OA503: Finally! Consequences for Rudy Giuliani

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 503. I'm Thomas. That's my esteemed co-host, Harvard Law alum Andrew Torrez. How are doing, sir?

0:01:29 Andrew: You know, until you reminded me, I went to the same school as Ted Cruz. I was fantastic, and now I'm whatever that one spot below that is.

0:01:31 Thomas: I know. Topic for another day. At what point is Harvard Law alums more of an insult? Apologies. Yeah, with how bad some of these alums have been in the news.

0:01:42 Andrew: Yeah. Alan Dershowitz, protege. Yeah, like it's, yeah. Yep.

0:01:51 Thomas: Sorry, man. I feel for you.

0:01:52 Andrew: Yep, yep. It's not great.

0:01:54 Thomas: Yeah, I feel for you, but

0:01:54 Andrew: It is not great, no. So how are you doing?

0:01:57 Thomas: Anyway, you're one of the good ones here. I'm, I'm doing well. I am excited.

0:02:01 Andrew: I'm your token Harvard Harvard Law School friend that's good

0:02:04 Thomas: Some of my best friends are Harvard law alums. They're not all awful, terrible people like Ted Cruz. Uh, but any, uh, won't somebody think of the Harvard Harvard Law grads, Andrew. Anyway, I'm excited for this episode. We've got some fun Rudy Giuliani news. A modicum of consequences. I can't believe it. Can't wait to get to it. I don't know. You have a little note before we get going about the Christian health chair ministries.

0:02:16 Andrew: Yes we do, yep Uh, that was our episode 497. We've addressed uh, I think all the criticisms and, you know, stand by our original reporting. It's a scam. Uh, Michael Chupa wrote in with some more evidence. Remember that the, that these health share ministries require you to arbitrate your claims. And we talked about how one of the largest requires you to, to refer any disputes to the Institute for Christian Conciliation, which is a scam, fake arbitration services. And by the way, I did not mention it in that episode that that abbreviates to ICC. ICC, that's how they refer to themselves. The real ICC is the International Chamber of Commerce, which has real Arbitration services, actually publishes their rules.

The Institute for Christian Conciliation, they, they've claimed that their rules are protected intellectual property that they've trademarked. So I, you know, a place that doesn't publish the rules they will use to arbitrate disputes is a scam. Um, real ICC has former judges working for it. Anyway, Michael Chupa, uh, typed in the address for the Institute for Christian Conciliation into Google Maps. Um, this picture, I'll include if you get, if you're at our newsletter, three dollar and up patrons, and you get a copy of my show notes. Um, I cut and pasted the picture into the show notes, 306-N West El Norte, Norte Parkway, Suite 29 in Escondido, California, 92026.

0:03:19 Thomas: Wow.

0:04:05 Andrew: Well, that turns out to be a UPS store next to a nail salon. So, yeah, the entirety of the Institute for Christian Coalition is a mail drop next to a nail salon. So scam. It's a fake arbitration scam. They don't Really have a place that you can arbitrate at. They don't have judges, just, they don't publish their, this is, stay away. So, so thanks Mike

0:04:22 Thomas: Wow, geez. How's is that, how's that okay? Just because the cultural blindness of thinking like if it's a Christian thing, then it's fine. Is that the...

0:04:32 Andrew: Um I did I they All I know is they have fewer resources for resolving disputes than I do, right? Because I at least have an office and have access to a big conference room that I could put like 15 people in. Um, and so, unless you, you want to hang out outside the UPS store, maybe get your nails done. I'll, uh, you know, Saul Goodman, uh, I don't know, but uh, they, they cannot help you. They will not help you. This is not a real arbitration group. Anybody who requires you to submit your claims there is taking your money and leaving you with no real recourse. Don't do it, man.

0:05:13 Thomas: Agreed. All right, let's get to a tiny, tiny modicum of consequences.

0:05:15 Andrew: Oh,

0:05:18 Clip: So you did ask Ukraine to look into Joe Biden? Of course I did! You just said you didn't!

0:05:23 Thomas: So, Andrew, guy who, medical doctor who doesn't know anything about medicine and killed dozens of his patients has his medical license suspended is about how I, I feel this is. Now, when I saw suspended, I was worried. Is this like when an officer gets suspended for murdering a Black man and then is back two weeks later? I hope it's not like that. What happened with Rudy Giuliani?

0:05:46 Andrew: It is not. And, and a big thank you to Ace Associate Morgan Stringer, who brought this to my attention like literally 20 minutes before we were about to record. This is huge. It is a thing I have literally never seen before. And again, I have advised on attorney grievance cases. So this is an order, as we are recording the show Thursday, June 24th, that grants interim relief to the Attorney Grievance Commission, which I want you to think about as applying a similar standard as a preliminary injunction. OK, so usually what happens is. So, for example, we had our listeners referred to the Florida bar, the series of complaints about Matt Gates. Right. What happens is the Florida bar then tweeted back at us and said, OK, OK, OK, OK, Opening Arguments, like we we got it. We have opened an investigation into Matt Gates. Well, you know what's going to happen. And then they decided not to move forward with a referral.

0:06:25 Thomas: Boy, that decision doesn't look great in retrospect.

0:06:51 Andrew: It does not look great. So, yeah, get get with it, Florida Bar. But even In meritorius cases, you still get when you are under investigation for an attorney grievance commission, right, for violating the ethics codes. You're still allowed to practice law pending the outcome of that decision. Right.

0:07:05 Thomas: Sure. Makes sense.

0:07:12 Andrew: This is being called interim relief and suspending his license. But let's put that into context. What this means is the Attorney Grievance Commission has said, while you're investigating and figuring out what to do with Rudy Giuliani, he must be suspended from the practice of law in order to protect the public. Right? So in other words, we want injunctive. We want relief now and 5-O decision.

0:07:35 Thomas: Wow. I've got a structured settlement and I want relief now.

0:07:43 Andrew: Yeah, exactly. 5-O decision by the New York appellate courts applying those two standards. Right. So again, kind of like when you have when you get injunutive relief, you know, right, the two main issues that come up are irreparable harm to the party seeking the injunction and likelihood of success on the merits. The standards for granting interim relief are, number one, there must be uncontroverted claims of attorney misconduct. Right. That is no defense to things that are clearly violative of the the model rules of professional conduct. And you must pose, quote, an immediate threat to the public. So that's what was found in suspending Giuliani's license. I am as confident of anything in the law that in the same way that when you lose on injunctive relief. Right. It means, you know, it's not it doesn't adjudicate at that point in time that you're going to lose on the merits. But it is the judge who will rule on your case on the merits going, I think there's a substantial likelihood that you're going to lose on the merit.

0:07:49 Thomas: Yikes. Mm-hmm. Wow.

0:08:49 Andrew: Right. So it's a really, really strong indicator. I think Giuliani will be disbarred.

0:08:55 Thomas: Yeah, this is talk about likelihood of success on the merits, you know, like this sounds like he's so obviously a disaster that they're like, "We got to quarantine this guy from even doing any law stuff." Yep.

0:09:08 Andrew: It, So if anything, right, this order says it even more strongly than you just said. Quote, "For the reasons that follow, we conclude that there was uncontroverted evidence that respondent Rudy Giuliani communicated demonstrably false and misleading statements to courts, lawmakers and the public at large in his capacity as a lawyer for former President Donald J. Trump and the Trump campaign in connection with Trump's failed effort at reelection in 2020. These false statements were made to improperly bolster respondent's narrative that due to widespread voter fraud, victory in the 2020 United States presidential election was stolen from his client. We conclude that respondent's conduct immediately threatens the public interest and warrants interim suspension from the practice of law pending further proceedings before the Attorney Grievance Committee." So are the things that Rudy Giuliani has uncontrovertedly done?

0:10:00 Andrew: Right. So there are three specific rules that the Attorney Grievance Commission has said we think there's uncontroverted evidence that you violated. Rule 3.3, which says a lawyer shall not knowingly make a false statement of fact or law to a tribunal, Rule 4.1, which says in the course of representing a client a lawyer shall not knowingly make a false statement of fact or law to a third person, and Rule 8.4, which says a lawyer or law firm shall not engage in conduct involving dishonesty, fraud, deceit or misrepresentation or engage in any other conduct that adversely reflects on the lawyer's fitness as a lawyer. So, look, not lying in public is the thing that we think is so important for lawyers to do. We put it in the rules three times, right? And the AGC has said, and that's the thing that Rudy Giuliani does on a daily basis.

0:10:50 Andrew: And I wanna point out that they use the highest possible standards of what counts as lying, Right. Under the rules of professional conduct, the prohibition against false statements is broad and includes misleading statements as well as affirmatively false statements. But misleading statements or omissions that are the equivalent of affirmative false statements must have been done with scienter. Right. That is knowingly intentional. Right. Right. So it's not just, oh, I said something that happened to be false, but I knew that it was false or I, I strongly should have known that it was false before I said it.

So hilariously, and by the way, Giuliani's son, Andrew Giuliani was, in fact, provided a copy of the complaint. He was allowed to respond to the complaint, he provided an extensive affidavit, but of course, being Rudy Giuliani, he Rudy Giulianied his affidavit in opposition. So this is from pages eight to nine. It's footnote four. And I'm just going to read this because this is, again, it's just chef's kiss level of perfect. In opposition to this motion, respondent Rudy Giuliani refers to affidavits he has not provided. He also relies on a confidential informant in paragraph 82. We do not understand, nor does Respondent explain why, as a private attorney seemingly unconnected to law enforcement,

0:12:18 Andrew: He would have access to a, quote, confidential informants that we cannot also have access too. Courts like to know that, right?

0:12:26 Thomas: What a terrible lawyer.

0:12:28 Andrew: Oh, at yet another point, Respondant claims he relies on a Trump attorney who chooses not to be identified, that's paragraph 43. Respondent also refers to hundreds of witnesses, experts, and investigative reports, none of which have been provided or identified, and an Excel spreadsheet also not provided, purportedly listing the names of thousands of deceased voters who allegedly cast ballots in Michigan. That's paragraph 51.

0:12:51 Thomas: You couldn't even make a fake spreadsheet. Spreadsheet. I could make you a fake spreadsheet. They couldn't even provide the here's I've got the list of names of dead voters. Just generate a bunch of names. You can't do that. You get to the minimum amount of work for your fraud. Come on. Well, expect we should expect more out of our total liars and frauds.

0:12:53 Andrew: It Yeah. I, Thomas's second Thomas His second chance fraud law firm. Now, so Giuliani also admitted that he made all of the statements that are the subject of, uh, the AGC referral. So, yeah, that's that's. He, he, he gave two defenses. Right. The first is they're unconstitutional, quote, "as applied to him," end of quote. I'm not making this up. The constitutionality argument is a free speech defense that is just plausible under existing Supreme Court precedent. Right. As as the agency points out, or sorry, as the court order points out, it is long recognized that speech by an attorney is subject to greater regulation than speech by others. That is Gentile versus State Bar of Nevada, 501 U.S. 1030 from 1991. Unlike laypersons, an attorney is a professional trained in the art of persuasion. As officers of the court, attorneys are an intimate and trusted and essential part of the machinery of justice. In other words, they are perceived by the public to be in a position of knowledge and therefore a crucial source of information and opinion.

0:13:18 Thomas: Case closed. Oh,

0:14:10 Andrew: So, yeah, the idea that you can't refer me for disciplinary proceedings for saying stuff that is otherwise protected by the Constitution is just nonsense. And any lawyer who's not disciplined by New York would know that that's a nonsense argument. He also said, well, I didn't know these statements were false at the time, which, again, is a valid defense. And so the court needed to evaluate and said, in order to find a violation, the AGC is required to satisfy a knowing standard. Knowingness is expressly defined in the Rules of Professional Conduct as denotes actual knowledge of the fact in question. A person's knowledge may be inferred from circumstances. Thus, the element of knowingness must be considered in connection with each particular claim of misconduct.

0:14:57 Andrew: Then there is 19 pages in which the court says, and here's how Rudy Giuliani has knowingly lied over and over again, including lying after this complaint was filed and after he received knowledge of it. Right. So.

0:15:09 Thomas: Man. I got a question. Business business question. Sorry. Can Can I turn that into a book and sell it? Is that who owns the copyright of, or whatever of that? Oh man. Yeah.

0:15:29 Andrew: In what areas has the appellate court in New York determined that Rudy Giuliani has uncontrovertibly lied? There are at least five broad areas, right? So first, he lied about absentee ballots in Pennsylvania. Respondent repeatedly stated that in the Commonwealth of Pennsylvania, more absentees ballots came in during the election than were sent out before the election. The factual, quote, proof he claimed supported his conclusion was that although Pennsylvania sent out only 1,823,148 absentee ballots, 2,589,242 ballots were counted in the election. This factual statement regarding the number of ballots mailed out before the election was simply untrue. The true facts are that 3.08 million absentees ballots were mailed, which more than accounted for the over 2.5 million mail-in ballots that were actually tallied.

0:16:21 Andrew: Respondent does not deny that his factual statement was untrue, His defense is that he did not make the misstatement knowingly. He claims that he relied on some unidentified member of his, quote, team who, quote inadvertently took the information from a Pennsylvania Web site, which had the information was mistakenly listed. There is no proof to support this explanation. There is No affidavit from the supposed team member, which is not identified by name or otherwise, nor is there any copy of the Web page that purportedly listed the allegedly incorrect data. So that's bad. That's just literally. And it's part of I know we've lost Uncle Frank on this episode, but is literally the moment you start to dig beneath the surface, you see just making things up, just lying with impunity and putting the number as. Because, yeah, no, but I mean that that the other side, right, is engaged in just making up facts saying, oh, yeah. Well, three point oh eight million ballots. Well, we're going to call that one million eight hundred twenty three thousand one hundred and forty eight. Where do we get that number? We just made it up. And nope.

0:17:10 Thomas: After several years of that, the bar won't let you be a lawyer anymore, I guess is the lesson. Yeah, yeah.

0:17:28 Thomas: Didn't even make a fake spreadsheet to back it up. I'm insulted.

0:17:31 Andrew: B, he lied about the nature of the claim he filed in the Bookvar case in Pennsylvania that we covered on the show extensively, offensively, repeatedly said that it had a fraud claim, told the judge that it had a fraud claim, and then admitted, okay, well, we didn't actually plead fraud. It was an equal protection claim. You can't do that, right? You can say in public, we're suing the state of Pennsylvania for fraud, and then when a judge says, but are you? Go, well no, not as such, right, like that's a violation of the rules of professional ethics. Lied at the Four Seasons, right? Your background during our Q&As at Four Seisons Total Landscaping, lied about claims that 30,000 dead people voted in Pennsylvania, including bizarrely claiming that Smokin' Joe Frazier, the former boxer, was a dead Pennsylvania resident who voted in 2020, and Joe Frazier's voter registration was canceled in 2012, and there was no proof that any dead people voted in Pennsylvania.

0:18:09 Thomas: Yeah yeah.

0:18:35 Thomas: You know, I want to do a, I can't wait for the like five years on, you know, where are they now for four seasons total landscaping? I just want to catch up with the business. Like, well, you got a lot of bags of dirt out here still. You know, that was a weird time back in 2020 when that happened, but what can you do?

0:18:53 Andrew: I would 100 book for Four Seasons Total Landscaping for an OA live show.

0:19:00 Thomas: I would book them if I had any landscaping stuff I needed just to ask, you You know, like, oh, yeah, I got to do my backyard here. Side note, what the F?

0:19:02 Andrew: Yeah, of course. What the F? I agree. Repeatedly lied, going back to Giuliani, about the Georgia election results and I mean lied about number of felons, number of dead people. The weirdest one is he claimed one hundred and sixty five thousand underage voters voted in Georgia. Actual number as certified by the Georgia Board of Elections is zero. Um, turns out that four kids who were under 18 did request a ballot. Uh, no, all four of them turned 18 by the time, by the time the election happened. Right.

0:19:33 Thomas: Oh, and they swung the election away from Trump, those four kids. No. But

0:19:47 Andrew: So, right. That, but that entitles you to vote, right?

0:19:47 Thomas: Did they turn 18 evilly or anything? Illegally? Yeah.

0:19:52 Andrew: Like you can request a ballot at 17 if you're going to be 18 by the time of the election. I know because that's how Alex was eligible to vote. He and requested the ballot when he was 17, voted when he was 18. Lied about the Arizona election results. And as this points out, this is just the stuff that's uncontroverted. The complaint notes that there was much, much more that has been alleged against Giuliani to which he has not yet responded. So OK, so Giuliani is lying, knows that he's lying. Why is he a threat to the public? Here I have to read this, is Giuliani's affidavit in defense of himself. "Respondent, Giuliani argues that there is no immediate threat of future harm because he has and will continue to exercise personal discipline to forbear from discussing these matters in public anymore." He also claims that because legal matters following the 2020 election have concluded, he will no longer be making any statements about the election under the authority of being an attorney.

0:20:45 Andrew: That's page 27 of the order. And the appellate court was like, first, you're still lying about it right now. And they cite to his podcast. Oh, by the way, they cite one of the things that isn't. I can't believe I almost omitted this. One of the items that the New York appellate court cites as undisputed proof, uncontroverted proof that Rudy Giuliani is lying is the podcast we reviewed on Lawed Awful Movies. Right. Rudy Giuliani's podcast in which he was talking about the surveillance footage that supposedly shows people like stealing ballots. If you recall us breaking that down on a lot of awful movies and and the court was like, yeah, no, you're you're just lying.

0:21:30 Andrew: You're just making that stuff up anyway. So he's still lying about it. And by the way, there's still like cyber ninjas challenging this in Arizona. So don't tell us that like this isn't an ongoing harm. This is an ongoing harm because you're still lying about it. This, by the way, five-O, five appellate judges. So I feel really, really confident that Rudy Giuliani is going to be disbarred.

0:21:56 Thomas: Oh my gosh. Wow. Wow. I can I make a podcast that is just reading that whole like a miniseries Rudy Giuliani's Smackdown by the Bar Association? Like, it's so delightful.

0:22:06 Andrew: I I think we could we could milk this into cereal if we wanted to. Right. Like it would just

0:22:15 Thomas: I just mean, like, legally speaking, am I infringing on anybody's?

0:22:18 Andrew: Oh, no, this is a public.

0:22:19 Thomas: I just read it. Oh, that's great. That might be my new like, you know, like go to sleep to it. I'll read it in a calm voice, you know? Just describe all the ways Rudy Giuliani lied. That's one option. Maybe we can do different versions of this. It's just so delightful.

0:22:19 Andrew: Yeah. Public document. Yeah, absolutely. Let's do it.

0:22:34 Thomas: Finally, consequences.

0:22:34 Andrew: My my new.

0:22:36 Thomas: Some level of consequences for one of these people. Like it's overdue and it's like I'm dying of thirst and there's a little bit of a, you know, sprinkling of water. Just a little, just a littlebit, a littlebittlemoisture.

0:22:40 Andrew: Yeah it. Yep. But look, like this represents a sea change. I mean, as you know, I've I've been telling you since we started doing the show five years ago, right, that attorneys get disbarred for mismanaging client funds. Um, and we're seeing the legal profession uh looking at this left, right, and center and going, "Yeah, I don't want us to be the profession of Lynn Wood and Sydney Powell and Rudy Giuliani," right? And so let's clean a house, and I'm glad to see that. So, little bit of consequences. And And delightful, delightful ruling.

0:23:26 Clip: Down the law, down the law.

0:23:30 Thomas: And now it's time for Eminent Romaine, uh eminent domain part two, oh never

0:23:35 Andrew: Yes, I could not have come at a more appropriate time of

0:23:38 Thomas: Gonna give you up, never gonna let you down, never gonna, oh, sorry, no, I, that was me saving from having to do the physical work of editing that in again, just pretend I did yeah say goodbye. I love that song if you watch that video he's a little kid, it's the weirdest thing, he looks, it's a little kid in a grown-up, it's two kids on their each other in a trench coat, singing a song with a deep baritone voice it's the weirdest, it's the weirdest thing, anyway, sorry, not that's not the time and place I apologize

0:23:43 Andrew: Putting in an actual Rick roll. Yeah. No, turns out incredibly prescient. I do. Yeah.

0:24:08 Andrew: Yep. Yep. Yep. Oh, no, no. We could if you want to convert this show on the fly to a Rick Astley podcast, I am down. OK, no, turns out we could not have been more prescient in having episode 500 finally cover eminent domain, because just last week the Supreme Court released a very, very important Eminent Domain case, Cedar Point Nursery versus Hassid. So I want to, I'm going to ask you a question, Thomas. We see this is not a bar exam question, but we'll see if can get it right. Recalling that the big takeaway from Episode 500 was the difference between a regulatory and a physical taking. Right. I characterize something as a regulatory taking, that gives you as the property owner very little protection, and only applies if the regulation goes too far.

If I characterize it as a physical taking, it gives you a ridiculous amount of protection. Right. It's less about, in fact, that that we also learned that physical takings were often less about compensating the propertyowner and more about constraining the power of government with, you know, this absolutist view of property rights. We talked about the decision Loretto versus Teleprompter Manhattan CATV, right? 1982, in which New York tried to protect the rights of renters to install cable. And the Supreme Court said, yeah, but these cable boxes, right, they're permanently affixed to the wall. It's only four inches by four inches, by four inches. But like, that's now, you know, 1.02 cubic feet of your property that you don't have anymore. So that's a physical taking. So don't don't answer yet.

0:24:23 Thomas: Mm-hmm Okay. Okay.

0:25:46 Thomas: So.

0:25:47 Andrew: I'll give you a little bit more background. Thomas, if tell you this is a standard 6-3 conservative liberal alignment, which it is, let's see if you can guess how this particular decision comes out. OK, it involves something that the right wing of this court and the rightwing in general hates, which is unionizing. So, yeah. So let's talk about it. The California Agricultural Labor Relations Act of 1975 gives agricultural employees the right to self-organization. Right. And it makes it an unfair labor practice for employers to interfere with that. Right? Right.

0:26:24 Thomas: The right hates that, got it, okay.

0:26:25 Andrew: OK. Yeah, Of course. And so of the ways in which, like, giant agricultural farms would interfere with that right, that the necessitated some rulemaking, is they would say, OK, union reps can't come on to the premises." So California State Agricultural Labor Relations Board promulgated

0:26:42 Thomas: Oh man I already feel like I know where this is going, yeah.

0:26:47 Andrew: A regulation that regulation. You might notice I'm saying the word regulation a lot. This is a hint said that the self-organization rights of employees include, quote, "the right of access by union organizers to the premises of an agricultural employer for the purpose of meeting and talking with employees and soliciting their support." And the last time we talked about union organizing in the Walmart case, right, we talked about how, in order to qualify under an NLRB, you've got to get a certain number of signatures. And then, if you get a certainly number of signatures, you can trigger an election, and then it's majority rules. And then, if you win the election, then that becomes, you become the collective bargaining unit for that group of employees. So, in order get the signatures, yet to be able to come onto the property. So, when can you come onto the property? Here's what the existing regulation says.

0:26:52 Thomas: Yeah. Sorry.

0:27:39 Andrew: That a labor organization may take access for up to four 30-day periods in one calendar year. They have to serve notice on the National Labor Relations Board. They Have serve a copy to the employer. And here's when they can show up. OK, they get two organizers per work crew, plus one additional organizer for every 15 workers over 30 that are in the crew. OK, so based on the number of people that are there. So every 15 workers over that gets you to be 45. You get three. You have 60. You give four and so on. Right? Right. So that, you know, you can actually talk to to to people. You may then enter the property for up to one hour before work, one hour during lunch and one hour after work. And then the regulation says you may not engage in disruptive conduct.

0:28:27 Andrew: You may not be there trying to talk to people during working hours, but are otherwise free to talk and meet with the employees. Right. An hour beforehand, an hour after and during lunch. When they're not working. So with that right of access, right? Chaining them up, hiring a security guard, hiring guys with clubs, all of those, you know, which really happened to beat the crap out of union organizers. That's an unfair labor practice.

0:28:54 Thomas: You would think, yeah.

0:28:55 Andrew: So, I just want to summarize. So, this regulation requiring you, if you run a huge agricultural farm, to let labor organizers temporarily come onto the property and talk to your employees either before or after working, or either before after working hours or during lunch, and which regulates prohibits you from disrupting the business, do you think this regulation was held to be a regulatory taking or a physical taking? Now, but but but first, I got one more thing that I got to tell you about.

0:29:21 Thomas: Yeah. Uh-huh. There's a small cable box on the property that

0:29:22 Andrew: OK, yeah, the let's talk about that. That case, Loretto.

0:29:26 Thomas: Have to set their lunch box on the property as they come onto it, maybe.

0:29:32 Andrew: No, that case, Loretto went out of its way to explain that. Look, we get it, we know that those cable boxes were totally small, all but the reason that that was a physical taking was because they were permanently installed on the property, right? So here's what the Supreme Court said in that Loretto case, cable box case, in 1982, quote, "The permanence and absolute exclusivity of a physical occupation stands in contrast to the temporary limitations on a right to exclude. Not every physical invasion is a taking." You know, and and a good example of that is when you come by to read the gas meter.

0:29:46 Thomas: Okay.

0:30:06 Thomas: Yeah, I was just going to say, I mean, does this even apply to like inspecting restaurants and stuff? I means, is that a physical taking?

0:30:06 Andrew: Right. So let's think about that. Those Right. Two things in mind, how do you think this Supreme Court characterized a temporary regulation of temporary regulated access to the property? Was that a regulatory taking? Probably OK. Or a physical taking? So definitely not.

0:30:20 Thomas: Mm-hmm. Uh-uh. Uh-ah.

0:30:33 Thomas: I see this rake right in front of me. Let me just step on that and say, well, that's clearly a regulatory taking, Andrew. That's an easy bar question. That's probably, I think the coin agrees with me too. That's obvious. I'm not even going to flip the coin.

0:30:38 Andrew: Yeah. Yeah. So quoting from page seven, the access regulation appropriates a right to invade the growers property and therefore constitutes a per se physical taking. The regulation grants union organizers the right to physically enter and occupy the grower's land for three hours a day, 120 days per year, rather than restraining the growers use of their own property. The regulation appropriates for the enjoyment of third parties, the owner's right to exclude.

0:31:00 Thomas: Oh, Wow. So I guess they got it wrong. They failed the bar exam. I'm going to say that the coin and I got that wrong. They failed. But they write the effing rules. So now we all failed because they're wrong. Is that how this works?

0:31:26 Andrew: Yes, and And, and by the way, uh, the majority is so cognizant that what they're writing is nonsense, right? And again, um, just If You're Yeah No It It, and again, let's be clear here, this is a John Roberts opinion, right? So, you know, all of that last week, like, "John Robert saves the the ACA," and what a centrist.

0:31:27 Thomas: Okay. Yeah they're not dumb they're just evil yeah yeah

0:31:49 Andrew: This is the work that is being done in plain view remains an activist right wing Supreme Court. Is John Roberts as bad as Samuel Alito? No. Right. Oh, nobody on Earth is as bad a Samuel Alita.

0:31:49 Thomas: Except

0:32:05 Andrew: Right? But, but Is, is John Roberts still a right wing activist out there to dismantle the power of unions? Yes, and And this disproves it, and section three of the opinion says, um, what about Thomas's question, right? Doesn't this seem to open the floodgates to any kind of regulation where you Have to Let people on Your Land, yeah No Yours Thomas Smith's Question.

0:32:05 Thomas: Clarence Thomas yeah oh you meant actually me not ClarenCE Thomas oh okay yeah it does get confusing sometimes when you're reading the Supreme Court stuff and you're like Thomas said I'm like did I what huh did I I didn't say say that, but this is something I actually said. Okay.

0:32:39 Andrew: This is Something you actually said, right? So the California Agricultural Labor Relations Board, seconded by the dissent, and again, 6-3, the dissent is just three liberal, the justices on the Supreme Court, warns that treating the access regulation as a per se physical taking will endanger a host of state and federal government activities involving entry onto to private property, because it would, unless you're going to say, okay, well, but now here's how I'm narrowing this opinion so it really can only be read as applying to unions, because Our endgame is making it impossible for unions to organize.

0:33:13 Thomas: Uh-huh. And we DGAF about rules or consistent principles in any of this stuff. Doesn't matter. You Know, it goes back to my argument for maybe I'm more on the critical legal theory side of this. Like, if this is how it works, you find just little, uh, one-off technical, technical ways to get these right-wing outcomes. Like, okay, I don't care about your little rules anymore, trying to radicalize You Andrew Is It working

0:33:24 Andrew: Exactly.

0:33:43 Andrew: Put a pin in, yeah, put a pin In that, put up in that. So argument is that government may require property owners to cede a right of access as a condition of receiving certain benefits without causing a taking. So a permit condition that serves the same legitimate police power purpose as a refusal to issue the permit should not be found to constitute a taking if the refusal to issue the permit would not constitute taking. So here's How he explains that. He says, under this framework, government health and safety inspection regimes will generally not constitute takings where the government conditions the grant of a benefit such as a permit, license, or regulation on allowing access for reasonable health and safety inspections. Both the nexus and the rough proportionality requirements of the constitutional conditions framework should not be difficult to satisfy. And then cites to a couple of laws, so basically it's like, yeah, I, I, we Get it, this, this opinion makes no sense and says that a regulation is not a regulatory taking, uh, but don't worry about it, uh, at least for now, we're not going, going to use that to invalidate ocean inspections

0:33:45 Thomas: Yeah Yeah Yeah I Know I like that they still Left the wind the door open though, I Was gonna ask you, at what are the three sane people on the court now, do they just, they should just come up with a form letter. That's just like, I can't believe I'm hearing this. Like, we're taking crazy pills. What, what, what's the point of this entire process? And then just, that's every dissent for this court.

0:34:48 Andrew: But Yeah Yeah, indeed, Briar's dissent is as I think Briar basically says that, right? Here's what Briar says. He says, does the regulation physically appropriate the employer's property? If so, there's no need to look further. The government must pay the employer's just compensation. And then there's a citation of authority. Or does the regulation simply regulate the employer's property rights? If so, then there is every need to look further, the government need pay the employer's just compensation only if the regulation goes too far. This court holds that the provisions access to organizers requirement amounts to a physical appropriation of property. In its view, virtually every government authorized invasion is an appropriation. But this regulation doesn't appropriate anything. It regulates the employer's right to exclude others.

0:35:55 Thomas: Yeah.

0:35:55 Andrew: I mean, I could keep going, but it really is just like it's it's the I'm envisioning the John Lovett says Michael Dukakis character after the presidential debate in on Saturday Night Live in 1988, where they had the great, you know, Dana Carvey, George Bush, like word salad. And then they cut over to Dukakis, who looks at John Lovitz, who looks up and goes, I can't believe I'm losing to this guy.

0:35:55 Thomas: I, yeah, I was going to go with them for the, uh, for the millennials. Uh, you know, it's, it'S a, it'Ts a Zoolander. They're all, they're all The same. Look, am I the only one who notices this? You know, that kind of reaction? Yeah.

0:36:24 Andrew: Yeah, yes, yeah, exactly right. So there you go. I think further proof of the fundamental point that we made in episode 500, which is if you are interested in social justice, if you're a critique of this court from the left, and you're still up in arms over Kelo versus City of New London, you're being misdirected. The real And harm is the way in which the activist extreme right is using radically inconsistent views to come up with the outcome that they want, which is to restrict the rights either of the government or of third parties that, in some way, burden on on private property. Cedar Point Nursery versus the seed. Terrible, terrible case.

0:37:20 Thomas: And I just, look, I know I say this a lot, but like this, is the kind of crap that we tried to warn everybody about in 2016, you know, and it got way worse than we even thought, you know. We were thinking like one Supreme Court justice, we were thinkin Merrick Garland, you know, like that was it, and it it got so much worse. And it's a reason why we cannot ever sit on our hands and stop participating, even though it's an unfair system, even though the odds are stacked against us. Structure of it is terribly unfair and prioritizes small red states and all that, all that. Yes, it's unfair. It's it's crap system. But we cannot afford to just give up because they are are rewriting the rules of everything. They, like, this is, this is now the law, and they just get to do this for decades unless we find some way to stop them.

0:38:12 Thomas: And the only way that I know of is to try to win enough elections to have a say in it. I don't know another way. If you think there's going to be a revolution or something, you know, I'm open to hearing your plans. I, I don'T see See how that's going to happen in a way that would do anything, personally.

0:38:29 Andrew: As always, I I I would say the same thing only longer and less eloquently. So I will just rest my case.

0:38:35 Thomas: You rest your case.

0:38:36 Andrew: Oh, wait, I thought that was just a figure of speech. Case closed.

0:38:39 Thomas: Case closed.

0:38:45 Andrew: Hey, you know what's delicious? Of course you do, because you listen to the show and you've heard me tell you how delicious Moink box bacon is. But I'm not kidding. Moink is truly the source of unbelievably good meats. Look, they deliver grass fed and grass finished beef, lamb, pastured pork, chicken, wild caught Alaskan salmon, all delivered direct to your door. They help family farms become financially independent outside of big agriculture. Their animals are raised to outdoors. Their fish swim wild in the ocean. And Moink meat is made free of antibiotics, hormones, sugar, and all the other junk you find in cheap prepackaged meat in the supermarket. So here's what I want you to do. Go to moinkbox.com slash OA and you'll get a year of bacon for free.

0:39:30 Andrew: And then you just pick what meats you want delivered with your first box. You can change what you get each month. You can cancel any time. I am not kidding. I a certain podcast friend of mine got me a year's worth of bacon uh as a Christmas present last year, all over the world, like some of the world's best bacon, and I'm not kidding, the Moink bacon is better than that. It's really, really, really good. So um, what else do I have to tell you from the copy here. Moink was founded by an eighth generation farmer who was featured on Shark Tank. I don't know what that is, uh, but the host of Shark Tank said it was the best bacon he's ever tasted. You've heard me say I agree with that. Jamie Simon off. That was the creator of the Ring video doorbell, invested in WinkBacon. I don't know why that's important, but that's in the copy. So, look, here's what you're going to do.

0:40:16 Andrew: You're going ahead on over to moinkbox.com/OA and listeners to the show will get free bacon for a year. One year of the best bacon you'll ever taste. So that is spelled M-O-I-N-K box dot com slash O-A. Get a year's worth of bacon. Sign on up. Cancel any time. You won't regret it.

0:40:44 Clip: Andrew Torrez is correct, the best kind of correct, Andrew Torrez, you were right, tell your sister, you are right.

0:41:00 Thomas: Time for a quick Andrew was right. I always love those.

0:41:04 Andrew: Me too.

0:41:04 Thomas: What were you right about?

0:41:06 Andrew: I was right about a case you insisted I cover, which I'm glad we did in episode 495. Mahanoy versus BL. This was the cheerleader social media. Yeah. You know, F cheerleading, F softball, F everything. Right. And one of the things I loved about doing that was that everybody in the media was covering this as a Tinker versus Des Moines, you that's the 1969 case of the Vietnam War protest, the students wearing the black armbands. Right. The question was, what free speech rights? And I said, yeah, everybody's looking at this the wrong way. This is what you need to understand is Hazelwood Independent School District versus Kuhlmeier. Right. That was the school in Pennsylvania that censored the school newspaper because, you know, they published edgy stories about teen pregnancy and divorce. Right. And I said, look, what's going to happen in this case is the Supreme Court is going to affirm the Third Circuit.

0:41:15 Thomas: Oh, right, yeah!

0:42:04 Andrew: Say that the school had no right to punish BL here, the cheerleader. But they were going to do it on entirely different grounds. The Third Circuit said stuff off campus doesn't count. And I said, look, you're going to have a broad coalition of justices that say, no, wait a minute. Like the school can care about what happens off campus. This is kind of ridiculous. And and it's going to amount to nothing more than like this really seems unfair to this teenage girl. Right. Well, I'm pleased to tell you that is exactly what happened. This is an 8-1 decision written by Stephen Breyer, joined by everybody except Clarence Thomas, of course.

0:42:44 Thomas: Who's the one? On? Oh, Wow, I

0:42:48 Andrew: I'm gonna get to the Thomas descent is just, uh, it is, it is yeah the mirror universe equivalent of the chef's kiss, right? Like it is just everything that could be. It's like eating a, you know, cow pie. Anyway, um, Breyer said, uh, "Unlike the Third Circuit, we do not believe that the special characteristics that give schools additional license to regulate student speech always disappear when speech takes place off campus." So, what I said, right? The school has an interest, even if you're not on campus. And how much Breyer says candidly, well, we don't know yet. Right, that we've just kind of started tackling this question. So, quote, we are uncertain as to the length or content of any such list of appropriate exceptions. We hesitate to determine precisely which of many school-related off-campus activities belong on such a list, nor do we know how such a list might vary depending on the student's age, the nature of the activity, or the impact on the school itself. Thus, we do not now set forth a broad, highly general First Amendment rule stating just what counts as off-compass speech.

So what do they do? They mention three kind of guiding principles. And again, you know, it's just you see Stephen Breyer as a yes, a member of the court's liberal wing, but just as a as a non crazy person. Right. Kind of writing on a court that's gone crazy

0:42:52 Thomas: Can't wait to hear it Sure Yeah Yeah

0:44:10 Andrew: Like this is what court decisions used to look like.

0:44:13 Thomas: I know, this is delightful. Like, brief old-timey window into when anything made sense. We're like, "Hey, we're gonna decide a thing." Uh, I believe this is the kind of thing you would call a narrow ruling, right? Where you're just like, "Well, we're not making all the rules for you. Uh, we don't know that, but in this case, here's what we think. And And maybe here's some principles going forward. See you next case."

0:44:13 Andrew: Right. Yeah, yes, exactly right. Right.

0:44:35 Andrew: Exactly. And saying, look, the Third Circuit got it wrong. The Third Circuit said schools lose their rights of caring about the content of speech when it's not on campus. That's obviously wrong. But how do we protect students' rights of free expression? Well, think about these three things. First, a school will rarely stand in loco parentis. In loco, parentis means standing in for the parents. So, in other words, the justification is sometimes the school is serving as your mom and dad, like when they have physical custody over you. This rule was used to uphold corporal punishment in schools in the 19th century because, of course, it was. But look, there's also, you know, legitimate grounds there that Ed Breyer says fair, but rare. Right. Geographically speaking, off-campus speech will normally fall within the zone of parental rather than school related responsibility.

0:44:42 Thomas: Yeah.

0:45:31 Andrew: OK, so that's their first point. Second point. And I really love this is really smart. He says, second, off campus speech plus on campus speech includes the full 24 hour day. I'm quoting directly from the opinion, right? That means courts must be more skeptical of a school's efforts to regulate off-campus speech, for doing so may mean that the student cannot engage in that kind of speech at all. When it comes to political or religious speech that occurs outside school, the school will always have a heavy burden to justify intervention. Intervention. So that's kind of the second prompt. Third, the school has an interest in protecting a student's unpopular expression, especially when that takes place off campus. America's public schools are the nurseries of democracy. Our representative democracy only works if we protect the marketplace of ideas. You and I have gone back and forth on the marketplace of ideas, and we know how this unpopular impression is going to get construed by the the right wing court in the future. Right. It will be, well, nothing is more unpopular than, you know, brave

0:45:46 Thomas: Yeah.

0:46:05 Thomas: Makes perfect sense. Yeah.

0:46:35 Thomas: Yeah.

0:46:36 Andrew: Fundamentalist Christians standing up to, you know, to discriminate against LGBTQ folks. We know that's coming. But nevertheless, right, the, like the principle I think is, is, is correct in the abstract, that like the more unpopular, actually unpopular, the thing the student is saying, the more you would want the Constitution to protect that, right? Because that's the kind of, nobody, nobody restricts the popular speech. Right. It is the unpopular speech that gets restricted. Then, you know, Breyer, as befits somebody who's 207 years old, applies those three principles to the, you know, rant on social media and is like, yeah, you know, this is not doing much to advance the marketplace of ideas, but sometimes we have to, you know, protect uh the, the banal and the obscene in order to protect what we really want to get at, and this just does not rise to the level of, of having, of a school having a protected interest in ensuring decency and, you know, not uh having, having vulgarity, right?

0:46:37 Thomas: Racism. Yeah.

0:47:33 Andrew: Like that's how he sort of characterizes the school's interest, which, you know, I think is right. There's So that. Like I said, 8-1, there is an Alito concurrence, which illustrates his completely bonkers libertarian philosophy. I have to read this paragraph to you because in a question about what high school students can say, he manages to reframe it as a question about the power of government, which is something that only somebody who has a poster of Ayn Rand above their bed could possibly do. Right.

This is bonkers. He says, suppose that B.L. had been enrolled in a private school and did exactly what she did in this case. OK, now, if you're not a crazy person, every single one of us listening knows exactly what is supposed to follow that sentence. Right. Which is those private schools would expel her. Right. That's that's that that's what that's the only thing you care about here. That's the person who is the plaintiff who got to. You are not Samuel Alito because Samuel Alido is a crazy man. Crazy Suppose that B.L. had been enrolled in a private school and did exactly what she did in this case. Send out vulgar and derogatory messages that focused on her school's cheerleading squad. The Commonwealth of Pennsylvania would have had no legal basis to punish her and almost certainly would not have even tried. So why should her status as a public school student give the Commonwealth any greater authority to publish, to punish, her speech? Yeah, right. The entire,

0:48:23 Thomas: Yeah.

0:48:59 Andrew: Of course.

0:48:58 Thomas: That doesn't even logically make his point. Am I? What? Did I hear that wrong? It's possible I heard something wrong.

0:49:05 Andrew: No, you heard that correctly. His entire concurrence is about understanding this as an exercise in state power and not as, you a question about whether a teenage girl can express herself on Snapchat. It's just, as I said, it is if you hate yourself and love reading Alito concurrences, read the concurrence in Mahanoy because it will give you a frightening look into the psyche of Sam Alito. You know, but we have not gotten to one.

0:49:22 Thomas: Huh? Yeah.

0:49:43 Andrew: Clarence Thomas, it gets, in my view, it gets better for us because here's why. Clarence Thomas's bananas in pajamas dissent, right? Unreadably, laughably hysterical dissent is a faithful application of originalism to this question. And it illustrates that there is no such thing as a principled originalist on the Supreme Court. It is just that in this case, the other five conservative justices are like, right, but come on, I don't mean that that should apply against the, you know, 14 year old girl on Snapchat. Clarence Thomas is 100 percent correct. I'm going to read to you from his dissent.

0:49:43 Thomas: So it gets worse? Okay.

0:50:26 Andrew: And I have been hit about the head with a shovel sufficiently that you think originalism makes sense. He says, quote, "Cheerleading coach responded to the rant on Snapchat by disciplining B.L. This court overrides that decision without even mentioning the 150 years of history supporting... A more searching review reveals that schools historically"

0:50:30 Thomas: Okay. Mm-hmm. Sure.

0:50:48 Thomas: Sorry, all right, can I pause you there? The 150 years of history supporting the coach? Um, how old is Snapchat? I think it's... it's only... it's, I think it couldn't be more than a hundred years old, it's probably in the 100 to 120 range. Yeah, as if this is not a different, at least slightly different, thing Than whatever's been going on for 150 years. Am I... am I wrong, sorry?

0:50:52 Andrew: Could Discipline

0:51:17 Thomas: I'll unpause you, apologies. Huh?

0:51:24 Andrew: "Students in circumstances like those presented here. Because the majority does not attempt to explain why we should not apply this historical rule and does not attempt to tether its approach to anything stable, I respectfully dissent. I would begin the assessment of the scope of free speech rights incorporated against the states by looking as to what ordinary citizens at the time of the 14th Amendment's ratification would have understood the right to encompass." And here he is citing to the McDonald versus Chicago decision.

That's the one One that incorporated the Second Amendment out to the states, you know, after D.C. versus Heller. Right. So D.C. versus Heller only applied to D.C. because federal law. McDonald versus Chicago then said, "Oh, yeah, by the way, that also applies to all the states." So the idea that you were saying the case that we want to think of as setting the landscape is Antonin Scalia's. Yes, the Second Amendment is now capable of being used to overturn gun control laws across the country. Anyway, I just thought that was hilarious. Thomas goes on to say, cases and treatises from that era reveal that public schools retained substantial authority to discipline students. This is correct. He does not, fortunately, cite to any of the corporal punishment cases of the 19th century, because I think even Clarence Thomas would find that gross.

Instead, he cites to a case, Lander versus Seever. Okay, this Lander versus Seever is an 1859 case from Vermont, which says, "Although schools had less authority after a student returned home, it was well settled that they could still discipline students for off-campus speech or conduct that had a proximate tendency to harm the school environment." Again, that's the Coolmeyer case, right? "Perhaps the most familiar example applying this rule is the case" this is the Lander versus Seever case "where a student, after returning home from school, used a disrespectful language against" A teacher. He called the teacher old in the presence of the teacher and some of his fellow pupils, and was then expelled from school for Calling the teacher All the Supreme

0:52:35 Thomas: Okay.

0:53:29 Thomas: Moly Well How old was the teacher, yeah?

0:53:33 Andrew: Court in 1859 is like, "Yeah, of course, right, that makes total sense that any normal human being would go, yeah, you know what? Schools used to do a lot of stuff in 1859" that we would no longer let them do. And one of them is saying, man, you don't Thomas Smith, what an old man I have teaching my class. Like, kids are stupid. Kids think 35-year-olds are old. Are you kidding me?

0:53:45 Thomas: Yeah Well Yeah, back In The day we would have prioritized the hurt feelings of a teacher over a kid's entire future. Like, that's, you know, maybe we shouldn't have been doing that

0:54:13 Andrew: And look, it is correct, right? Right. So Clarence Thomas says this rule was widespread. It was. It was consistent with the universal custom in New England. It was again because it's 1859. Various cases, treatises and school manuals endorsed it. Right. And then, you it says the Law of Public Schools treatise says, "Whatsoever has a direct and immediate tendency to injure the school in its important interests or to subvert the authority of those in charge of it is properly a subject for regulation and discipline, and this is so wherever the acts may be committed."

0:54:19 Thomas: Yeah So Let me see if I have this right. He's like, originalism, right, guys? Like, anybody, like, we should, you know, schools can just beat kids and whatever, like, right, right, originalism, huh, anybody, yeah

0:54:58 Andrew: Yeah, and everybody else was like, "X and I," on the originalism Way

0:55:02 Thomas: They're Like, we like to be more Selective, and Only choose the Times where it makes us look good to do originalism And then other times we just abandon it, yeah

0:55:04 Andrew: Clarence Yeah Yeah If, if this is six-three, the Supreme Court hates teenage girls on chap, on Snapchat, then that's going to make us look bad, so no, we're not going to do that. That is literally what this opinion comes down to. And Clarence Thomas is like, "All right, but I'm going to point out you guys have no clothes." And Thomas ends part one with the discipline here, a one year suspension from the team may strike some as disproportionate, but it does not matter for our purposes. And again, he's 100 percent correct. State Courts have policed school disciplinary decisions for reasonableness, and disproportionate discipline may be challenged by parents in the the political process.

But the majority and the parties provide no textual or historical evidence to suggest that federal courts generally can police the proportionality of school disciplinary decisions in the name of the First Amendment. He is 100 percent correct with respect to what he's talking about in terms of history. So if you believe that the school's ability to punish is coextensive with what people thought when the 14th Amendment was passed, then you have to side with Clarence Thomas on that, that. Who is the logical consequence of having that as a philosophy, and I found it delightful.

0:55:27 Thomas: Uh-huh Maybe Uh, you shouldn't have that as a philosophy.

0:56:31 Andrew: Maybe

0:56:32 Clip: And thank you, Let's go!

0:56:34 Thomas: Now it's time to thank our hall of famers our all-time greats at patreon.com/law and I believe it's your your turn first, Andrew.

0:56:41 Andrew: All right. Thank you to kellywoveit.com. I make stuff on a loom with my hands. Come buy it. Check that out. Comedian and Aaron Trahan, a.k.a. Game Jumper X. Now that Thomas has two small children, it is perfect time for an episode on train law because trains are great. That thing in the attic, thanks to Stock Market Report, helium was up, feathers were down, paper was stationary, and pencils lost a few points.

0:57:09 Andrew: That's four dad jokes in one. That's really good. Kelly and David's wedding will be bomb. Yeah, well, congrats, Kelly and Dave. Potato Facey. If Thomas can't pork the streak, At least he can streak the pork. Liberal's own guns, too, support root cause mitigation, not ineffective gun control. Well, I don't support ineffective gun patrol, but I definitely support effective one. That guy, Why buy a Tesla when we can just move the moon? This vaccine card is written on a cocktail napkin, and it still says not vaccinated. And not vaccinated is spelled wrong. Anarchism is the only good ism. Well, disagree. Agree. Excited about the return of social events, but we'll be more excited about the return of before and after care once kids can be, I think, vaccinated.

0:57:10 Thomas: Wow. Yeah.

0:57:50 Andrew: Tell Morgan get Tom's son. We did. January 20th, baby. Zach Bloom, Ray, livebaseballscorecards.com. That's all one word. Check those out, too. Legal Eagle is so handsome. California employment work, accident or litigation questions. Call or text attorney David Nipka, 310-776-5879. Again, that's 310-776-5879. The Smiths. Andrew, thou art a gobermouching zoilist. Get thee hence. Praise be unto Hamilton. Anyone looking for good news in Amy Coney Barrett's decision is going to be very disappointed and is also insane. Rest in peace, Brandon Bernard. We must abolish the death penalty. Justice for beer. Year, but budget. Botanist plant of the week is Zamioculus Zamioculcas zamiifolia, called ZZ plant. I'm sorry to have you have to read that. It is the. Yeah.

0:58:42 Thomas: ZZ Plant.

0:58:43 Andrew: ZZ plan. That. Oh, man, how great a band that would have been in the 1980s, right? ZZ Top fronted by Robert Plant. Anyway, uh, the

0:58:43 Thomas: Yeah, oh man, I didn't think of that.

0:58:53 Andrew: Lowest light house houseplant around. Well, I mean, I may have to get me a ZZ plant.

0:58:56 Thomas: The only problem is Led Zeppelin was already a perfect band, so any change of it, you know, like what's that getting you?

0:58:57 Andrew: Yeah. That's true. Yeah. Yeah. Zero argument there. All right. Oh, no associate of this tequila company has ever seen the Sparkle Donkey. It in fur ears, steel can't comb up with something clever. Mary and Adrian new book, Book, The Greatest Gift of All, A Logical Path from Religion to Humanism by Mark McLean, out now. One, E4, we've already done that.

0:59:27 Thomas: All right, we're on move two. Come on. Maybe even move three. Yeah well, I get Move one is black and white. So we're on move two.

0:59:28 Andrew: Yeah, we're on move three. Becoming a patron. Right. Becoming a patron to get five episodes a week, and I finally caught up on months of backlog. Adam Borchoff, 2WW creature, human wizard, zero, three, creatures without flying cannot attack. Hint, this is part of a cycle from future sight.

0:59:50 Thomas: I was not playing during Future Sight, but I do. That creature seems awesome. It's sort of like Moat. I think it's a callback to the card Moat, I believe. But I don't know the card because I wasn't playing during Future SIGHT, but cool.

1:00:05 Andrew: Brian K. Check out Budget Lobotomist on Fiverr. I kind of forgot that Jennifer Lawrence exists. Yeah, she did sort of fade away for a little bit there. I like my pork streaks paired with at Casa Agria and at Emperor's Brewery Beer. Jetpack Ferret Pizza Lawyer. If necromancy was real, would you subpoena the graveyard or the family if you needed to raise a witness? Lee Sharp GDT says the answer is yet again, there's a bunch of weird symbols in this Patreon name. Thomas Kleberg, buddy freaking guyerson followed Morgan on Twitter, now seeing a different side of the platform. Yeah, if if you're not following Morgan on Twitter, you should. Ben Gazi and the buttery males. Supreme Court justices should have 18 year term limits, and so should Conrad Michaels.

1:00:54 Andrew: Disagree on both. No Coin at this firm has ever failed the bar exam. Him two fabulous lesbians somehow pulled off an A and Civ Pro. When can I expect my official geekery card? Yeah, I I love Civ Pro. And now it's time to thank our Hall of Famers, our all-time greats on patreon.com/law. Edgy Veggie Bob, New House, Sassy Italy Tours, can't wait for Europe to be open again. I'm with you. Le Deux Lesbian Fabulo. Jennifer Tchaikovsky, one smart cookie. Scent Cutters, vaxxed and relaxed over here, baby. Does Jack Black know you have his Pick of Destiny? Any strict screwing me. John Brown did nothing wrong. Mike Hall. Evie Huntington Harvard Alum No Hood. Prince Richard Lorenz, dear rough translation sleeper in dog vomit. Hashtag Germans So Literal. 1e4 d5. Also the marathon was 453, so I think we had that last time too

1:01:50 Thomas: So we are. Yep, that's where we still are.

1:01:51 Andrew: Right, right, yep. Nuzzly Fuzzly Torsten, Peel the Satanic Temple, Elect Thomas Smith President, American Honky-Tonk Bar Association, support support your lokal Peruvian restaurant, Angry Mac Face, Penelope is glad Sydney got sanctioned for terpsichore, terpsickery, The Books to Burn Podcast, reviewing fictional depictions of trauma since 2019, this is not the greatest patron name in the world, no this is just a tribute, Support Africa Partners Medical.org, empowering African medical personnel to improve the health of people in Africa, continuing med. Oh, Wayne, anyone who ever lost at poker knows better than to try bluffing a Texas bankruptcy judge, that's to Wayne LaPierre, Murray Gregerson, Glory Buy-In Son, or Furry Gorge In Some, am I right, told another podcast, Minneapolis is the home of the two fabulous lesbians, they were marginally less impressed, Crimer, no criming, I wish our newborn would exercise his right to remain silent at 4 a.m.

1:02:49 Andrew: Tess Tickle. Simple Country Hyper Chicken. We are way in the posteriori that Seattle is the right choice for a first post-pandemic live show. Look, we will get to Seattle. I can promise you that. And put your boss on a performance improvement plan. Pass the PRO Act. Woo, Thomas, we're only halfway done. Take it away.

1:03:08 Thomas: Yeah. Thomas and a quarter star in a Rodgers and Hammerstein production of The Corn and I. Jake, Seattle Pete, Guardians, Ad Litem of the Galaxy, Christopher Brown, Philly Live Show 2022, I'll Bring the Scotch Cheese Steaks, Who's Bringing Gritty, Laugh-O-Copter says, Andrew and Thomas, from the bottom of my heart, thank you for everything you do. Podcast that pairs a man racing a quarter and a real-life lawyer. It's not murder if a demon made you do it. Don't take legal advice from GAM. OA Live Show in Sydney, Australia, please. Won't be vaccinated until October at the earliest. Thanks, government. MR or Mr. I don't know. Another Minneapolis waiting for a live show in Minneapolis. O-T-T B-E. Odin takes the bark exam. Robert M. Medicon 7. Lou. Mitch McConnell's so old his scrotum has a toenail. Gross.

1:03:55 Thomas: Our council advises that apparently nobody gets to put the Eli in feline. Shout out to 5D Chess with Multiverse Time Travel, it's a great game on Steam, we can and I'll hope that Joe Manchin is a fan. Red Rocks Amphitheater live show. Until transcripts, I thought that it was Milo Meat Song. Thanks, Heather. Always thought that was a weird name for a bard. Polly Hernandez. Christ, seven years of college down the drain. Emily Rainbow Spence. The best cardboard crack dealer in the Maritimes. The DeckboxHalifax.com. Ian Hamilton. Jason Kopas. Check out Budget Phlebotomist on Fiverr. This profile name is hilarious in the context of some other podcast.

I slid the sheet, the sheet I slit, and on the slitted sheet I sit. Okay, Nate Drex, Darth Mandy Pants, all your base are belong to us, take burger restaurant naming advice from a podcast, my fully stocked basement bar is your fully stock basement bar for a Philly live show platinum event, you pick what's on tap, oh my gosh, that is has a high likelihood of happening, Jeff Gelbach, Jennifer Cratch, Mike, oh geez, you're killing me with his weird name, Slutson. GiveToMyEyesKnees.org, GiveTo MyEyesNeeds.org. Laughing my ass off because Thomas knows more about the law than a coin does.

CivilPoliticsRadio.com, Friday at 7 p.m. Eastern on Valley Free Radio. John Bilderbeck, my friend's cousin, mixed Coke with Cop Rocks and he died. Not that Chris Wallace, Stephen Balticate Sandoval. Every time I see critical race theory abbreviated as CRT, I have fond memories of my Commodore 64. Philip Geyser, Andrea the Arbitrarian Capricious.

1:05:28 Thomas: COVID showed me I am the kind of guy that wants a little prick. Joe Manchin is the Donald Trump of Susan Collins's. Dude, Absion, Payne's Trumpet. Sorry for making you use the last one for so long. It was dumb anyway. Jonathan, Lord Kimbote, Alfred Wallace, Wittigo Thomas, pork that streak like a whoops, never mind. R.A.P. to my friend, Harry Mosley, survived cancer twice, only to be shot by some punk. Milo Meadsong wishes all Stephen Breyers a happy retire now. Join your labor union. Together we bargain. Alone we beg. Egg. Parsh lives matter. Dark eyes unionize. Edge dancers for Bernie. I don't know about any of that. If you think this is funny, just wait till next week. The statement, don't take legal advice from a podcast is false, is the next one. Anonymous, because of you, Puzzle and Thunderstorm and Cognizant, I left the LDS Church and the Republican Party.

1:06:16 Thomas: Wordorigins.org, your source for word and phrase origins. My witty names aren't original and my original names aren'T witty. RIP Notorious RBG. Go to Nerdgnostic on Society6 for punny corgi art. They said I could be anything, so I became two fabulous lesbians. Derek, I don't pray, but when I do, it is for evangelicals to get vaccinated. Our Kitchen is your kitchen for an eventual Seattle live show platinum dinner. The offer stands. Big Easy Blasphemy. It's kind of nice having a competent federal government again. SummitShuffleboard.com. A string of unpronounceable characters. Harandathedork.com. If opening arguments is joining the MSW network, does that make Allison Andrews boss? Malaika Chandler. They said I could be anything, so I became two princes who adore you. Soggy Pants.

1:07:01 Thomas: The 1929 Apportionment Act is unconstitutional, preventing states from getting reps relative to population. Sakashite Fukasumi. Hey, UEFA, being LGBT is not a political statement. Yeah, definitely. Adopt a homeless pet and oppose declawing in your docking. Day Jury Bellyette. Patchy's at last, baby. Maybe Heather L., Matthew Vernon, Adam Costa, Jay Aldenwalt, Jeremiah's Fancy Microwave Emporium, Ian and Allie, Danny Rosari, a Creflo Dollar smoking jet is still just circumstantial evidence, Eli Bosnick, David and Brooklyn, Rock Lee, Sam Dinell, Mitchell, Alexa, add more realism to my shopping cart. A True Story, Who Let the Dogs Out is a feminist protest song about cat collars. Is that real? I haven't checked that. I agree with that 100%.

1:07:42 Andrew: Have no idea.

1:07:43 Thomas: It sounds like a joke, but maybe it's not. Not. Natasha Crunchwrap wants to support the Justice Policy Institute, Sam Buck, and Conrad Michaels. Thank you so much.

1:07:52 Clip: Oh, no associate of this firm has ever failed the bar exam. No kidding.

1:07:58 Thomas: And now it's time for T3BE answer time. Let's see how the coin and I did.

1:08:00 Andrew: Right. Thomas, this was president of a pharmaceutical firm, uh, got a rapport that his anti-cancer meds were, uh, well below strength, uh, but then then shipped it anyway. Cancer patient who was relying on the drug died shortly after beginning to take the defective pills. Medical evidence established that he would have lived longer. I mean, you know, would have died before long in any event, but would have live longer had he gotten the actual medicine he was expecting to receive. The president was convicted of murder and then on appeal, argues that his conviction should be reversed. And then you add two no answers, two yes answers. You the first one says no, because the intentional delivery of adulterated or mislabeled drugs gives rise to strict criminal liability. You said that seems like an attractive distractor to me. And you are 100 percent correct on that. It is you.

1:08:53 Thomas: Ah, good. I'm least proud of that. I feel like I worked that out more like a lawyer than a Thomas.

1:09:01 Andrew: You did. Murder is not a strict liability offense. Offense. Murder requires mens rea. That's the difference. Right. So what's a strict liability criminal offense? Statutory rape. Right? So what matters in statutory rape is what was the age of consent? What was the edge of the person with whom you had sexual intercourse? Does not matter if she looked 18 or said she was 18 or produced a fake driver's license that said she was 18. Doesn't matter. You don't have to intend. You just have to commit the offense.

1:09:08 Thomas: Oh, I see. And that's it. Like that's the only factor. Yeah.

1:09:34 Thomas: Okay.

1:09:34 Andrew: Murder, not a strict liability offense, so good job eliminating that. So that leaves B as the best no answer. No, because the jury could have found that the president's conduct was sufficiently reckless to constitute murder. Then C and D, you said C, yes, because distribution of the defective lot was only a regulatory offense. You were like, that's easy. That's not. Again, good elimination.

1:09:56 Andrew: Exactly right. So then we have your choice was B. B, Coyne's choice is D, yes, because the cancer and not the president's conduct was the proximate cause of death of the patient. And Thomas, you've gained ground on the coin, my friend.

1:09:56 Thomas: Ah. Ah, okay. Well, is it me or is it the coin?

1:10:11 Andrew: Yeah. So here's here's the thing. This is testing your knowledge of the common law offense of murder. I really thought you might because you were sort of like you're.

1:10:10 Thomas: Yes. Oh, I was close to D. I was close. What was my reasoning? Good. My diabetes reasoning.

1:10:27 Andrew: The diabetes reasoning is is exactly right. And right, in the restatement of of criminal law, like the way it's put a little bit differently. But this is something that used to be called, you can manifest the specific intent to murder somebody. I thought you might get kind of distracted down the manslaughter route or whatever you You So one way in which you can manifest the intent to kill somebody is, you know, lying in wait. I intend to kill Thomas Smith. I wait in the bushes. I Wait for you to show up and then I shoot you and you die. But another way is through what used to be called depraved heart indifference and is now called extreme recklessness. Right.

1:10:48 Thomas: Yeah, I almost was. Yeah. Mm hmm. Right.

1:11:12 Andrew: And I want you to think about this. I show up at the schoolyard and I fire a whole bunch of a whole punch of bullets into the air. Right. I'm not I don't specifically intend for any of those bullets to specifically strike any of the kids, but I don'T care if they do.

1:11:21 Thomas: Right, sure. So, so it's about you can achieve a level of recklessness that's so bad that that can be interpreted as a motivation enough to be a murder kind of thing. Intending to murder. Okay.

1:11:41 Andrew: As intending to murder. That is exactly right. And that is exactly what answer B, which I have to tell you, worded very tricky. Right. It says because the jury could have found that the president's conduct was sufficiently reckless to constitute murder. It does not include extreme, which is one of the things if you just sort of memorized or does not say, you know, depraved heart. Right. Which is, you knows, the other thing that you would have memorized. And so you might I think a lot of lawyers are likely to get this wrong because they're going to go. So, yeah, just being reckless is not enough to murder to somebody. That's true. But you could be extremely reckless. And the jury could have said, yeah. No saying I know that this cancer drug is an insufficient strength, but I'm going to ship it out anyway, is extremely reckless about whether people live or die. It's at least as reckless as firing a gun into the air. And we're going to find you guilty of murder.

1:11:46 Thomas: Wow. Yeah. Wow, and

1:12:36 Andrew: Murder. So, yeah,

1:12:37 Thomas: The jury could have found that, you know, so it's not like you're even saying, oh, this definitely was. It's like, if that's in the range of possibilities, then you can't just overturn this conviction. Is that right? Oh, man. I just nailed it. I nailed it, let's face it.

1:12:46 Andrew: Exactly right. Exactly right. You nailed it.

1:12:50 Thomas: You know, don't slam the coin too too hard, everybody? That was a tough question. The coin maybe memorized the wording, like you said, and thought there wasn't the proper wording in B. I don't blame the coin. Tough break. It's hard. I get it.

1:13:04 Andrew: That's fair. Yeah.

1:13:05 Thomas: I can't believe it. This is amazing. I had two questions in a row. I feel like I've fully understood. I do not know where this came from. All I of a sudden I am in that hallway in the end of the Matrix and I am seeing the law trickle down everywhere, um, but I'm sure it will come to a very quick end at some point, but for now I'm riding the high all.

1:13:23 Andrew: I think you should be.

1:13:24 Thomas: Right, let's find out which listener is the big T3BE winner this week.

1:13:29 Andrew: Well, Thomas, this week's winner is a repeat winner, Josh Hoku, who has provided perhaps the funniest answer we've ever gotten. He says, D3BE, A is the answer for people who were drunk in Crim Pro, correct? B is the book answer. And since that's what we're looking for, that is the correct answer. C is the American answer. And D is the Justice Clarence Thomas, no one was making that argument, but now I'm scared answer. Great job, Josh, everyone should give them a follow, that is at J-O-S-H-U-A-H, okay, you at Joshua Hoku, and congratulations, Josh, on being a two-time T3BE winner. You already have never ending fame and fortune, so now you have that squared.

1:14:15 Thomas: And that's our show. Thanks so much for listening, um, was, that was really fun stuff, a little bit of consequences and some other horrible, uh, Supreme Court news, but but either way, thanks so much, everybody, for listening. We'll see you next time.

1:14:28 Andrew: Until then.

1:14:29 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.

1:15:03 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.