OA495: Mr. Fish Goes to Washington

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 495. I'm Thomas. That's Andrew. How are you doing, my friend?

0:01:23 Andrew: I am fantastic and I mean it.

0:01:27 Thomas: Wait a minute. Did you not mean it all the other times? Crap, everybody.

0:01:31 Andrew: Only time will tell.

0:01:32 Thomas: Did Andrew never mean it? Was he faking this whole time? I'm also fantastic because we've got our Q&A tonight. It depends on if you're a patron, you're hearing this. If you're a patron, reminder, patrons get episodes early, uh, sorry, at least the Tuesday episodes, they get on Sunday night, look at how early that is for patrons, and of course ad free, and while I'm at it, I might as well also add that, uh, for patrons I do them the favor of totally re-editing the episode so that the patron thanks is the last thing in case they want to skip that, because some patrons like to skip that, so those are all perks. But in addition, in addition, you also got to ask some questions on the Patreon thread, and that Q&A will be Monday night, so there may still be time as you're hearing this, Monday night Eastern time, 6 p.m. Eastern time, sort of afternoon for me, 3 p.m.

0:02:19 Thomas: Pacific. So if you are hearing this and it still hasn't happened yet, go check it out. If not, you know, you can always go watch the video on YouTube as well. So I'm fantastic for so many reasons, but also because of today's content, as always, we've got good stuff, including a breakdown. You may have heard on the Daily podcast. I know a lot of our listeners listen to the Daily because it is one of the biggest podcasts in the world, but also it's great. I listen to it. There was some coverage of a First Amendment case that's very interesting. Can't wait to get Andrew's take. And then we've got an interview with Nick Fish, the president of American Atheists, about what I'm pretty sure was a personal meeting with Joe Biden. And I can't wait to hear. Well, I don't think we have any more announcements. Right, Andrew? Let's get to our show.

0:03:05 Andrew: Let's get to it.

0:03:07 Clip: Down the law, down the law.

0:03:11 Thomas: So as I said, The Daily did a whole episode on this really interesting free speech case, and I always think whenever there's mainstream coverage of a legal story, as an OA listener, I think, I wonder how they did, you know, I wonder what, what Andrew would think of this. And I know a lot of our listeners, on one hand, it might be like, well, they've already covered this story, so should we cover it? But on the other hand, I love when Andrew gives us the signature deep dish, deep dive, and uh, it's like, well, here's what the lamestream media is missing on this thing. So why don't we break it down? Let's find out how the, how they did.

0:03:50 Andrew: So this case is called Mahanoy Area School District versus B.L. Individual involved here was under the age of 18 at the time. Newspapers have since published her name. I don't know if that's because she did so voluntarily. I don't think it's critical. They do so on The Daily Podcast guest, um, I'm gonna call her BL in- any event, um, it, it was a super interesting case that went to oral argument at the Supreme Court, um, and uh, this is one of these cases where, you know, my feelings on oral argument, right, like I think it is, uh, an overrated aspect, and that the work is done behind the scenes and on the briefs, um, this is an area where I went, I listened, I'm going to link it. But because these oral arguments are all telephonic now, you can go and listen to it yourself and hear, you know, Brett Kavanaugh sound like a goofball.

0:04:14 Thomas: Sure.

0:04:44 Thomas: I was, I was waiting to talk about, that was the funniest thing about this daily episode was they played clips of Brett Kavanaugh being like, yeah, I don't know about the law or anything, but like this cheerleader, she's a competitor. She's, you know, he's going into like psychoanalyzing this, this girl because, well, we'll get to it, but she, the, you you know, the thrust of the story of the case is that she did a Snapchat that included like, you know profanity against the school and she was kicked off the team for it. And Kavanaugh over there, you drink minimum Kavana, I assume he has a brewski in his hand while he's characterizing the cheerleader and being like, she's blowing off steam, she competitive girl, you know? And I'm like, what, what the, what is it? Was that as weird as it seemed to me, Andrew? Drew.

0:05:26 Andrew: It it was weird. This is one of these very, very rare cases. I think back to, again, Enduring Andrew Was Wrong, that our buddy Andrew Seidel never lets me live down, where, you know, I was like, no, I'm I'm sure that Trinity Lutheran is going to go fine, even though the oral argument seemed kind of disastrous, uh, and Andrew Seidel was like, yeah, but like the facts of that case are really, really bad. And, you know, long-standing legal aphorism, bad facts make for bad law. Um, that is 100% the case here. This is going to be one of those weird cases where the the Supreme Court is going to overrule the lower court decision, right, but nevertheless do so in a way that tries to to give relief to the party in which the Third Circuit ruled in favor of. Right. So so let's talk about the facts there.

0:06:21 Thomas: So wait, this is you making a prediction? Because it seemed, based on the coverage, it was very unclear what was going to happen.

0:06:24 Andrew: Yeah. Oh, I think it's I think it's very, very clear what's going to happen here. So I'm I'm happy to to jump in on that.

0:06:29 Thomas: Oh, okay. That's why you got to listen to this show.

0:06:34 Andrew: Yeah, that's right.

0:06:34 Thomas: The Daily. Daily Shmaley.

0:06:38 Andrew: So here are the facts of the case, as as you put about BL was a 14 year old rising junior, a rising sophomore in high school. And, uh, she was on the, as a, as a freshman, she Was on the JV cheerleading team. She tried out for the varsity cheerleading team. Um, sadly found out that, she uh didn't make it, uh onto the, uh varsity, uh cheerleading team at Mahanoy Area High School. And so she decided on Saturday, right, hanging out with with a friend, took a picture of herself and her friend, posted on Snapchat. They've got the middle finger salute and the caption said F school, F softball, F cheer, F everything.

0:07:24 Andrew: Thing, actually, right, spelled out the word, right? Seems like kind of an this was Brett Cavanaugh's point, right? Um, that seems like a kind of a normal thing for a 14 year old girl to do. Uh, it's also, on Snapchat, was sent, you know, was set to disappear after 24 hours, but, you important lesson, uh, somebody uh screenshotted it, and she had 250 friends, friends screenshoted it, shared it around, uh, and it got back to uh the school. Um, it was sent to uh the cheerleading coaches.

0:07:29 Thomas: Yeah.

0:07:53 Thomas: Kavanaugh would have won me back if he was like, actually, I'm going to rule that narcs need to not be narcs.

0:07:54 Andrew: Yeah, Yep, so the cheerleading coach, uh, you know, got the copy and then said, uh, this is all from the record, several students, both cheerleaders and non-cheerleaders, had already approached her, and they were, quote, "visibly upset" to express their concerns you know, that the uh

0:08:11 Thomas: And tears I'm sure, oh they've never seen such violence, yeah, I'm sure, 40 come on, this is typical high school behavior I

0:08:15 Andrew: Yeah right yeah yeah So the coaches decided that that Snapchat, uh, by the way, the Third Circuit uses the the noun "snap" throughout, I'm not a Snapchat person, so is that the the appropriate, right? Is that like Like, all

0:08:33 Thomas: Think I'm also not a snap, snapper, I'm Not a snapper, Dan, man, I, yeah. I think it is a snap, though, I think that is the name of the thing Gosh, week, you know, today we're both boomers, Andrew.

0:08:40 Andrew: Right. Yeah, well, the, yeah, the hip third circuit says, you know, her snap violated team and school rules, which required cheerleaders to, quote, have respect for their school coaches and other cheerleaders. Avoid foul language and inappropriate gestures. Refrain from sharing negative information regarding cheerleading, cheerleadors or coaches on the Internet. So OK, she gets suspended from the JV team for a year and her parents sue to have her reinstated. She wins at the district court level and which says, no, look like you have a First Amendment right to express opinions. Opinions and, you know, the school can't retaliate against you for the substance of your opinions, even though extracurricular participation is a privilege and not a right.

0:08:53 Thomas: Oh, snap.

0:09:32 Thomas: Well, and crucially, right, because she wasn't on school premises. Does that matter?

0:09:35 Andrew: Well, it does somewhat to the district court opinion, but that really comes through at the Third Circuit. You've highlighted exactly right and why the Supreme Court is going to reverse. Because remember that, you know, district court's job is to determine the facts. They ruled in BL's favor on summary judgment. So no trial. They adjudicated on the facts and said, look, you Know, we think this is how the facts apply to the standards of First Amendment law. When you appeal, the question is, have you applied the law correctly? And so the The Third Circuit's opinion essentially reads Supreme Court precedent as drawing a bright dividing line to say that schools have an interest in regulating conduct that occurs on the school campus, but they cannot apply that same interest to off-campus speech.

0:09:43 Thomas: Oh, OK. OK.

0:10:38 Andrew: And the case that gets mentioned and analyzed significantly on The Daily Podcast is the most prominent case in student, children under the age of 18 right to free speech, a case called Tinker versus Des Moines from 1969. It's a Vietnam War case. Kids silently, you know, wore black armbands to school to protest the Vietnam War, and the school administrators, thus proving their point, uh, decided that that was, you know, a disruption to the educational environment and suspended all the kids and said you can't come back until you're not wearing the armband. Um, they sued, went all the way up to the Supreme Court, and the Supreme Court said, it's one of the most famous holdings, right? Students in public schools do not shed their constitutional rights to freedom of speech or expression at the schoolhouse gate, right?

0:11:29 Andrew: So prior to Tinker versus Des Moines, we did not know if children had a free speech right. Those under 18 had a right to freedom of speech under the First Amendment. There was no case that said that. This right was the first one that said, yeah, kids have a free-speech right. But that free- speech right is more limited. It's narrower than an adult's free-speech right. How narrow? We We don't know. That's right, not how Supreme Court cases get decided. Right? Like, we we announce a legal principle. We apply to the facts of the case. Would it apply in other contexts? I don't know. But we do know that just because you're on government property, just because you're in a government building, and just because you're under the age of 18 doesn't mean that you're not still entitled to some level of First Amendment rights. And then basically the case went on to say, and this is about as minimal an expression as you could possibly imagine.

0:12:19 Andrew: Right. So Right the Tinker case said that students cannot be punished merely for expressing their personal views on the school premises, whether, quote, in the cafeteria, on the playing field or on the campus during authorized hours. End of quote. Unless school officials have a reason to believe that that speech would, quote. Substantially interfere with the work of the school or impinge upon the rights of other students. End of quote. So one of the things that's that's odd about the Third Circuit opinion and the subsequent coverage is that's not Tinker saying that the school's interest applies on campus. It's the other way around. Right. It's The School saying, even though you're on campus, you still have a free speech right. And well,

0:13:05 Thomas: Wouldn't it wouldn't suggest, though, that the disruption part does kind of, like, the school's interest in preventing disruption does kind of correspond or correlate with being on campus?

0:13:16 Andrew: And that and that goes to sort of the core of the arguments being raised here against the Third Circuit's opinion, right, both right and left. So so we'll get to that, the case that immediately came to mind for me is that is a 1988 case. So 20 years later that if you took journalism in high school, you learned about this case. Right. It's called Hazelwood Independent School District versus Kuhlmeier. And it involved a school newspaper, the Spectrum, which was meant to be a student run paper. Right. So, you know, you take advanced journalism and the idea is, you get to make your very own paper. And, you know, it's students on the masthead and student stories and student reporters and everything else, unless you say something the administration doesn't like. And then all of a sudden it's the school paper. And this was 1983. 1983. So the things that the school censored here, and I'm not making this up, was an article on teen pregnancy,

0:13:16 Thomas: Okay. They.

0:14:14 Andrew: Which redacted used false names for the for the girls that were involved, and an article on divorce and how and how tough that is on on families at home. And the school was like, hey, that is way too spicy for a high school paper, so we're going to censor these stories. Um, and and if you think that, like, I'm incorrectly characterizing the, uh, the school district here, I will quote directly from the record, which was, quote, these stories are, quote, inappropriate, personal, sensitive, and unsuitable for student consumption, end of quote. So the question was, can the school do that, right? Can they say, yeah, we don't want high school kids talking talking about the sensitive subjects of, pregnancy you and divorce. And the answer, 6-3 from the Supreme Court, 1988, was, yeah, school can do that. Again, goes back to Tinker. It says, yeah, absolutely, kids in high school have, they do not shed their constitutional rights at the schoolhouse gate. But and but is huge here.

0:14:41 Thomas: Should Update that metaphor or whatever to be, they don't shed their constitutional rights at the schoolhouse metal detector, I think that would be more updated to the times.

0:15:25 Andrew: Yeah, right. Nevertheless, First Amendment rights of students are not automatically coextensive with the rights of adults in other settings. A school need not tolerate student speech that is inconsistent with its, quote, basic educational mission, end quote, even though the government could not censor similar speech outside the school. There was an earlier case called Bethel School District Number 403 versus Fraser from 1986, in which the Supreme Court upheld that a student could be disciplined for delivering a speech that was sexually explicit at an official school assembly. And the rationale from that case, projected forward into Kuhlmeier, was the school was entitled to, quote, quote, disassociate itself from the speech in a manner that would demonstrate to others that such vulgarity is, quote, wholly inconsistent with the fundamental values of public school education, end of quote. So that's kind of clear as mud.

0:16:24 Thomas: Yeah.

0:16:25 Andrew: What happened? The way in which the Hazelwood decision applied those legal principles to the case is to say the, but the question of whether the the school would allow a school newspaper with its imprimatur, right, you know, product of the Hazelwood Independent High School, right, that's different from the questionof you have free speech rights in the first place, because we are, quote, affirmatively promoting a particular kind of student speech. So, the former question, that is, Tinker, black armbands, addresses the educator's ability to silence a student's personal expression that happens to occur on the school premises.

0:17:11 Andrew: The latter concerns educator's authority over school-sponsored publications, theatrical productions, and other expressive activities that students, parents, and members of the public might reasonably perceive to bear the imprimatur of the school. Now, the case doesn't say this, but it's very, very critical. When you look at that line of analysis, right, it says, hey, Tinker is talking about your free rights inside the schoolhouse gate, It's right? A limitation on school power. Hazelwood versus Kuhlmeier says that schools have an interest even off the premises, right? During your theatrical productions, right? Your shows, if it's at, you know, a local community theater, right, that's still a school-sponsored publication, Other activities.

And the question is, does it reasonably, quote, bear the imprimatur of the school? And so the idea was here, school newspaper has the school's name on it. And so that the standard. Right. And again, I'm reading you, this is, you know, this like pearl clutching 1980s language, that the school must retain the authority to refuse to sponsor student speech that might reasonably be perceived to advocate drug or alcohol use, irresponsible sex, or otherwise conduct inconsistent with the shared values of a civilized social order, or associate the school with any position other than neutrality on matters of political controversy. So that's a pretty broad ranging standard.

0:17:51 Thomas: Right. Wow.

0:18:44 Andrew: And that's been the law for the past 32 years.

0:18:50 Thomas: Well.

0:18:50 Andrew: So at oral argument, what you saw was both wings of the court sort of expressing difficulty with the Third Circuit's idea that the dividing line is on school premises, off school premises. So the lawyer for the school district, for example, in responding to one of the questions, I believe from Justice Roberts, said that should apply off-campus, because off-campus speech can also cause disruption, right, particularly when it comes to social media. And her phrase that I took notes on were, time and geography are meaningless when it comes to the internet, right? And so, and you can think about that, right, like the whole idea of it being an imprimatur, that doesn't, it doesn't matter if you're on school campus for that or not. Right.

0:19:41 Thomas: But that sounds more like something when you talk about a school play or something, that's like, well, the school's name on it is on it, maybe. But if you're just a a student, does that mean you're bearing the school's imprimatur, if that's how you pronounce that word? Yeah.

0:19:50 Andrew: Yep. Right, right, right. And so let me cut ahead to the punchline of what I think the court is going to do, and then I'll explain why. The court is going heavily suggest, but not find, that saying, you know, F the Mahanoy Area High School school cheerleading team does not reasonably bear the imprimatur. On the other hand, right, what if she were wearing her cheerleading uniform, and right, what if it, you know, had the caption of, you you know, Mahanoy Area High School, you know, cheerleading, right? Like, there are certainly ways in which that conduct could be determined to, quote, bear the imprimatur, whether it occurs on campus or off campus. And so I think what they're going to do is reverse, remand back down to the trial court for findings as to whether the particular speech could fairly be attributed to the school or not.

0:20:53 Andrew: And the reason is everybody on the court who spoke up and asked questions seemed very, very skeptical of this division. Right. Like the conservatives definitely want to maintain this conservative line of, yeah, we want schools to be able to object to the way in which kids talk because, you know, they they represent the school.

0:21:12 Thomas: Because Damn kids and their music. Yeah yeah

0:21:15 Andrew: Yeah. The damn kids and their music. That's right. Like both John Roberts and Clarence Thomas asked questions that were essentially like, wait, you're saying the school has no interest in how its kids talk off off of campus on the liberal side. Justice Right. Kagan, in particular, along with Justice Sotomayor, asked questions about cyberbullying. Right, and Kagan. If you listen to they They didn't play this on the on the daily. But if you listen to the oral arguments said, what if boys at the school created a Web site to rank all the girls at the school by their sexual prowess?

0:21:33 Thomas: And then it later turns into the top social, uh, media network in the entire world, that question sorry

0:21:51 Andrew: Right. Justice Kagan said, look, like that's an area where if adults want to do that, right, you know, hot or not or whatever. Right. Like, yeah. Quote, we wouldn't put people in jail for it, but it seems like a school ought to be able to prevent like. Like, yeah, I

0:22:06 Thomas: Yeah Yeah. But even then, it's not it sounds like it doesn't have anything to do with the imprimatur of the school, does it? I mean, if nobody if it's an entirely anonymous student thing where there's no the school's name is not in it, but they are doing that kind of thing. I could see the school having a keen interest in stopping that disgusting disruption to the harassment of this of its students. But that wouldn't have any to do With the because it's like in the name of the School, would it?

0:22:36 Andrew: Totally agree. So I am not saying that I think there are five plus votes for Kagan's implied argument there. What I'm saying is that in trying to figure out where this court is going, the logical prerequisite to taking Kagan position is that there is no bright line on campus, off campus, right, that the school has an interest in off campus conduct, which is the only question You have to decide here in order to say that the Third Circuit got it wrong because the Third Circuit is explicit. Right. The Third Circuit says this did not occur on campus. Therefore, it is not a speech in which school the has any interest.

Therefore we are affirming the judgment of the district court. And so again, I think you're going to have this really, really interesting result where the court is directly overturning that Third Circuit opinion, sharply critical of it, but delivers it in such a way that seems like it is weighing in on behalf of BL, even though, right, what BL would like to have here more than anything is nothing, right? Right. Like B.O. would like to walk away and and just be done with this. And the Supreme Court, you know, for it for it to have not granted cert in the first place.

0:22:56 Thomas: OK. Hmm. Yeah. Yeah,

0:23:51 Andrew: So I'm super glad you found this. And this was a lot. This was really interesting kind of digging into the law behind it.

0:23:52 Thomas: Yeah. I would. Wouldn't you say the episode of The Daily gave it gave me the impression that like the justices didn't even want this case somehow? Like they granted it made me feel like from what he said, that they granted cert and then they're like, well, this sucks. Why did we do that? You know, didn't that feel like that?

0:24:12 Andrew: I think there was an undercurrent of that. And the answer to it, right, you should always ask yourself, like, well, they're not idiots. So so why would that be? And I think the answer is because there's this tension between they they clearly want. I think there were there were probably nine votes. Right. Unanimity for the proposition that the distinction between on and off campus is meaningless or at least is not legally dispositive of the outcome. Come. So they wanted to get rid of a bad opinion. But I think there was also broad sympathy for the party that prevailed below. And so you just wind up with this mismatch.

0:24:19 Thomas: Yeah. Yeah. Yeah.

0:24:48 Thomas: Gotcha. All right. Well, fascinating breakdown, uh, we'll touch more on that when the decision comes out, I'm sure. But, uh. We've got to get to our interview with Nick Fish.

0:24:49 Andrew: Yeah.

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0:28:12 Andrew: Episode 469, we covered President Biden's February 14th executive order. That order repealed the Trump-era EO 13831, which established the White House Faith and Opportunity Initiative that, you know, installed the Paula White and like rapture ready theorists, uh, uh, in the White House, um, so that was a good thing, but replaced it with, uh, by reinstating five, uh, George W. Bush era EOs and changing the name back to the White House Faith-Based and Community Initiatives Office. Um, so, you know, a lot of folks were kind of rightly skeptical about that. You and I are prominent, out, excited, uh, atheists, um.

0:28:56 Thomas: Famous atheist.

0:28:57 Andrew: Yeah, even Yeah.

0:28:57 Thomas: No, I guess I shouldn't.

0:28:58 Andrew: No, uh, I, I, I, wanted to to find out kind of what happened behind the scenes.

0:29:03 Thomas: Well, how could we possibly do that, Andrew? How could we know what happened behind the scenes?

0:29:08 Andrew: As it turns out, and for disclosure purposes so that you there's no nothing untoward here, I'm, I'm on the board of American Atheist, strong supporter of the organization, and, uh, our friend Nick Fish, the the president of American Atheists, actually went to the White House pursuant to the now reinstated White House Faith Based and Community Initiatives. And so I thought we'd get Nick on the line and find out how that went.

0:29:31 Thomas: Well, that's a great idea. Let's do it.

0:29:33 Nick: Yeah, I'm thrilled to be here with such distinguished atheist thought leaders as yourselves. That's, uh, we're gonna go with that, yeah.

0:29:37 Thomas: If you have A Podcast, You're allowed to call yourself a thought leader, it's just How it goes.

0:29:43 Nick: that'S the rules, yeah,

0:29:42 Andrew: Sorry. You Pass the the Bengay? Like my arm is hurting from patting Myself on the back here too much, so

0:29:44 Nick: Yeah absolutely, Sore, very sore. Uh, yeah, you know, I, I appreciate the opportunity to be here and to talk a little bit about this, and just, you know, to clarify, when, when Andrew says we went to the White House, we went to the White House's Zoom account, as you know.

0:30:03 Andrew: Hey, that's closer than I've been. Well, No, I mean geographically, I guess, I'm closer.

0:30:05 Nick: That I Was going to say Geographically. I think you are in fact closer, but yeah, we, it was a really, you know, great meeting, and we were really thrilled with the opportunity.

0:30:08 Thomas: Yeah. Yeah.

0:30:15 Andrew: So, so talk about, I mean, let's talk mechanistically, like You know, how how does that go about happening? Like who Reached out To whom, yeah.

0:30:19 Nick: Yeah. How Do You schedule A meeting, and who Do you talk To, right, yeah, we're fortunate enough at American Atheist to have really great partnerships with our, our friends and allies in the secular community at the Secular Coalition for America, Freedom From Religion Foundation, and American Humanist Association, and Center for Inquiry, all have dedicated full time staff in Washington, D.C., as do we, who spend at least some parts of their day advocating for our issues with different branches of the government. So, and we've, we've all kind of fit into this really collaborative niche where we all kind of take areas where we have expertise and are able to collaborate and complement each other rather than, you know, duplicating efforts, which is really great. But we all have full time, highly experienced, and really excellent lobbyists and or advocates who work on public policy in Washington.

0:30:23 Andrew: Yeah.

0:30:23 Thomas: Oh.

0:31:12 Nick: And so that group gets together and meets regularly, contacts with different agencies and have contacts with the Biden team. You know, one person who was really instrumental in this is Sarah Levin. Sarah used to be with the Secular Coalition for America, and I've known Sarah for the better part of a decade now, which is horrifying for me to say as someone in my mid-30s now. She is is actually the co-chair of the Democratic National Committee's Interfaith Council and by virtue of that knows and has worked with some of the folks who are staffing this office that was recreated or reconstituted through that executive order that you mentioned. I will say there's a fundamental difference between this office under, for example, the Bush, George W. Bush administration.

It was called the White House Office of Faith-Based Initiatives, period. Period. President Obama changed it to faith-based initiatives and neighborhood partnerships. President Trump ignored it, didn't really staff it, and did his own thing and appointed Paula White, as he said. And then President Biden recreated the office and appointed some really outstanding advocates to lead it. They're not pastors. They'RE not prosperity gospel ministers. The person who's leading the office, Melissa Rogers, is the executive director of that office. She previously worked with the Baptist Joint Committee, which is a really outstanding organization that fights for church-state separation from a religious perspective. That is something that's at the core of what they do. And she is a lawyer who understands that the Establishment Clause exists, which has a nice place

0:31:40 Thomas: Wow.

0:32:11 Andrew: Yeah.

0:32:50 Thomas: Does It though.

0:32:53 Nick: To be. And, yeah, well, it's increasingly rare, it seems, in certain circles. But she worked at that office with President Obama as well. Some of the other people who are in that office also worked on the Biden team's faith outreach, including the person who was directly responsible for engaging with Humanists for Biden, which was a group of humanists who got together to sort of advocate for the president's election during the campaign. I'm not a member of that. American Atheist is a 501c3. We don't endorse candidates. And I try to stay out of that as much as possible in my personal life as well. But, you know, very prominent members of our community, Hemant Mehta, the friendly atheist, was on that. Roy Speckhardt, who is the executive director of the American Humanist Association, but also the Center for Free Thought Equality.

0:32:53 Thomas: Which

0:33:42 Nick: And so there were a number of people within our community that took part in that. And so we had that connection. And it's important that we engage with these offices. I know this is something that, you know, is a thing that we need to adjust our expectations on and be comfortable with, is engaging in the, our hands dirty in the political process. And people are so horrified about the sausage making or the cattle trading or whatever slightly strained country metaphor we want to use here, see how policy is made. There's this idea that, well, we just have to make the best argument in court. We have to say exactly the right magic words. And I know that from listening to this podcast, I know that you guys are maybe more legal realists than some of us, where we know that it's not just a matter of saying the correct incantation to make the courts magically open for us and fix bad policy.

0:34:42 Nick: There are all these doctrines and rules in place that prevent us from righting wrongs that are implemented if we can't, for example, show standing, And something like the Paycheck Protection Program, money going directly to churches. How do we show standing on that? How do we shows harm after decades of the courts narrowing what's called taxpayer standing, where we say, hey, our tax dollars were misused, so we have standing? That basically, it almost doesn't exist anymore at the federal level.

0:34:52 Andrew: Yeah. Right, so So it, it sounds like, uh, if, if I could kind of summarize down, one advantage, sort of, even before we've talked about the substance of, of the matter, is now you have a direct phone line to somebody who, you has the ear of the White House, right? Right. And so, yeah, I mean, that that.

0:35:35 Nick: Yeah. And not just the ear. The great, great thing about, so when the president recreated this office, Melissa Rogers was given the title of Executive Director of the Office of Faith-Based and Neighborhood Partnerships. She was also given a seat on the White House Domestic Policy Council, which is really important because that's where sort of the coordination across the entire administration happens on what all the different departments are going to do to affect domestic policy. And that's a really important, important part, and that's led by former Ambassador Samantha Power, Susan Rice, I'm sorry, Susan Rice.

Samantha Power is, I think, USAID, but one of the former ambassadors is running that office, and it coordinates policy all across the government, and so it gives us an entry point on church-state separation issues to all of these different offices, so to the Department of Education, which is really important, to Health and Human Services, to the Small Business administration. All of these places where so much of the bad policy was happening under the Trump administration, we now have an entry point into not just the White House for symbolic things or executive action, but to this massive machinery that not many people know about that's called federal rulesmaking. That is where so many of all this happens.

0:35:56 Andrew: Yeah.

0:36:08 Andrew: No.

0:36:49 Andrew: Yeah,

0:36:49 Nick: It's not law. It'S not passed through Congress. ItS not even in executive order. It's this process that takes a long time, but has often the force of law. And we have to go, we have follow that process. And that's, that's a really big deal for us because it, it, It touches on so many areas of people's lives that they don't even think about that. They don't, they don' recognize until much later or until something has gone horribly wrong wrong, as is too often the case.

0:36:50 Andrew: Yeah.

0:37:17 Andrew: So let's let's talk about neighborhood partnerships. Right. That second half it if I can kind of reconstruct the argument and, you know, sort of straw bought the religious argument in 2000 went sort of something like this. Um, we have, uh, an increasing reliance, a lot of that due to Republican gutting of social programs. Uh, but, you know, allow me to editorialize on that. Uh. But we have an increasing reliance on social charity programs.

0:37:21 Nick: Mm hmm. Right. Yep.

0:37:48 Andrew: And the initial argument was, hey, look, we have churches and faith-based organizations that as part of their mission statement, as part of their overall group, they also deliver actual charitable services. Now, again, atheists have been, I think, on the front line in policing those kinds of organizations that, style you themselves themselves as charities and like, you know, head head over to, you know, war torn lands with, you know, boxes full of Bibles instead of boxes full food. But that that is not to say, right, you and I, you know, I mean, all of us have, you know, partnered with religious organizations that have, been willing to work with secular folks on social justice issues.

So, you know, I can I get that kind of initial argument of, hey, give Give us a seat at the table. Don't shut us out. If we want to also help in distributing food to the homeless, let us participate. It seems to me there are really sort of two problems. Right. As an atheist, when when I look at that from the outside looking in, like I think both of these were really well realized over the past two decades.

The first is seat at the table quickly expands to becoming the entire table. And the second is that as there's less and less oversight of the programs, you get more and more you have a kind of monolithic voice in the room. And it's like, well, you know, of course, every time we send, you know, apples to orphans in Ukraine, like they should have a Bible verse wrapped around them and that sort of thing.

0:38:30 Nick: Right, right.

0:39:22 Andrew: So And so when I think about it, I think, in addition to sort of making connections with the larger or political infrastructure, I think, OK, part of why I want American atheists in there is to reclaim the seat for secular charities at the table and say, hey, let's not forget our overarching mission and also be kind of policing those, you activities that turn into the opportunity for government sponsored proselytizing. Ahead. I said a lot. I'll let you jump in.

0:39:53 Nick: No, no, those Are those are all really important and correct points. I mean, the one of the core things that we walked in there as a coalition and said, like, what are some of the consensus asks, the things that we want out of this meeting that we're really concerned about? Number one is exactly what you you said about making sure that when the administration is reaching out to community groups on the ground to do things like increased vaccination uptake, which is a big thing right now, they're primarily focused on COVID response and making sure that underrepresented communities are getting access to vaccinations, because we know that, for example, people in the city of Newark right now is unfortunately like, and I'm in in New Jersey, the city of Newark is lagging behind the rest of the state in terms of vaccination uptake.

0:40:42 Nick: And how do we leverage groups that have infrastructure on the ground to help people get vaccinated is what a lot of these meetings have been about for the entirety of this administration. And so what we asked was, when you're thinking about these programs, we have this network of, you know, almost 300 chapters slash affiliated local groups all across the country.

We'd like them to be welcome for part of that as well to help get access to those resources, to make sure that their older folks or folks who are not able to get out of the house or whatever are able to get out there and get vaccinated, or that they can help staff and volunteer at these places that are doing things like that.

So that's point number one, is just making sure that you're not limiting yourself to, okay, who do we have that's like a hierarchical, easy call sheet to make? So we're only working with the Catholic Church, right? Like the Catholic Church is very hierarchical. You call one guy who calls a bunch of bishops, who calls a bunch a minister, a bunch priests who call their deacons and so on. We don't quite have that, but we do have really dedicated volunteers on the ground in all 50 states that do a lot lot of really good community work. And so how can we all work together to make sure that everybody in this country has access to vaccines and who is getting the call?

We want to make sure that secular people and atheist groups and community groups are part of those programs and to let them know that that network exists. And so that's already been a success. We've been added to all of these meetings and we send them out to our affiliates so they can participate. So that's an easy ask. That's great.

0:40:52 Andrew: Sure, sure. Yeah.

0:42:23 Andrew: I do want to dwell, I mean, I'm glad that, you know, it was an easy ask, and and I'm certainly, you know, happy that that that was the result from this administration, um, I mean, I we should not pause too lightly on on that, like, I think for a lot of folks you, the picture of of organized atheist groups is, you know, trying to get Under God taken off the money as opposed to you

0:42:44 Nick: Right.

0:42:46 Thomas: We should by the way but

0:42:47 Andrew: No no right yeah no I'm not throwing us under the bus on that, right, but but to point out, like, oh hey, no, we're we're out there on the front lines helping people get vaccinated because right we we believe in science we don't have, you know, contrary organizing beliefs to the detriment of society anyway please go go on a point two

0:42:48 Thomas: Yeah yeah we

0:42:59 Nick: Yeah. Yeah, yeah. Yeah I mean people people that mobilize to bottle and create and homebrew hand sanitizer, I mean, that was a big project that a number of our groups did and donated thousands and thousands of, you know, bottles of hand sanitizer to their local community, because they had the wherewithal to do that, masks and so the on amount of time that people spend on the things like you said, you know, taking In God We Trust off the money or, you know, removing a Ten Commandment monument is much smaller at the local level than doing things like running a soup kitchen or feeding someone who's experiencing homelessness or anything like that. So that was point number one, is just, hey, we have this network, you should utilize it because, you know, a quarter to a third of Americans are non-religious and like a half don't attend church. So, you know, let's make sure that those people are being spoken to as well.

0:43:06 Andrew: Yeah

0:43:55 Nick: So that was number one. The other one or the other point is specific policy asks, things that sort of underpin a lot of the worst impulses of the Trump administration and government memos, and, you know, things that are this, just make your eyes glaze over if you're a casual observer of all of this, but that underpin so many of the legal opinions from the Department of Justice's Office of Legal Counsel, memos that, you know, say why or how all of these executive agencies have to treat these cases that come down over the years, like, you you know, Trinity, Trinity Lutheran that are just wrong in our opinion. And so, what we walked in there and said is, Hey, you know, there's a bunch of these memos and sort of detritus that's like built up over years. We should really clear this out and, and, you have the person who's running the department of justice is, you know, civil division.

0:44:35 Andrew: It

0:44:35 Thomas: Don't know anything about that Yeah.

0:44:50 Thomas: Some of it's in the Supreme Court, by the way, the detritus. Can we clear that out? Can we hose that bad

0:44:54 Nick: Yeah, there'S a little bit, there' a little bit there, some rather large dust bunnies that have have accumulated. But that's the thing, is that it's not just in the courts. It's in the executive branches, in the Executive Branch as well, that these memos just sit and they burrow in everywhere and they get referenced. And so all of these rules are based on faulty premises and bad foundations. And so we need to clear that out and actually have good analysis and get that fixed. And that's not something that anybody campaigns on, but it's the sort of thing that really strong, knowledgeable eligible advocates can ask for and can point to within the federal government, because they have finite amount of time and they've got, hundreds and hundreds of groups clamoring for attention. And so if we can point them directly to the spot and

0:44:55 Thomas: Boy down? Yeah. I

0:45:39 Andrew: Yeah.

0:45:39 Nick: You know, pardon the expression, chapter and verse of exactly what the problem is, and here's how to fix it. If we do the work for them, it's great because they look at it and go, you know what? We agree with you. Thank you for doing all this work. This is great. We'll We'll get this rolling. You know, that's that's an easy thing to do if you're in the position of finding agreement. And, you know, the good thing is if you look at like demographics and who, electing who elected this administration, it's hard to come away with the answer of anything other than the continued rise of the nonreligious and the continued sort of religious sorting of the political parties in the United States had a profound effect on Joe Biden getting elected president.

0:46:20 Nick: And So you need to answer to that constituency. And there's a difference between the president's own personal religious beliefs and his rhetoric, which we also said, hey, make sure you try to be more inclusive there, please. But deliver the goods. Our community turned out and voted. And it's unquestionable that the margin in some of these states that were really close has entirely to do with, you know, the rise of the non-religious vote, um, So we're here, hi.

0:46:19 Andrew: That Yeah.

0:46:49 Andrew: I Yeah, it

0:46:51 Nick: Fix your stuff.

0:46:52 Andrew: Is there a particular Policy ask that you felt like you made, uh, some some good headway with, um, I

0:46:53 Nick: Yeah. Um, you don't to, I don't want to give um the impression that there was like, yep, we will do x, y, or z, but things that they weren't aware of or that, um, They knew about already, um, so those are are kind of the two categories, right? Where we say something and they kind of nod and you go, okay, that's already been on their radar. Great. You know, some of this stuff is something as simple as, you know, there's this memo at the Department of Justice called the World Vision Memo, which basically said, spoke to what you were mentioning at the top here about faith-based social services and who they can hire.

They're allowed to preference people of their own religion. There's this case now in the Supreme Court that we were waiting on as we recorded this this morning, before we recorded this this morning, in Fulton, which I know you've talked about at length, Where the question now becomes, can you not renew a contract if they refuse to abide by the terms of the contract simply because Jesus? And so we walked in and said, we have really profound concerns about continued reliance on these types of social services if they're not going to serve everybody. I said that in my statement after the meeting.

I'm to continue saying that, that the federal government at some point, and depending on how Fulton comes out, this might be even more urgent, needs to get out of the business of supporting faith groups at all or supporting third-party grantees to provide these services and just needs to provide it themselves because the government can't discriminate. If the Supreme Court says these private entities have a right to discriminate, then we need to stop funding them, period.

0:47:07 Andrew: Uh-huh. Yeah.

0:48:30 Nick: And because we have an interest in making sure that everyone has access to social services, then the government just needs to provide them, um,

0:48:37 Thomas: Mean, isn't the Supreme court going to prevent the government from discriminating against private agencies

0:48:42 Nick: If they just say, sorry, We No, Longer have grants, we don't do these grants anymore, then presumably that would be, that's easier than just saying we don't provide faith-based grants, right? Like, that there's a difference there, um, but we've got to do something if the, if the Supreme Court says, you know, if you provide grants, you have to provide the grant to to religious groups that don't fulfill the terms of the grant, which Is what We're getting at right now.

0:48:43 Thomas: That can discriminate?

0:49:04 Andrew: Yep.

0:49:04 Nick: And so you, that was one of the things we conveyed. We also certainly, um, emphasized, um, appointing judges, um, to, who understand, as I sort of joked about earlier, that the establishment clause does exist, um, making church state separation, um, a litmus test in some respects for qualified federal judges, that they need to understand that that is, that's in the Constitution, and and at making sure that we're appointing judges that will rule that way, um, and then finally, you know, we're, uh, there are all these open positions in government, um, you know, when you come in as a new administration, you have something like five or six thousand positions, I think, that you need to fill, um,

0:49:02 Thomas: Yeah, well, is that in normal

0:49:43 Nick: Know,

0:49:43 Thomas: Times? I mean in Trump times, he didn't fill, right? Didn't he leave so much stuff? Yeah yeah.

0:49:45 Nick: You He didn't Fill Them. Right. Yeah, Exactly. But they're there. Things ranging from, you know, a political appointees at the State Department, an ambassador at large for religious freedom, commissioners on the U.S. Commission on International Religious Freedom, general counsel at some of these at all these agencies, look to civil rights organizations like American Atheists, like Americans United for Separation of Church and State, like FFRF. You know, and consider candidates that have a strong track record of working as advocates for these types of civil rights issues and get them in government. You know, those are things that we can pass along and say that these are what we think should be priorities. And it shows the sophistication, by the way, of walking in and saying, like, here are the really nitty gritty things that we think would make a big difference in people's lives, because that's what this is about.

0:50:39 Nick: That's what This Office is supposed to be about, is how to translate the administration's policy goals and agenda into getting it into people's hands as fast as possible with people that they trust on the ground. So the fact is half of Americans do go to church at least somewhat regularly. And so half of Americans trust their pastor or trust their church. And so if the administration can get some level of buy-in on things like vaccination campaigns, that makes a huge difference in people's lives.

And that's not an unconstitutional, terrible use of that office that makes our skin crawl. That's the appropriate kind of use of this office. You know, there is are people who came away and said, after we announced that we'd had this meeting, who said, well, until In God We Trust is off the money, Or until Joe Biden doesn't say God bless our troops at the end of a speech, um, I won't be happy. It's like, like, I understand that that's grating or annoying, um, but people are dying right now because faith-based social services providers refuse to provide them with services, or because hospitals can discriminate on the basis of religion and can refuse treatment, um, if it, if it runs against their religious doctrine, um, that's something I'm really concerned about, um, and I'm going to dedicate, you know, a larger percentage of my time in our, our organization's time to fighting back on because it literally has to do with people's lives.

0:51:59 Nick: These other things are a problem and we're going to keep fighting about them, but let's deal with the stuff that's on fire right now first.

0:52:08 Nick: And we have an opportunity to do that.

0:52:08 Andrew: There's A lot there's A lot Of that Yeah. No. The the two points that I would sort of draw out of that, that the first, again, I don't want to pass over very lightly, is when you voluntarily withdraw from the process, you don't provide the mechanism to check back even well-intentioned mistaken assumptions, right? So you gave a fantastic one here and you gave both sides of it, right, which is if you have a room and there's an atheist on the panel and somebody says, hey, where should the vaccination site be?

And you say, and somebody say, oh, it should be at St. Mary's of the Holy Sepulchre over here. You know, it's a it's a pillar of the community. Everybody will nod and say, OK, yeah, great. And you need somebody in the room to say, you do know about half of your community doesn't go to church. Right. And and not in a way that that that is, you know, there's something wrong with the, you know, the good people at St. Mary's who want to. To hand out vaccinations, but just in a way of saying, let's make sure we're also including everyone else.

0:52:44 Nick: Yep.

0:53:16 Nick: Yeah. Include the people who go to The community center to play basketball rather than the people who go to the church to play basketball, you know, like, those Are different groups.

0:53:17 Andrew: Yeah. If you don't have atheists on that panel, then, yeah, that's exactly right.

0:53:26 Thomas: Yeah.

0:53:25 Nick: Nobody brings It up, yeah. Yeah. The last thing I want to add is uh, that um, one of the things they ask about is, well, do you have, and this is the the case with any government agency, is do you have data to back this up? Like, how big is this problem that you're telling us exists? And until two years ago, the answer to that was no, we didn't. We didn't really have data on the type of discrimination that non-religious people experienced. Thankfully, we invested in our secular survey, which I know I think you guys talked about as well, which is great. And we had 35,000 people participate in, which was, was unbelievable. And we did gather data on how widespread discrimination is against members of our community, particularly in highly religious communities across the country, where the assumption is that you're religious. And so people experience discrimination in things like education, in employment, in social services, in healthcare, even in things like community service or government service.

0:53:27 Andrew: Right.

0:54:21 Nick: So jury duty. People would experience, experience, you know, discrimination at jury duty. And that's unacceptable. And we have the data behind it now to say, yes, in fact, a third of people experience this type of discrimination and people in religious communities were four times as likely to experience this type of discrimination. And if they have unsupportive parents, they were four times more likely to screen positive for indications of depression. And here's why all that matters in an educational context, you know, so we have all this really great data that we were able to present to them and follow up and say, as a matter of fact, we do have this data, which is great. And that shows that the White House is serious about looking at the facts and not just sort of going by the gut and saying, we're you going to follow the data on this.

0:55:07 Nick: And the data indicate that this type of discrimination causes really severe harms to millions of Americans. And so we're gonna do something about it.

0:55:14 Andrew: Well said.

0:55:15 Thomas: Well, this was fantastic. Just as a closing note, I would say people always say I sound like Norm MacDonald. Nick, I think you can pull off Vince Vaughn. Have you ever gotten that?

0:55:22 Andrew: Oh,

0:55:23 Nick: Have actually gotten that, which is really

0:55:23 Thomas: Yeah. So we can start our new podcast, Vince Vaughton and Norm Macdonald react to the day's news. Yeah.

0:55:29 Nick: Yeah, I like it Yeah, weird

0:55:27 Andrew: Talking, talking cats with Vince Vaughn and Norm MacDonald.

0:55:35 Thomas: Yeah.

0:55:35 Nick: Cats and children I think that would be good

0:55:39 Thomas: Uh,

0:55:39 Andrew: All right, well, Nick, we really Appreciate it, thanks for making time to come on the show and to and to let us know a little bit about what's going on behind the scenes.

0:55:40 Thomas: Absolutely.

0:55:47 Nick: Yeah, thanks guys, good to talk to you

0:55:49 Thomas: Hey, if people want to support American atheists, what should they do?

0:55:52 Nick: They should go to atheist.org slash donate, and they should become a member. We rely entirely on the support of members. We are an organization that does a lot with not a lot of money. We certainly don't have the budget of Alliance Defending Freedom. So if you have like $20 million laying around and want to help us get to that level, I'm not going to say no.

0:56:10 Nick: But $35, 20 bucks, whatever you want to do to support our work, become a monthly supporter like you are a patron to this great podcast. You should maybe consider doing the same thing with us. Three bucks a month is great.

0:56:23 Thomas: All Thanks so much, Nick. And, uh, yeah, I, I second that emotion. Uh. People should definitely support American Atheists.

0:56:29 Nick: All right, thanks, guys.

0:56:31 Andrew: Yeah.

0:56:33 Thomas: This episode is brought to you by HelloFresh, folks. If you don't know HelloFresh yet, where have you been? You clearly haven't been listening to me sing its praises because I love HelloFresh. With HelloFresh, you get fresh pre-measured ingredients and mouth-watering seasonal recipes delivered right to your door. I'm going to level with you. Left to my own devices, I can't do the whole cooking meal planning thing. It's too hard. It's just, it's another extra, well, it' several extra things. It's planning out the week in advance. It's then going to the grocery store, getting the exact things you need and the quantities you need, it's too hard for me to do it myself. I'll be honest. I get overwhelmed mentally. I get too much to do. I forget, and I don't have food for a week. That's no good. Use HelloFresh. They cut out that stressful meal planning and the grocery store trips so you can enjoy cooking and get dinner on the table in about 30 minutes or less, which is real key when you have a couple banshee kids crying at you.

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1:01:52 Thomas: Vaxton relax over here, baby, does Jack Black know you have his Pick of Destiny strict screwing me, still motive so dumb, John Brown did nothing wrong, my call, Evie Huntington, Harvard alum, no hood. Maybe if we call that place Dakota Territory again, they will stop sending people to D.C. Running my first marathon June 6th, wish me luck. I mean, good luck, and that's great for you, but I ran a 5K, and it just, that's enough running, any running is too much running. Nuzzly, Fuzzly Torsten Piel of the Satanic Temple, I'm not even a tortfeasor and I'm kicking your ass. Angry Mac Face, support your local Peruvian restaurant. Penelope is glad Sydney got sanctioned for terpsichore. The Books That Burn podcast, reviewing fictional depictions of trauma since 2019.

1:02:37 Thomas: This is not the greatest patron name in the world. No, this is just a tribute. Crimer, no criming. Not that Chris Wallace. Not that Mike Hall. Not that Prince of Propecia. My name is Harvey. Oh, Wayne, anyone who ever lost at poker knows better than to try bluffing a Texas bankruptcy judge. Ritz of Mandamus in the Ritz Cellar. Cool glass of motion and lemonade waiting for you on the porch. Torch. Murray Gregerson brought dessert, de jure, impeached tort, and subpoena coladas to this ex parte. I want to say something to the American people. I will say it again. I did not take legal advice from that podcast, Opening Arguments. We'll change this patron name when our newborn lets us sleep. Simple country, hyper chicken. And your turn, Andrew. Nice. Good job. Put your boss on on a performance.

1:03:26 Thomas: Yeah, No, that was good. Put your boss on a performance improvement plan. Pass the PRO Act. Jake, so my future DJ name can be McDonald, as long, MC Donald, as long as I don't sell burgers, which I love that plan. Crazy Corgi, Seattle Pete, plug whatever, whatever you guys want here, I don't listen anyway. Patreon benefits rule. Another Minneapolis, waiting for our live show in Minneapolis. Guardian, Guardian's ad litem of the galaxy. Christopher Brown, Philly live show 2022, I'll bring the scotch and cheesesteaks, who's bringing gritty? And now witness the fabulousness of this fully vaccinated and operational French lesbian. Wow, congrats. And your turn, Andrew, for

1:03:24 Andrew: Actually, got ready there,

1:04:04 Thomas: Real.

1:04:04 Andrew: All Right, so thank you to Lawful Copter, says Andrew and Thomas, from the bottom of my heart, thank you for everything you guys do. To a podcast that pairs a man racing a quarter and a real-life lawyer, to MediCom 7 OA live show in Sydney, Australia, please, I won't be vaccinated till October at the earliest, thanks government. Uh, to Andrew Sidles, but is adjacent to the tape team, to OTTBE Odin, takes the bark exam. Robert M. Lou, to the tune of Camptown Races, New York Times v. B. Sullivan, do da, do da. To R.B. Trey and Capricious with puns that don't work when read aloud.

Oh, I think that worked okay. To Surprised, episode 487, had no discussion of the real buried bodies case. I want to hear Andrew's analysis and Thomas's likely outrage. Dinosaur National Monument live show. By the way, I don't know what the real buried bodies case is, so I'll Check it out. Dinosaur National Monument live show, was that South Dakota? Anyway, Ian Hamilton, Stephen Balticate Sandoval is my favorite patron name, Sakashite Fukasumi is a close second, Polly Hernandez. Christ, seven years of college down the drain. Really? Oh, that's bad. Tamalee Rainbow Spence to the best

1:04:28 Thomas: Yeah, I guess we should check it out, huh?

1:05:19 Thomas: Don't

1:05:19 Andrew: Cardboard Crack dealer in the Maritimes, TheDeckBoxHalifax.com. Jason Kopas, hot spears owed to a small lump of filibuster I found in my armpit one midsummer morning. Latin isn't a dead language, it's still roaming around. Good dad joke there. This profile name is hilarious in the context of some other podcast. I get sad, too, when courts continue to prove Andrew's whole profession is just made up. Well, you know, not always. Nate Shrek, Starth Mandy Pants, remember the Tulsa Race Massacre? Take burger restaurant naming advice from a podcast. There's also a brief trial of Cobra Commander In the G.I. Joe movie Lamb Double Feature With Transformers Give to ModestNeeds.org Hamilton faces an endless uphill climb Climb, climb Jennifer Kratch, not that Chris Wallace I'll gladly pay you Tuesday for a new Supreme Court today Laughing my ass off Because Thomas knows more about the law Than a coin

1:05:20 Thomas: Oh, I Trump

1:06:10 Andrew: Does CivilPoliticsRadio.com Fridays at 7pm Eastern on Valley Free Radio John Bilderbeck, my friend's cousin Mixed coke with pop rocks and he died Stephen Balticate Sandoval What comes first, Breyer retires, Trump indicted, or filibuster weakened? Yeah, Breyers retires Philip Kizer Oh, could be Andrea the Arbitrarian Capricious COVID showed me I am the kind of guy that wants a little prick Dude, the only reason we survived the last four years is that Trump was girt by idiots Absiod Painstrumpet, sorry for making you use the last one so long, it was dumb anyway. Alfred Wallace Jonathan Lord Kinbote, way to go, Thomas has porked that streak like a karaoke legend. R.I.P. my friend Harry Mosley, survived cancer twice only to be shot by some punk. Mylamine song wishes all Stephen Briars a happy retire. Now join your labor union, together we bargain, alone we beg. All skybreakers are bastards. Eat the light eyes. Harsh lives matter. Spork, that's with a q u e, so you know, Canadian.

Because of you, Piat, and and Cog Dis, I left the LDS Church and the Republican Party. Well, welcome aboard. I dreamed Andrew came to C2E2 and spent the whole con doing panel talks on Transformers Law. Time to stop sleeping with earbuds in.

1:06:27 Thomas: Indicted, I think that, just

1:07:25 Andrew: No, you should continue. And, you know, I don't know what C2 E2 is, but I'm happy to do panel talks on transformers. Well.

1:07:31 Thomas: Makes me think chess, like a chess move, like c2d anyway yeah, a rook, I guess it would have to be

1:07:34 Andrew: Yeah. It's written that way. Yeah. So upon right now or upon doing the initial two moves out of it.

1:07:38 Thomas: No, because you're, if you're on the two, then you're staying, you can't move side to side, that's a rook or something, our queen,

1:07:42 Andrew: No. No. Oh, yeah, you're right. Yep. Yep, false anonymous word origins, that are your source for word and phrase origins. My witty names aren't original, and my original names aren't witty. Nerd Gnostic, R.I.P. Notorious R.B.G. 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 donít pray, but when I do, itís for evangelicals to get vaccinated.

Big Easy Blasphemy, it's kind of nice having a competent federal government again, courtesy of Summit Shuffleboard.com, a string of unpronounceable characters, Ronda the Dork.com, if Opening Arguments is joining the MSOU network, does that make Alice and Andrews possible? First off, Thomas is my boss, so, uh, that's, that's the most important thing. 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. We'll talk. Just because you have imposter syndrome doesn't mean you're not an imposter. Adam Costa, adopt a homeless pet in pose declawing an ear docking.

Jay Aldenwalk, date jury belly at Packy's at last baby. Heather L., Matthew Vernon, Jeremiah's fancy microwave emporium. Ian and Allie, he's not even a coin and he's kicking your ass. Danny Rosari, Eli Bosnick, David in Brooklyn, Teresa Gomez, Sam Donnell, Mitchell, error on On air, on Aaron, true story, Trumpers think the Arizona ballots were fed to chickens and the chickens were incinerated. That is true. I agree with that 100%. Natasha Crunchwrap wants you to support the Justice Policy Institute, Sam Buck, and, of course, our all-time great, alone at the top, Conrad Michaels.

1:08:42 Thomas: Thank

1:09:18 Clip: Oh, no associate of this firm has ever failed the bar exam. No kidding.

1:09:24 Thomas: And now it's time for T3BE answer time. Oh, man, what happened here? The coin and I agreed. That means I definitely am ahead of the coin still. But how did we do?

1:09:36 Andrew: Yeah, so this was about a protester arrested in federal court, alleged that the 1983 action that the arresting officer violated his federal civil rights. And, you know, in the kind of thing that happens, happens only in bar exam questions. The judge instructed the jury that the plaintiff's burden of proof was clear and convincing evidence rather than the correct civil burden of preponderance of the evidence. The jury thus returned a verdict for the defendant and the court entered judgment. What's the remedy to the plaintive, to the protester here? And you went immediately to A, seek a new trial because the jury instruction affected the protesters' substantial rights. And I'm the, key distinction between all the answers that I just want to make clear, because I don't think I don'T if it was part of your deliberation. I want to ask is the remedy so A and B was that the plaintiff should seek a new trial.

1:10:31 Andrew: Right. C and D was seek judgment on their in their favor as a matter of law. Right? Right. So the idea is right for best option, if you had if it was equally, you know, legally valid to either seek a new trial or get judgment in your favor, you'd prefer judgment in your favor. Right.

1:10:30 Thomas: Seek new trial, right? Yeah, yeah, yeah.

1:10:50 Andrew: Like, yeah.

1:10:49 Thomas: Well, hold on. Okay, so maybe this will be why I get this wrong. When I see best option, I'm looking at, like, the most likely to succeed. But is that not the right way to look at it?

1:10:58 Andrew: No, no, no. No. That that that is right.

1:11:01 Thomas: Because I would feel like it would be easier to get the relief of a new trial, like a do-over, you know, mistrial type thing, rather than like, well, just, you know, decide my favor, like overrule the jury verdict.

1:11:01 Andrew: So best option.

1:11:14 Andrew: Yep.

1:11:14 Thomas: Like, I feel like that would be a harder thing to get.

1:11:14 Andrew: Yep, so. So you are correct. What I meant was all things being equal. Right? The just wanted make to that clear. Now, to any further anxiety, I will tell you, you and the coin got it absolutely correctly. A is correct, The answer right? Is seek a new trial because the jury instruction affected the protesters' substantial rights. Here's the best way to, and this is one of these that you can figure out, through nothing but common sense. And the best best way to think about it is, right, preponderance of the evidence is 51-49, right? It's 50.1% to 49.9, right. It's ever so slightly more in your favor you win in a civil trial and wherever the burden is a preponderence of the evidenced. Clear and convincing, right is about a 70 or a a 75, right? Whereas proof beyond a reasonable doubt is a 90 to a 95. So if you think about that mathematically, when the jury is improperly instructed as to the burden, and then they come back with a defense verdict, what we don't know is, did they think the plaintiff proved

1:11:19 Thomas: Okay. Yeah, sure. Oh, okay, good.

1:12:21 Thomas: Yeah.

1:12:21 Andrew: 5% or or 55 percent or 68 percent. Right. Like we know it was less than 70, but we don't know how much less. Right? So it's possible you get a new trial and the jury is like, yeah, no, not only was it not, you know, preponderance of the evidence or was it not clearly convincing of it, like this sucks, like the plaintiff's case is terrible here. You Know, because all the question says is is that eyewitnesses gave conflicting testimony.

1:12:23 Thomas: Right, right, right. Good point.

1:12:48 Thomas: Conflicting, yeah.

1:12:50 Andrew: But the reason we have juries is because juries are empowered to adjudicate between your witnesses, right? And to say, oh, yeah, had two different eyew witnesses. Eyewitness one says A happened. Eyew witness two said not A happened, one of them got it wrong. Who do we think got it right?

1:13:07 Thomas: So if I were to criticize the coin and I, maybe it should have been between A and B and I shouldn't have even entertained the notion of C and D. I don't know.

1:13:09 Andrew: Accountable.

1:13:16 Thomas: But I didn't really like any B, C and E. I just had a hard time picking those because maybe I'm just so good at the bar.

1:13:16 Andrew: I like the idea. I think it stood out, right, that A was correct. You settled in on it immediately. The verdict was not against the clear weight of the evidence. That is, A, that would be a JNOV standard anyway, right? All we know from the evidence is that it's conflicting testimony that the jury could go either way. So, you know, B was obviously wrong. C said the jury did not have legally sufficient evidence to find for that. Again, we don't know that. Right.

1:13:25 Thomas: This was an easy one. Yeah. Right.

1:13:52 Andrew: So D may be the best, the second best answer. But all the all the other answers were bad. I think you did great. I think the coin did great, so congrats to both of you.

1:13:57 Thomas: Yep. All right. Well, good for the coin. You know, I felt bad for how bad the coin's been doing. Why don't we find out which listener of ours won unlimited fame and fortune? Fame and fortune not guaranteed this week.

1:14:11 Andrew: All right, Thomas, this week's winner is Nick Jordan on Twitter, who writes, T3BE is A, the other answers are way more confident in the facts than the jury ever was. If I'm wrong, I want to move for a bad coin thingy. Lots of goodness packed into that answer, and you got it correct, and he caught on to the key aspect, which is confidence in the fact versus getting a directed verdict versus just getting a new trial. So congratulations, Nick Jordan, on being this week's winner. Everyone, give him a follow. That is at N-J-O-R-D-A-N-79. And congratulations, nick, on being this weeks winner.

1:14:50 Thomas: You so much for listening that's our show we'll see you very soon either

1:14:55 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.

1:15:29 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.