date of qualification, i.e. the date that they file papers, and ending on the date of the election or the date the candidate ceases to be a candidate. A social media platform must provide each user a method by which the user may be identified as a qualified candidate and which provides sufficient information to allow the social media platform to confirm the user's qualifications by reviewing the website of the division of elections or the website of the local supervisor of elections. OK, so you can't de-platform and de- platform. Deplatform, by the way, I'll get to that precise section, but that means, you permanently delete or ban or temporarily delete or ban a user for more than 14 days. Right. So you cannot impose a ban of more than 14 days on a candidate for office in Florida under this law.

0:17:43 Thomas: Oh

0:17:58 Andrew: Period.

0:17:58 Thomas: So I guess my question already, off the bat, when you're reading that, how, how does the jurisdiction or whatever ever work of, is this if you are a social media company based in Florida, if you are doing business in Florida, is there any discussion of that, or is it just now any social media and they're just saying that any social media that exists in the world can't do this?

0:18:07 Andrew: Nope.

0:18:18 Andrew: That is an excellent question. It is the kind of question that I would expect the co-host of Opening Arguments to ask, that maybe the average listener would sort of overlook. So we're to get into the weeds on an issue that I was going to elide over, but I love being able to talk about this. So it is any social media company that does business in Florida.

And as part of that fact-finding section that I said I was, you know, going to skip over, um, it, it has, um, this is uh an additional part, this is from page 20 to 21, uh, it is subsection E7, uh, that says, for purposes of bringing an action against a social media company, um, we, we want to, uh, construe, it says, a social media platform that censors, shadow, shadowbans, deplatforms, or applies post-prioritization algorithms, and we'll talk about all that, to candidates and users in the states, is conclusively presumed to be both engaged in substantial and not isolated activities within the state and operating, conducting, engaging in, or carrying on a business and doing business in this state, and is therefore subject to the jurisdiction of the courts of the state.

0:18:25 Thomas: So

0:19:24 Andrew: So in other words, if you have a social media media platform that qualifies under the definitions here, and we're going to talk about that, if you were in Florida, right, if you do any action that applies to anybody who's using it on the internet in Florida, this says we're construing the jurisdiction so as to include you. Now, as a practical matter, this is not going to matter at all because social media company, see if you can see where they're going here, is defined as a social media, a company with 100 million or more monthly users or 100 million dollars or more in annual revenue, so, uh, yeah, now it also includes, see, see if you can figure out where this exception comes from. This is on page 17. It says the term does not include, the term meaning social media company, does not include any information service system, internet search engine, or access software provider operated by a company that owns and operates a theme park or entertainment complex.

0:20:03 Thomas: Not our purse, like our little, like, oh, a website or something, yeah,

0:20:31 Andrew: So think of, think about why that would be in there.

0:20:31 Thomas: This is well it's because Disney World world is in Florida, and they're, but what, who is, it sounds like kind of Google, but also what What social media does Disney own?

0:20:35 Andrew: Right. Right, because Disney, Disney Plus, Disney

0:20:43 Thomas: That's not a social media site, but

0:20:44 Andrew: TV. Right. It's not a, it's, but it is, uh, it could potentially be considered as such because it is providing streaming content over the internet.

0:20:55 Thomas: How would they ban? So they really want to make sure their Florida's candidates for, office for don't lose their Disney plus subscription. Is that what we're talking about here? Yeah.

0:21:04 Andrew: I Because of how badly written this law is, right, so, I, look, I have no idea how that exception got into the law, I would surmise a lobbyist for Disney called up, you know, the Republican speaker of the house and was like, uh, you're exempting us from this BS, right, yeah

0:21:16 Thomas: Just in case, right, hey, you know how we own you, yeah, could you make sure we don't, aren't included in this,

0:21:25 Andrew: Uh yeah uh, and that's the only way that that makes any remote amount of sense. I agree with you. Right. That, you know, Disney Plus is not a could

0:21:36 Thomas: If this is a secret sign that Disney's actually releasing a social media platform of some kind.

0:21:42 Andrew: Be. All right. So let's The bill very clearly is defining social media companies to target Facebook and Twitter. It's Right. 100 percent a show of fealty to Donald Trump. That's why they have the hundred million dollar thing in there. That'll exclude Mike Lindell's My Pillow Mania website and whatever. Right, Uncle. I think it's called Uncle Frank TV. Like it's anyway, that's obvious. But notwithstanding, that qualification includes the idea of, yeah, we're going to construe jurisdiction as broadly as possible to these multinational corporations that people happen to use, you over the Internet in Florida as across the world.

0:22:00 Thomas: Oh, my god. I just, it's so funny that one of those politicians is like, and I don't want to be cut off from the Mandalorian season three, is going to be amazing, make sure they can't cancel my Disney Plus subscription, hold

0:22:30 Andrew: That percent happened. OK, so. So now let's let's think about the application of this. This is it is illegal for Twitter to ban a candidate for public office in Florida from Twitter for more than 14 days. Right. For 14 or more days.

0:22:48 Thomas: On, I was actually going to ask a candidate, in Florida, a candidate for Florida office, because this wouldn't affect Trump if he's running for president. Oh, you

0:22:56 Andrew: No, it's that's hilarious. Like that's it. This is a a registered candidate. It is possible, I suppose, that when you run for president because you have to appear on the ballot there, that that would qualify.

0:23:06 Thomas: Get on the ballot in every state, uh, uh, okay, right,

0:23:09 Andrew: Qualify. But but that's right. Unless that fits within. And I and I got to tell you, it's not clear from the plain language of 106.011 E. But it is certainly possible that it would not apply to Donald Trump. It doesn't apply to Trump right now. Right. He's not a candidate for anything So yet. You cannot deplatform a candidate. And I'm going to continue to use this example because the law would say, so let's say that certain person decides to declare for public office as a representative of the NAMBLA party. And they post hardcore child pornography on their Twitter page every single day. You cannot ban them from Twitter despite the fact that they are posting hardcore child pornography. There was nothing. There are sections in here that exclude obscenity. This isn't one of them. So,

0:23:22 Thomas: Oh, my god. You're right, holy crap. Wow.

0:24:00 Thomas: Yeah.

0:24:00 Andrew: If you're a member of the Nazi party and you've decided to like post, and this is a far more likely occurrence than the Nambla party. Right. And you say, oh, yeah, You know, here, let's coordinate violence against a Jew, and here's where they reside, you cannot de-platform them for posting that repeatedly every day, like the beat up the Jew of the day. So long as you're a candidate, then Twitter cannot take that off of its Web site and cannot get they, they cannot be platform you and prevent you preemptively from continuing to post the beat up a Jew of the day. If they do, the Florida Elections Commission can use either their regular sanctioning process, or they can fine you $25,000 per day for minor offices in Florida, or $250,000 a day if you're a candidate for statewide office.

0:24:07 Thomas: I put both equal, it's Florida, so

0:24:59 Andrew: That is per violation per day against a candidate. And if you're thinking, well, that can't possibly survive, you would be correct. And we'll get to we'll give the one. But but yes, if that were to go into effect, that would be that section to the bill. That's that's part one. The stuff targeting candidates.

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0:28:19 Andrew: Section three, part two is a change to antitrust provisions. And this is something that really hasn't gone reported in the media because this is the longest section of the bill and it's the most confusing and it's the hardest to read. It's pages five to 15. Essentially, it's a poison pill. It defines a person as any social media company, social media company being defined as the, you know, the 100 million users or 100 million dollars test. And it says that the Florida government will then maintain a list of antitrust violators defined as any failure to comply with a state or federal antitrust law as determined in civil or criminal proceedings brought by the attorney general, a state attorney, a similar body or agency of another state, the Federal Trade Commission or the U.S. Department of Justice.

0:29:04 Andrew: So, right. If the Biden FTC goes after Facebook for unfair trade practices, which, by the way, every presidential administration since Facebook was founded has gone after Facebook for unfair trade practices. Then they would get put on this list. And there's a hearing and there's a long process that you really don't care about. Right? But nevertheless, you get put on the list right at the end of process. And if you're on the list as an antitrust violator, you are prohibited in any way from receiving state funds. That means state grants. That means bidding on state contracts, all of it. You are completely debarred in the state of Florida from doing business with receiving money from the state.

0:29:54 Andrew: So this is really a poison pill, right, that's designed to say like, oh, yeah, you want to go after Facebook for legitimate reasons, right? Right. For, you misusing privacy information for any of the things for which past administrations have gone after Facebook. OK, but if you get a consent decree, if you get any kind of determination that there was any failure to comply with any antitrust law, right, which includes unfair trade practices, then they're going to go on the list and we're going to retaliate against them in the state of Florida. This is the provision most likely to survive. I think I think it still won't because of the overly narrow targeting to any social media company, which seems very clearly to be discrimination on the basis of corporate speech.

0:30:40 Andrew: But that is, that's a First Amendment argument. That is not the, you 1996 is Karen's are are going to save us argument, the third part of the bill. So that's the antitrust stuff. That's why nobody's covered it. It's it's super legal and boring. But, you know, oh, a oh, listeners deserve and need to know. The third part is the part that's gotten all the attention. And that is the definition of, quote, unlawful acts by social media. And it, I just need to read some of the some of the definitions here and then we can describe what those acts are that that they are now prohibited from doing. So censor means any action taken by a social media platform to delete, regulate, restrict, edit, alter, inhibit the publication or republication of, suspend a right to post, remove, or post an an addendum to any content or material posted by a user.

0:31:34 Andrew: This also includes actions to inhibit the ability of a user to be viewable by or to interact with another user of the social media platform.

0:31:40 Thomas: Shadow Banning, I get to finally, going after shadow Baning. Oh.

0:31:43 Andrew: Shadow banning is specifically defined in this statute. We will get to it. Yeah. De-platform, we already described, that is permanent or temporary bans of more than 14 days. Post-prioritization means action by a social media platform to place, feature, or prioritize certain content or material ahead of, below, or in a more or less prominent position than others in a news feed, a feed, or viewer in search results. They The algorithm and provide a yearly opt-out to all of their users from the algorithm. Rhythm, um.

0:31:47 Thomas: Wow, wow.

0:32:09 Thomas: They're banning. The algorithm.

0:32:24 Thomas: Here's the thing. This actually isn't a bad idea, but Florida can't, do I feel like the U S Congress actually needs to do this. I've started to think lately, side topic that we won't go down. I think we should get rid of the algorithm. We shouldn't allow these algorithms. I was just realizing like it, the idea that like, it cause it happens to me every time I Google for my show or anything where I'm like, oh, I got to check what Ben Shapiro said. And then all of a sudden I'm getting all the Republican stuff, the right wing stuff, you know? It's such a, it's gonna rabbit hole me or whatever you call it, you know? And it's, I, I start to wonder if like, maybe that shouldn't be a thing that's allowed to happen. Maybe it should just be more organic. It should be more like the quote unquote free, know, marketplace of ideas. Not, oh, you Googled the moon landing once? Well, here's a million videos about how it was fake. I just, anyway, that's a side topic.

0:32:24 Andrew: Yeah.

0:33:11 Thomas: Though.

0:33:11 Andrew: I I love the idea that like you're gonna get red pilled like six months from now. You'll have a, like, you know, Ben Shapiro like podcast where it's like Thomas Smith explains why the Illuminati fake the moon landing. Yeah.

0:33:15 Thomas: Yeah. Andrew, I would never do that unless it would make more money than I might. No, I'm just kidding. It would definitely make more Money. The way you know that's not true is it always would have made more money and I haven't Done it yet. So

0:33:26 Andrew: Obviously. Yeah. No. It. There's so much, yeah, that I mean, certainly agree. There is such an interesting discussion to be had about the, in particular, like the YouTube algorithm. Right. That just seems to be a direct path to to radicalization that like, like Talking Points USA and Charlie Kirk have really figured out, PragerU. Right. Like there's a, there's a 2020 law review article that actually did an in-depth post on this in the Patreon content, on 45. But like, best evidence is that a billion independent views, right, that PragerU videos have been independently viewed a billion times and there have just been these this tremendous, tremendous infiltration at college campuses of these Koch brothers founded far right organizations that are, you know, really, really savvy about how to piggyback on the on the technology. So

0:33:33 Thomas: Yeah.

0:33:58 Thomas: Well,

0:34:31 Andrew: Any event, it is horrifying.

0:34:31 Thomas: That's Horrifying But Is This any

0:34:33 Andrew: And we start it.

0:34:33 Thomas: Different Than That Utah law that's like, we're gonna ban porn for Utah, like, isn't this kind of the same thing where it's like, how is the state gonna do this? I mean, hypothetically It conceptually, I guess, it makes sense for a state to be like, "This thing happens in our state, we don't want it in our state," but in this day and age, how's this gonna going to work with the internet? I don't get it.

0:34:55 Andrew: It it. Yeah, it's not going to work. And I'm going to I'm going to get to that. But but but you haven't even heard the worst. Well, the worst you haven'T even heard all of the rest of that. Like, but wait, There's more. So, shadow banning defined as any action by a social media platform through any means, whether the action is determined by a natural person, or an algorithm, to limit or eliminate the exposure of a user or content or material posted by a user to other users of the social media platform. This includes acts of shadow banning by a social media platform, which are not readily apparent to a user.

0:34:58 Thomas: Okay. No. Okay, I'm that shadow banning is my favorite thing because it's a perfect, it's like one of those conspiracy theories that boomers would trade in like a chain email in the nineties. It's designed for right wingers to be like, I don't understand why this right wing thing I posted isn't getting enough enough likes. I must be shadow banned. I'm, it must be, can you check, can you ask, are you seeing this? You know, it's like, is this thing on, but for Twitter, pretty much like Peter Boghossian, like a couple of years ago, it was like, I think I'm shadow banned, you know, just like, it it's a perfect thing for them to think.

0:35:49 Andrew: Yeah. Yeah. Yeah. And now it's law in Florida. All right. So those those are just the definitions. Now, here's what social media companies are prohibited from doing. They are required to publish the standards they use for censoring, deplatforming and shadow banning. B, and you can sue for this one and we're going to get to how you can Sue and for what they must apply those, quote, in a consistent manner among its users. End of quote. Now, if you're asking for a statute that defines what shadow banning is, do they define what consistent manner is? No, they do not. So it's literally just left to be like, no, you're treating me differently than someone else. That's inconsistent. I'm going to sue. And by the way, if you sue under this provision and this provision only, you are entitled to one hundred thousand dollars in statutory damages per claim.

0:36:04 Thomas: Yeah.

0:36:52 Andrew: Right. Plus your attorney's fees, which means that if this law were to survive, this would immediately become the biggest boon to contingency fee plaintiffs, lawyers in the state of Florida ever, ever.

0:37:02 Thomas: No, that would be all the billboards.

0:37:07 Andrew: However, it would be a hundred

0:37:08 Thomas: Hey, grandpa, have you been shadow banned? Have your right wing memes not gotten as many likes as you thought they should? I bet Bet you you've been shadow banned. Call today. It would replace the accidentes or

0:37:16 Andrew: Percent that will happen. Be on the back of every bus, on every billboard, in every retirement community in Florida. And you are correct that the pitch would be like, hey, grandpa, why does your post only have 23 likes and Antifa gets a million? Yep.

0:37:26 Thomas: Oh, man. Is your racism not getting enough good feedback? I bet you've Been Shadow Banned.

0:37:37 Andrew: Yep. I bet you have, and yeah, but fortunately it's not gonna happen. C, all it must inform its users before changing the terms and conditions, and cannot change those more than once every 30 days. Again, I'm okay with that one, like, in the abstract, that's totally fine, right? You want to say a social media company can only change its terms and traditions once every 30 days, and they have to explicitly notify all their users. I'm down with that, but d D, they may not censor, deplatform, or shadow ban you without providing you a notice, right? And it's got to be a written notice that's emailed to you, right, and they can't do it in a way that violates any of the other standards, right. Which include that it's gotta be consistent, if you ban one person for, you know, posting, like, whatever, they must give you a mechanism that allows a user to request the number of other users who were provided or shown the user's content or posts. And then give you what that number is. Right. So you have to say, like, I want to know exactly how many people read my tweet.

0:38:00 Thomas: Sure. Yeah. Yeah.

0:38:36 Andrew: That's now a law in Florida. They must allow you to opt out of post prioritization and shadow banning and allow sequential or chronological posts and content. And. And they have to offer that to you every year. Right. And they I'm

0:38:48 Thomas: I Yeah, I do actually want that. Seriously. Having said all this, I'm going to turn into the conspiracy. I swear, when you post links to other stuff on social media, they don't, don't let anybody see it. I swear to God. Like when you post, you post to like a YouTube link on Twitter or something, it'll be like one person side. I, I, I mean, I could be wrong.

0:38:52 Andrew: With you on that.

0:39:09 Andrew: Yep.

0:39:09 Thomas: I could beat the grandpa. I couldn't beat the boomer that I've been criticizing, but I'm pretty sure there's something going on there.

0:39:16 Andrew: Twitter may not post-prioritize or shadow ban a candidate at all.

0:39:22 Thomas: Oh yeah. I didn't think about this. Was this all still for candidates or was this for everybody? Okay.

0:39:26 Andrew: No, no, no. This is for everybody.

0:39:28 Thomas: Gotcha.

0:39:28 Andrew: But. So you can shadow ban or de-platform or post-prioritize normal people.

0:39:34 Thomas: Uncle Frank, yeah. Oh.

0:39:35 Andrew: You just. Right, you just have to do it in a way that is, quote, a consistent manner among its users. But if you're candidate, you may not post-prioritize that candidate. Candidate. Other than, of course, you can allow the candidate to buy ads because they were going to get rid of that in the law, obviously. Subsection I, this is my personal favorite. You must allow someone who is deplatformed at least 60 days to access or retrieve all of the content that was removed. So, yes, does that apply to kiddie porn? A hundred percent.

0:40:06 Thomas: My God, yeah.

0:40:08 Andrew: You have to say, like, yeah, okay, all right, Uncle Frank, we're gonna hold your kiddie porn here in this special server

0:40:10 Thomas: Yeah, make sure to download it before we delete it. What? Oh, okay.

0:40:13 Andrew: Yep You may not censor, deplatform or shadow ban, and it's basically Fox News, The Daily Caller, info wars whatever. It says a news organization, but again, like, you know, social media platform, news organization is defined as 50 000 online subscribers, 100 000 viewers for a TV channel, or 100 million viewers of online content, right? So it's really just, right, five or six right-wing news organizations. And you may not censor them. You may not de-platform them in any way. You may not shadow ban them in anyway. That one has an exception that says it does not apply if the content is obscene.

0:40:59 Andrew: So, yeah, they remembered it there. So if InfoWars posts kiddie porn, You have to let them get their kiddie porn back off the Internet. But you can censor the kiddie porn.

0:40:58 Thomas: So there. Okay.

0:41:10 Thomas: This is not well written, I think.

0:41:12 Andrew: You get that sense. Yeah. I want to talk a little bit about that, the only restrictions piecemeal in there are for obscenity. And you may be thinking like, OK, OK, well, obscenity, I've been using obscenITY as meaning kiddie porn, which which it does. But but you need to know that obscenITY is not coextensive with pornography. ObscenITY is a subset of pornography. It is well defined in the case law. Like the best test of it comes from a case called Miller versus California in 1973. Right. That says, hey, look, well, we're just talking about like porn porn, like which is fine.

The difference between that and seriously, like this is pretty much what the Supreme Court says vs. obscene material. Obscene material has to meet this three part test. So and I'm going to read it to you word for word because it kind kind of. OK, so I'm gonna go through it because this is just delightful how lawyers, you know, we're sort of attempting to word obscenity versus pornography. And I will throw in, because otherwise we'll get 100,000 emails about this Justice Potter Stewart's famous quote I may not be able to define it, but I know it when I see it.

Most unintentionally hilarious thing a Supreme Court justice has ever said prior to Antonin Scalia. Anyway, the Miller test, three prongs. Number one, whether the average person applying contemporary community standards would find that the work taken as a whole appeals to the prurient interest, okay, and the prurient interest means is it sexy, right? So test one, is it sexy. Test two, whether the work depicts or describes in a patently offensive way sexual conduct specifically defined by the applicable state law. And prong three, so it's all three of these, whether the work taken as a whole lacks serious literary, artistic, political, or scientific value.

0:41:13 Thomas: Yeah.

0:42:01 Thomas: So Like missionaries, cool. Anything else that's obscene? Yeah. Right.

0:42:23 Thomas: So Sorry. Sorry. What is this coming from? Cause does this still, cause I thought none of this exists anymore.

0:43:14 Andrew: This is it.

0:43:16 Thomas: Like there aren't.

0:43:17 Andrew: Oh, no. There are still occasional obscenity prosecutions. They dropped to zero under the Obama administration. I cannot find if people were prosecuted for obscenity during the Trump administration. But this is still this is is still the operative law.

0:43:30 Thomas: So this still exists in what then in what venue are we talking about? Like if somebody is prosecuted for what being making a movie, what?

0:43:34 Andrew: Yeah. It it depends on the state law. But there are federal laws that prevent in trafficking of obscene material. Let's get a real world example of this. The hardest part of the test is what qualifies as patently offensive, right, under the second prong. So, right, look, under the Miller test, I'm pretty sure. And when I say I'm pretty sure, I don't just mean like me commenting here. I mean, as a lawyer giving advice.

0:43:45 Thomas: My God. Yeah.

0:44:04 Andrew: Right. I can tell you whether something violates prong one. Right. Like, is it about sexy stuff? I can also tell you whether it violates prong three. Right, taken as a whole lacks literary, artistic, political or scientific value. That, by the way, you know, parenthetically, like that's why you got the articles in Playboy. Right.

0:44:22 Thomas: Although.

0:44:22 Andrew: Like because. Right. You cannot say that Playboy taken as a whole lacks literary, artistic, political or scientific value. Believe me, they tried for a long time.

0:44:31 Thomas: I would have thought that that's like a technicality that wouldn't work. Okay, you've got the purient or whatever thing, and then you would staple some articles to it. That doesn't really, is that a get out obscenity? Of

0:44:40 Andrew: Is a get out of obscenity free.

0:44:42 Thomas: Free. Oh.

0:44:43 Andrew: Yeah. So it's good advice. But then the middle question of what is depicting in a patently offensive way, sexual conduct that is prohibited by state law. So, you know, Gang Bang Secretaries 3, right? Like there's there are no articles in that.

0:44:43 Thomas: Okay. Oh.

0:44:59 Thomas: My Screen Sharing Right. Oh, no, that's just an example. Yeah, no, definitely.

0:45:01 Andrew: Yeah, right. There's no doubt in my mind. And in fact, there are cases that Gang Bang Secretaries 3 would have been considered obscene in the 1980s. And right, so if I mailed you a copy of Gang Bang Secretaries, you know, like, hey, Thomas, you know, here you go.

0:45:21 Thomas: Yesterday's obscenity is today's, like, it's not even worth watching.

0:45:21 Andrew: Yeah, correct. Well, that's right. Because, because, is that patently offensive? Right. The elements of Gang Gang Secretaries three that would have been considered patently offensive in 1985, I mean, obviously I'm not offended, I'm the one sending it to knows, you you don't know that

0:45:40 Thomas: And nowadays they're like, well, the sexism involved in the secretary being a woman is actually offensive. We can't, this is obscene.

0:45:47 Andrew: Is kind of offensive. Yeah. So look, nobody really knows, but here's how that all ties in together, and why 1990s Karens are going to save us. Right. Because it was well known that obscenity was not enough to make concerned mothers of America happy. And they were like, look, you know, little Johnny could get on the Internet and can access pornography. And don't go trying to tell me that, like, you know, naked women aren't obscene. Like, I don't care if it's obscene under this. I don't want little Johnny to be able to see naked women, them. And so they got together. We've talked about this before. They passed the Telecommunications Decency Act of 1996. We've talked about that, there are two immunity provisions in the Telecommunications Decency Act.

0:46:38 Andrew: We have talked about the first one before, which is 47 U.S.C. section 230 C1, which says treatment of publisher or speaker. And it says no provider or user of an an interactive computer service, shall be treated as the publisher or speaker of any information or content provided by another information content provider, right? And so what that means is, right, Matt Gaetz gets on Twitter and says defamatory stuff. You can't sue Twitter for allowing Matt Gaetz to have a Twitter account, right. They're not the publisher speaker. Matt Gaetz is the publisher speaker. And we've talked about that provision of Section 230 immunity. But there's another provision that is going to specifically apply here.

0:47:23 Andrew: And again, I want you to read this in the context in which this law got passed, which was superb. You know, my apologies if you find Karen offensive, like, I'm going to stick with it. I'm sticking with OK Boomer as well. I don't think it's.

0:47:37 Thomas: And Andrew is a boomer, so it's okay.

0:47:39 Andrew: Yeah. Thanks, Thomas.

0:47:41 Thomas: Sorry.

0:47:44 Andrew: I sound like two generations removed from boomers. Anyway, I know it's it's what makes it.

0:47:46 Thomas: It's funny because I know it bothers you. Sorry,

0:47:49 Andrew: I know.

0:47:50 Thomas: Sorry.

0:47:50 Andrew: I know you do. It's

0:47:50 Thomas: The one mean thing I do to Andrew. I love you, buddy.

0:47:52 Andrew: It is great. It is. No, it's really funny. And I and I andI accept that.

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0:48:44 Thomas: I hate when, when I buy too much of an ingredient or even worse is not enough. Then you got to go back to the store and then you probably buy too much then and so you do both. You buy not enough and then anybody too much and you got to throw it away. I hate throwing away food. It's the worst. It feels so terrible in this day and age to be throwing away food. HelloFresh helps me always have exactly the right amounts that you need. You got the right ingredients. You got to throw amounts. No waste. It's the best, and the other hardest thing about being an adult is is trying to figure out what to eat for dinner without spending too much, which is really easy to do on takeout or delivery. And the meal planning is so nice because it is stressful week in, week out to try to figure out some variety, some healthy food. HelloFresh does all that for you because they've got 25 plus recipes to choose from each week, from vegetarian meals, which is what I need, to craft burgers and extra special gourmet options.

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0:50:16 Andrew: And I accept that. So look, but you have to understand, in the 1990s, part of the appeal of the Clinton administration to, you of say, hey, we're a different kind of Democrat, is to say, yeah, we are appealing to suburban moms, and you know, we're going to co-opt some of the rhetoric of the right wing about issues like you violence on television and pornography on the internet

0:50:42 Thomas: Yeah, because what drives me nuts about a lot of the analysis of the 90s and all that is people maybe don't realize that Republicans won the presidency 8,000 times in a row and Democrats had to find something or scrambling for some way to be politically relevant.

0:50:44 Andrew: Yeah. Yep. Yep. Yep. That is exactly right, and so one of the things they did, and again, you can tell from this coverage, I'm not a huge fan of it, but But needs to be understood in context, was they said, "All right, we're going to try and take some of these social issues where, you know, Michael Dukakis lost 40 states in 1988 because he was perceived as right." This was the, you Know, pledge allegiance to the flag.

0:51:03 Thomas: No, yeah.

0:51:16 Thomas: Right. Landslide losses, by the way. You're right. Not just us Us losing, Democrats losing, landslide losses.

0:51:18 Andrew: Right. Yes. Yeah. And he was asked the question, you Know, should kids have to say the pledge of allegiance? And he was like, I'm a card carrying member of the ACLU. They have a First First Amendment right to sit down. I don't know what you're talking about. And the idea was, see, he's just so unpatriotic. Like, yeah, he

0:51:35 Thomas: Okay, Dukakis was actually super rad, by the way. I'm actually a pretty big Dukakes fan after hearing a podcast about him the other day. I was like, wow, this guy was awesome.

0:51:38 Andrew: Was. I was 13 at the time. I volunteered. My first political experience was licking envelopes for the Dukakis campaign. I thought he was going to win the presidency. He lost Maryland. So, so yeah, right, that's the mindset and the idea of the Telecommunications Decency Act of 1996, as you can tell from the title, was hey, let's try and reassure our suburban moms that we're going to do everything we can to make sure their kids don't see porn on the internet. Um, side note, didn't work great. Um.

0:52:12 Thomas: A What are you talking about? I never saw a single porn of any kind, a unit of porn.

0:52:13 Andrew: Yeah. So, 47 U.S.C. Section 230 C2 provides a safe harbor provision to do that, and it says as follows: No provider or user of an interactive computer service shall be held liable on account of A, any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected, or B, any action taken to enable or make available to internet content providers or others the technical means to restrict access to material described in paragraph one.

0:53:05 Andrew: So it's very clear what that safe harbor was meant to do. It's meant to say, hey, and again, remember, interactive computer service, that's not a thing now. Right, the definition clearly includes social media companies. Think about that again. This is 1990s. They're thinking of America Online. So they're like, hey. Everybody gets out on the Internet via America Online, America Online says, hey, you got to be 18 in order to access the, you know, topless women here. And the whole purpose of the Telecommunications Decency Act of 1996 was to say, yeah, we want to facilitate. We want to make we want have the use whatever standards you want to try and restrict access, not. Yeah.

0:53:43 Thomas: Standards like the ironclad, are you 18?

0:53:47 Andrew: Are you sure about that? Enter your birth year to be sure, because nobody could possibly fake that one. And so it's 100 percent obvious that, like, that's the purpose of the law, and the by the way, right, we could talk about, we should, it's on the whiteboard to do a deep dive on preemption. But federal law can sometimes be read consistently with state law, sometimes it preempts it explicitly, it says all other state laws to the contrary, uh, are, uh, you know, to be read as inconsistent with this law, and sometimes they occupy the field, they say hey, we don't want states regulating in this area. Um, the Telecommunications Decency Act of 1996 specifically says, this is subsection E3, no cause of action may be brought and no liability may be imposed under any state or local law that is inconsistent with Section 230.

0:53:52 Thomas: Oh, Yeah, oh,

0:54:39 Andrew: So, this is meant to be as broad a protection as possible for anybody who provides content on the internet to voluntarily restrict access to some of that content that falls into those broad categories of lascivious, excessively violent, harassing, or otherwise objectionable. So all of this law is 100% inconsistent with the Telecommunications Decency Act of 1996, it will be enjoined, it does not go into effect until July 1. Um, it will being joined, uh, sections two and four, uh, will unquestionably be struck down. Subsection three, that's the antitrust stuff, will almost certainly be struck down, although it's not clear that that's because of Section 230, that'll be because of First Amendment, and arguments that we don't really have the time to get into here.

0:55:26 Thomas: So, So, I, I got so just enamored, just distracted by the porn, 90s porn content. That I, so, the problem is 230, is that the problem?

0:55:32 Andrew: Yeah, yeah, yeah. Yeah. That is the problem with two-thirds of this law. It is it's inconsistent.

0:55:35 Thomas: Wow. So it's Not really the first amendment? I thought early on you said First Amendment, I was just, I, maybe my brain was primed for like, yeah, First Amendment, right, for the company to ban whoever, but it sounds like 230 is the thing, that Section Section 230 is the thing that's really getting this law.

0:55:52 Andrew: I don't even have to get there. Right. So, in other words, the Supreme Court has a doctrine, and it's part of how I approach these, that says you don't resolve constitutional issues if you don' need to. Yeah, so we don' need to figure out could the state of Florida pass this law if the federal government repealed Section 230, because they haven't. Section 230 is there. And it very clearly says we want to protect internet service companies, content providers on the internet who voluntarily restrict access to certain material. And no liability can be imposed by any state law for complying with that section. So all the stuff that you've read about, all the staff that we went through and laughed about, uh, we're all safe thanks to concerned moms for America who organized in the 1990s to make sure that, uh, little Johnny could not get onto, uh, America Online and see those, uh, you know, topless pictures of Phoebe Cates. Um, there you go, congratulations.

0:55:55 Thomas: Oh, okay. Sure, yeah, yeah.

0:56:51 Thomas: Just pulling random examples. Nothing that you know anything about. Just random reference.

0:56:53 Andrew: You say not not nothing that you know was was definitive from my childhood for forever, yeah, uh, but there you go.

0:56:56 Thomas: Yeah.

0:57:00 Clip: WOAH-

0:57:05 Thomas: This was borderline just enough to squeeze into the wildcard segment, but we did it, and the listeners deserve it. So, did Dersh win a defamation lawsuit?

0:57:15 Andrew: What Alan Dershowitz won, was, uh, he successfully fought off a motion to dismiss, uh, filed by CNN. So, uh, here's what happened. Um, in connection with the first impeachment, right, remember that, Ukraine, January of 2020, Alan Dershowitz was testifying before the Senate, yeah, yeah exactly, very, very good Dersh reference, an answer to a question by Ted Cruz on whether the president's conditioning aid to Ukraine in order for the president of Ukraine to publicly announce an investigation into Hunter Biden so as to secure his reelection, Alan Dershowitz opined that such a thing would not be illegal. And what he said was the only thing that would make a quid pro quo unlawful is if the quo were somehow illegal, presidents right, can condition stuff explicitly all the time. They can say, hey, I'm going to hold back this aid to you unless you, you know, agree to stop human rights violations.

0:57:15 Thomas: Oh.

0:57:34 Thomas: More like Testa lying, am I right? Eh? Eh? Good referee? Dershowitz? Eh? No.

0:58:25 Andrew: Right. And then he says, so what you have to do is you have to take a look at the motives. And if there is a purely selfish motive, I'm going to hold back aid unless you, give me a bag full of money, then that would meet the definition of, you know. A purely selfish, purely illegal motive and would therefore be an an invalid quid pro quo. But if you're just saying, I want to do this so that I can get reelected, that's that that's actually a mixed mode of that. Yes, he's got some personal investment in wanting to be the president again. But also that there is intermingled with that a public interest. And Right. That therefore it would never be wholly improper because part of it is based on what you're doing, what you think is in the public interest, which is you're the greatest president on Earth.

0:59:21 Andrew: And so, quote, that cannot be the kind of quid pro quo that results in impeachment. End of quote. Now, what CNN did is basically what I just did right there. Right. They edited Alan Dershowitz's answer. This is a lightning round. It was a page and a half when quoted in the court's order. Right? Like it was a super long answer with lots of qualifications because lawyers and this is what we do. Too. CNN is not in the business of like putting on uninterrupted statements by lawyers for five minutes at a time. Right. They have eight second soundbites. So they took the soundbite, they put it on.

And then their commentators said, well, sure sounds like Alan Dershowitz thinks that the president can can't commit crimes and can't be impeached for it, which, by the way, 100 percent fair reading of Alan Derschowitz's comments. So Right, Dershouitz sued for for defamation, CNN moved to dismiss that lawsuit. And they said, not defamation, for two reasons. Number one, fair reporting. We just quoted Alan Dershowitz. And two, to the extent that he's mad about other stuff, that was our commentators reacting to what they believed that Dershouitz said. That's protected opinion. That can't be defamation. And the court said... it's really, really, really crucial to understand. This is a terrible ruling. I do not endorse this ruling.

And in the event that the case goes forward and isn't settled, I would expect that this would be 100 percent addressed on appeal. This is in Florida, so that would be the 11th Circuit. But in any event, the court said, OK, I'm not going to dismiss at this early stage.

0:59:40 Thomas: Yeah. Mm-hmm. Yeah. Yeah.

1:00:56 Andrew: I'm going to say that there isn't an argument to go before a fact finder. And that argument is going to be set forth as follows. Right. Which is, did you provide the appropriate context for Alan Dershowitz's quotes for it to be part of the fair reporting privilege? And was your commentator's opinions as to what Dershowitz was saying, was that a fair construction of what Alan Dershowitz actually said? Because the idea there is when I say Alan Dershowitz is an idiot, right, which he's not. But, you know, if I say Alan Dershowitz is an idiot, that is a pure statement of opinion and cannot possibly be libelous, slanderous, cannot be defamation against Alan Dershowitz in any way whatsoever.

1:01:45 Andrew: Right. Just my opinion. Right, you're a jerk. You're an idiot. You're a butthole. Right? I could go all day long. Um, that's pure opinion. But when I say Alan Dershowitz believes that X and that makes him a butthole, like now that becomes a mixed statement of opinion. In fact, right. The phrase "Alan Dershowitz believes," uh, is a statement of fact. That, right, could potentially be libelous or defamatory, now. Right. Look, this is a ridiculous argument because the question is, what is the proper context for a 10 minute filibuster by Alan Dershowitz? That is full of a bunch of ridiculous qualifications. Right. How much and how accurately do non-lawyers have to get it right when failing to include legal minutia in describing the net effect of a public lawyer's public commentary on an issue of public importance?

1:02:40 Andrew: Right, the charitable interpretation of what Paul Begala and others, which were the comments that Dershowitz identified by CNN as being defamatory, that the charitable interpretation when they say, So, for example, Joe Lockhart said that doesn't give you a license to commit crimes. So that's absurd. Right. That's what Joe Lockhart said via Twitter. John Berman said the president's defense team says that if a president is running for reelection because he thinks getting elected will help America, he can do anything, anything. And Dershowitz said, well, look, that omits the crucial qualification I give that if it's for a purely private motive, he cannot commit illegal acts. Right, but it correctly summarizes that if it's in the context of reelection, you define that as by definition not being possible to be a crime.

1:03:26 Andrew: Because it includes considerations of the public interest. So those to me seem to be within the bounds of fair and permissible interpretation. Right. Like, like people misconstrue stuff you and I say on this show all the time.

1:03:39 Thomas: And we sue their asses for it. No.

1:03:40 Andrew: Right? And of course we don't sue them for it. And sometimes, you know, you try and be charitable. Alan Dershowitz is on Twitter. He's public figure. He has a platform whenever he wants. The idea that you have to resort to defamation law to tell CNN, you you should have given me better context, is that, that makes this a terrible, terrible ruling. But not. He did not win a defamation. He won the right to go forward. And, you, that is the default position in defamation suits, because, again, remember, you only went on a motion to dismiss if there was no construction of the facts that could possibly Give rise to a legal cause of action. And the court here says, you know, not willing to say that right now. I'm, you know, a great... let's not drop the mission accomplished banner if you're Alan Dershowitz. So

1:04:18 Thomas: Yeah.

1:04:26 Clip: And thank you, Let's go!

1:04:27 Thomas: And it's time to thank our new patrons before we do guess what? It's already the end of another month. So it's patron Q and a time. Uh and of course I say patron Q&A, but that's because the patrons can ask the questions. Everybody can come hang out at YouTube. I will throw up the link soon and you can come hang out and do the video Q&A. We're going to do that the 31st, Memorial Day. Hopefully everybody will be, you know, you'll be off maybe work and you want to come hang out, have a have a brew or something. 3 p.m. Pacific, 6 p.n. Eastern. That's Monday the 31rd, patron Q&a live on YouTube. Andrew's going to get the a question thread going on Patreon. So you know what to do, everybody. You know what to do. Teresa, get on that question thread.

1:05:12 Thomas: But I've got to thank our new patrons who maybe can ask a question on that patron thread if they want. Thank you to Art Cannon, John Morse, a Finn wondering how the clownhorn he ended up here. I, Thomas, have finally reversed on Hamilton, my new favorite musical. Avogadro the Star Nosed Mole Furry. Trixie. I've forgotten what stare decisis is, and at this point I'm afraid to ask.

1:05:11 Andrew: And

1:05:41 Thomas: Cassie Hartzog, and that's it. Your turn, Andrew.

1:05:43 Andrew: A big thank you to NeepyNorp, to University of Toledo College of Law Bound, hey, congratulations, congratulations, to BrewHaHa, that is B-R-E-W-H-A-H-A, the Chicago drinking pod, to RJ, to Tim English, Ronald McCully, and if this is to be believed To Andrew Sidles, but is only the third best at FFRF Well, I Yeah Huge If true, thank you all so much, uh, you remember, you get on this list, we'll, we'll say, say whatever you want, you know, within reason, at patreon.com/law. Give us as little as a buck an episode and we will compliment your butt if that's what you want.

1:06:03 Thomas: Oh, wow. Oh, big news. Huge if true.

1:06:26 Clip: Oh, no associate of this firm has ever failed the bar exam. No kidding.

1:06:32 Thomas: And now it's time for T3B coin edition on a heck of a streak, I think. Two or three questions. I don't know. But anyway, let's see how I do. And let's See if this coin has learned anything since it's been listening to the show.

1:06:47 Andrew: Right, Thomas. A protester brought an action in federal court against a police officer, alleging that the officer's use of force in arresting the protester violated the protesta's federal civil rights. During the jury trial, eyewitnesses gave conflicting testimony on the arrest. At the close of evidence, the protester moved for judgment as a matter of law, which the court denied. The court instructed the jury that the protesta's burden of proof was clear and convincing evidence rather than the correct burden of preponderance Of the evidence. The jury returned a verdict for the officer, and the court entered judgment accordingly.

1:06:51 Thomas: Jeez. Geez, okay. Oh. Huh. Interesting.

1:07:20 Andrew: What is the protestor's best option for challenging the judgment? A. Seek a new trial because the jury instruction affected the protesting's substantial rights. B. Seek a new trial because the verdict was against the clear weight of the evidence. C. Seak judgment as a matter of law because the jury did not have legally sufficient evidence to find for the officer. Or D. Seck judgment as matter of a because jury's findings were clearly erroneous.

1:07:24 Thomas: Wow.

1:07:47 Thomas: Okay, interesting. So we'll go through the relevant facts here one more time. Protester gets roughed up, so we've got a jury trial, eyewitnesses give conflicting testimony, at the close of evidence, as we always see, you know, the, the protester moves for judgment as a matter of law, which court denies. Okay. Court instructed the jury that the protester's burden of proof was clear and convincing evidence rather than the correct burden of preponderance of the evidence. So the judge done effed up. And so the jury went the other way. A. Hmm. So what's the best option for challenging the judgment? This is, what's the best action, those ones are hard. A. Seek a new trial because the jury instruction affected the protesters' substantial rights. I mean, that seems like the straightforward answer. The jury instruction.

1:08:33 Thomas: That seems like a killer argument to me. Like if the jury is instructed for the wrong standard, that that is obviously a big deal and would affect the trial. So I would Would think A would be the straightforward answer that I'm so far leaning toward. Okay. B, seek a new trial because the verdict was against the clear weight of the evidence. Well, I don't really see that. It seems as though eyewitnesses gave conflicting testimony. Would the verdict be against the clarity of the... I think B seems bad. Eliminating B. C. Seek judgment as a matter of law because the jury did not have legally sufficient evidence to fine for the officer.

1:09:16 Thomas: Have sufficient evidence to find for the officer, it seems like it's more like, well, you need a preponderance of evidence to find, to prove something wrong happened. Otherwise, you know, I guess it is a civil thingy, so it's not like a criminal trial for the office. But it still seems weird to say that the jury did not have legally sufficient evidence to find for the officers. It's weird, so C is a weird way to word it, and, but I don't know if it's just trying to be tricky, you know, like on one hand, C seems wrong because, like, it sort of seems like the burden of proof is on the protester, and so it's more like, well, did, did you have enough evidence for the protesta or not, but the way C is worded, it's like the, the jury, heart of the answer is, kind of makes sense to me, which is seek a judgment as a matter of law, because if you are applying the correct standard of evidence, then you got the wrong verdict.

1:10:09 Thomas: Like I get that as a possible answer to this question, but the way it's worded just seems wrong to me. So I'm not, I'm unsure on C. Let's go to D. Seek judgment as a manner of law because the jury's findings were clearly erroneous. So we know, we all know, listeners of OA, that the jury is a black box, but the standard, I think, I think clearly erroneous is like the, the one of the few ways you can even, well, I don't even know if you can get in there for that, like the jury's finding, overruling a jury verdict, I think is a really tough thing to do, like saying, like, "Ah, this jury messed up," I guess is a really tough burden, burden. The jury's findings were clearly erroneous, I feel like it's more about the jury instruction.

1:10:54 Thomas: Just not in love with any of these answers besides A. Like, I don't even, I'm worried because I feel like there, there have been a few straightforward questions in a row and I'm worried that I'm missing something here, but I think A is solid and I really lean toward A. If I now I need to pick a second chance for coin purposes, let, I think I would go between A and D. I'm close with C, but I think D would be like, yes, the jury instruction was the problem, but the way you get a new trial or whatever new judgment is, by saying the jury findings were erroneous because of that, rather than going after the jury inspection itself. But I don't know. It seems like A is really clear. So I'll be curious what the coin picks. So, I'm picking A. I mean, between it's hard between C and D as to what's the best second choice answer, but all right, A and D, I'm picking A. I'm gonna flip a coin, ready?

1:11:43 Thomas: Heads. Oh, it agrees with me this time. Okay. Coin agrees with my head. Coin says A. I say A. Final answer.

1:11:49 Andrew: All right. And if you'd like to either agree with Thomas and the coin, maybe go against him, you know, how to play along with T3BE, just to share out this episode on social media, include the hashtag T3BE, include your guess, your reasons therefore. We will pick a winner and shower that winner with never-ending fame and fortune. Fame and fortune not guaranteed.

1:12:06 Thomas: Thanks so much for listening, everybody. We'll see you on Tuesday and at the Q&A on YouTube on Monday. So catch you then.

1:12:14 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.

1:12:48 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.