OA527: The Hilarious Legal Battle Over 'OlneyFans' Parody Article

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 527. I'm Thomas and that is Andrew announcing his new How you doing, Andrew?

0:01:29 Andrew: I am fantastic. You know, you gotta, look, I'm looking for every possible way to monetize, yeah, the assets that I bring to the table here.

0:01:34 Thomas: Yeah? In this economy? Andrew's OnlyFan. Yes, I'm so glad. You are an OnlyFAN, I understand.

0:01:43 Andrew: I I used to live in Only, Maryland, and and prior to last week the only bit of distinction on that was that, uh, if you played, uh, Fallout, right, anything like Bethesda, Softworks games, right, Bethesда is, is another city in Mary- Montgomery County, Maryland's, so, uh, I think the, the deathclaws were from Olney, they would have, you know, actual geographic reference to places that I found familiar, which is fantastic.

0:01:58 Thomas: Oh yeah. Mm-hmm. Hmm. Yep.

0:02:16 Andrew: Now, slightly familiar for something else. So we'll get to go through it.

0:02:21 Thomas: Yeah, I can't wait Uh, this is a, this is a thing that you may have seen on the internet, Only Fans. I can't wait for the breakdown, gonna be so much fun. Uh, let's see, any other news? I guess, again, Law'd Awful Movies for our, uh, fine patrons, um, check that out, it was a ton of fun. And anything else, are we getting, should we get going? Okay.

0:02:42 Andrew: No, let's get, let's go, get going.

0:02:44 Clip: He who questions training, only trains himself at asking questions. What?

0:02:52 Thomas: First up, though, listener comments. Oh, yeah, we heard from somebody, this is interesting. Uh, why don't you tell us who we heard from in our email inbox.

0:02:59 Andrew: We Heard from, and now follow Ohio Intel Tips on Twitter, because we got this email. Ohio Intel Tips says, I recently came across your podcast that, uh, discussed Torba Maris. Right, in your first podcast, 452, you mentioned not knowing how Maris was unmasked as the expert witness from her, her redacted affidavit. Right. And we talked about how, you know, Spider, they filed it as Affidavat of Joshua Merritt in the, in the court system. So you could actually see the file name here. This was, you, affidavas, whatever. There was no such error. Anyway, back to the email. It was me. As soon as I saw the affidava, I knew it was from her.

0:03:50 Andrew: Her writing style is too too distinctive to go unrecognized. But also, much of that affidavit was copied and pasted from an article, quote unquote, she wrote for her website in 2019. I was also the initial source for the Washington Post article on her in December 2020. I've been tracking Tor a long time. Other researchers have been at it much longer. She has a very lengthy history of fraud and other criminal activities. In essence, we've never been able to verify that she has ever held an actual legitimate legitimate job. She used to go on podcasts as a guest claiming to be a medical doctor.

0:04:10 Thomas: Hmm. Oh my God, yeah.

0:04:27 Andrew: She was banned by various podcasters once they figured out she was lying. Then she switched to claiming she was a career intelligence officer and contractor who was involved in, of course, all sorts of classified missions and programs. She even claimed to be the person who hacked the DNC and RNC servers, uh, according to Ohio Intel Tips, uh, and I should add, we engaged, we in journalistic efforts to verify these claims, right.

0:04:44 Thomas: Yeah, definitely, I Was Going To ask you about That, wow.

0:04:53 Andrew: So Yeah Yeah Yeah, so, we are, I have seen screenshots of communications between this individual and The Washington Post. I find that credible, right? Like, this at the end, if we're being hoaxed, we're being hoaxed. This is an awfully good one. I find, I find it pretty credible. So continue. "She was kicked out of the Navy after only eight months following her arrest for check fraud and theft, which we've covered on the show. She moved to Ohio in 2020 and filed numerous lawsuits against local school boards in an attempt to stop mask mandates for students. Just this past week has filed a writ of mandamus against Governor DeWine regarding masking and vaccination. There is literally too much information about Tor out there exposing her scams and lies. Somehow she maintains a very large following, makes a lot of money from her support, from her supporters." Yeah, we saw Morgan, Morgan Stringer found that they, they were trying to crowdfund a like, you know, six figure sports car for her for her birthday, which, you know, again, my birthday is October 7th. So, you Know, yes,

0:05:02 Thomas: Wow.

0:05:53 Thomas: Wasn't She the one, I, I, I don't want to be mixing up my, uh, my nut jobs here, but wasn't he the one who blew all that money on, like, waxes or something? Remember that? That

0:06:05 Andrew: Yeah, yeah. Yeah, it was all on bikini waxes and trips to Target. It was fantastic. Yeah, she was present at the January 6th, 2021 Capitol riot and tweeted encouragement to those breaking into the building that again, we can verify. So super cool. There's... there's folks out there doing parallel work. And believe me, this is somebody who is has been in on the grift and is is trying to graduate to the, you know, Sidney Powell level. So I'm glad there's somebody out there tracking what Terpsichore is doing.

0:06:06 Thomas: Right. Yeah. Yeah, yeah.

0:06:44 Andrew: And thank you so much, Ohio Intel Tips. And we do now follow them on Twitter. They've got good stuff.

0:06:50 Thomas: A Yeah, no, so cool to hear from. Yeah. It sounds like a real sleuth, you know? Someone who's, who's doing that research work and all that. So thanks so much for writing in and, uh. Still haven't heard back from my, uh, our one NFL listener that I'm, I assume exists, um, haven't heard back yet. Our, our inbox is open, open arguments, that's open arguments at gmail.com whoever's And Doesn't have to be just one. If there's any other NFL players, coaching staff, I'll take coaching staff, but like a coach that I would have heard of, not, you know, If you're just behind the scenes,

0:07:09 Andrew: Yeah But Like A Coach that I would Have heard of, I love That

0:07:22 Thomas: Yeah Yeah Like A head coach or, you know, offensive coordinators, defensive coordinator, somebody I'm going to see on the sidelines, or, or maybe in the Skybox, I'll Take that But maybe I'm getting too picky, maybe beggars can't be choosers, no.

0:07:31 Andrew: Okay Got It Well, you know who we did hear a lot from, uh, was, we, we put out a call to our, uh, transmasculine listeners, uh, and I want to read, uh, three of the comments that we got, um, and, I am doing this because, in my research and from what, you know, trans men have, have said to me, the biggest thing that they are concerned of is, uh, sort of trans male erasure, right? That's why, why inclusive language is important. I've done a little bit of research, I'm going to talk about that at the end. So, I'm just going to read the comments and kind of add their voices to the discussion. I really appreciate that. And hopefully we're amplifying some of those voices. So Tobias Girl writes, it's exhausting being caught in the crossfire as a trans man.

0:08:24 Andrew: We're just as impacted by the law as cis women, but pro-choicers don't always want us around round because we complicate their slogans. You describe the complexity of the situation with grace and nuance, and that lessens the burden we have to bear if only by a little. The one thing I'll add is that from an anti-choice perspective, we're very much included in their war on women because forcing us to pretend we're not who we are is one of their goals. They view us as women, whether it's true or not. And then Nick Expands on that a little bit.

He says, from my perspective as a transmasculine person, the point I'd add to this discussion is there's not really much of a distinction to Republicans between the war on women and the war on trans, or really most LGBTQ plus people were assigned female at birth people, specifically because Republicans don't think trans people really exist, and so view anyone with a uterus slash the capacity to get pregnant as really a woman that is in need of controlling back-to-standard gender norms. There's generally a hyper-invisibility that applies to transmasculine people, especially once we pass reliably, but the women-lite impression is very strong, particularly for those early in transition that present more femininely or just don't pass as male very well for whatever reason.

0:08:38 Thomas: Hmm. Oh. Interesting. Yeah.

0:09:41 Andrew: This war on women can end up presenting on transmasculine people, then, is basically a war on the parts of a person perceived as woman, which may lessen and become less visible over time, but can still exist, which is very bioessentialist and reductive to a person's humanity and sucks, but that is rather the point by these politicians. Basically, queer people both stem from the same enforcement of gender roles, and both can be seen in the current overlap and history of the language around the queer community. And then our good friend Stormy Decisis chimed in, and I really liked this. I enjoyed all of the emails. Else. So Stormy says, I see parallels with the Sikh community.

Sikhs aren't Muslims, but assholes think they are. When Sikhs in the U.S. are victims of discrimination and harassment, the motive is almost always misplaced Islamophobia. In both cases, a tiny minority community is being assaulted by ignorant buffoons who wrongly think that that tiny minority is part of a larger, also disempowered group. Islamophobes think Sikhs Muslim. The people who wrote this law think all people with uteruses are women, and all women are 3D printers. In both cases, the assailant's motive is worth highlighting. I have enormous respects for Sikhs for not throwing Muslims under the bus. At any time, they could have bought a few billboards saying, we're not Muslims, stop harassing us, but they didn't. They dug

0:10:29 Thomas: Yeah.

0:11:09 Andrew: In and they fought Islamophobia, even though it wasn't their fight. Right. In the same vein, anti-abortion people mostly think I'm woman and denigrate me for that. All of this is a long way of saying I think a mixed approach is called for. Attacks on abortion are misogynist and should be called out as such. That means at least some discussion of abortion as a women's issue. At the same time, it's worthwhile to remind listeners that some of the people affected by this law are not women. I don't know what the right ratio is, but I have confidence that you'll find a reasonable split. So thank you all of that. I will pass on, when I was reading, I was struck by the writing of Alexander Petrovnya, he wrote a blog called Women Aren't the Only Ones Who Need Women's Health, and it discusses some of the horrifying consequences of trans erasure,

0:11:09 Thomas: Doesn't

0:11:58 Andrew: Including, and I don't want to get into the details, but skip it 30 seconds if you don't want to hear any of it, a pregnant trans man who was, had to go to the emergency room, and, uh, was improperly triaged at the hospital because the nurse tagged him as obese rather than pregnant, and, uh, delivered a stillborn, uh, child. Yeah, so I, I I thought it it was, uh, a moving story for me. And, um, and that's, that's what I found. So again, what I take away is, you know, as somebody who does an awful lot of talking, I am, I am trying to listen, uh. On this. So, uh, so thank you for, uh. For sharing your voices with with us.

0:12:41 Thomas: Interesting to hear more perspectives, and we've got the best listeners. I love, it's so fun. The number of people that write in and are just, they're so fascinating and thoughtful. I love it. So thank you for that.

0:12:53 Clip: Down the law, down the law.

0:12:57 Thomas: And now for our main segment, it's Andrew's Only Fans, can't wait, how do we Subscribe, what are the, what are the perks, what are the first few choice photos you have up? Oh,

0:13:02 Andrew: Yeah. So this, so this story, you know, hit the rounds last week. And Um, so full disclosure, not only did I used to live in Olney, um, my son played baseball in Olney, uh, first for for the only Boys and Girls Club, and then later with some travel ball. Team that is affiliated with parties here is a team called Koa Sports, and they had invited him to be a part of their 12U travel team the year we moved out, Right. Like literally right before we had to move out and find a different team. So, yeah. So this is this is about all the -- it's about the law. It's about baseball. Like how perfect is that?

0:13:22 Thomas: Wow. Yeah. Oh.

0:13:55 Andrew: And and I just had to dig into it. So it starts with a an online humor publication called the Tacoma Torch. Designated as a nuclear-free zone. It's kind of an old-line hippie community, right? And It's on the Metro, and I used to live there when I was going to college, when I went to GW, and, so that is, I had not heard of the Tacoma Torch before that, um, but I think, okay, and, and the, the, you know, the editor is, uh, listens to this show and wants to reach out and, and correct my view, I've read a couple of articles on there and I think the idea is he's sort of a, a new liberal leftist. And he's kind of sometimes pokes fun at the, you know, kind of classical 60s hippie liberalism of Tacoma Park. Right. So I know that that he's a fellow traveler. Right, because one of the, the September 1st post on the Tacoma, on the Takoma Torch was, nation shocked that the Supreme Court did exactly what they've been promising for decades.

0:14:09 Thomas: Yeah. I

0:15:03 Andrew: Right? And this is pretty begins. "Americans woke up Tuesday morning in a state of shock after discovering that the Supreme Court, with a clear majority of reactionary religious conservatives who were only confirmed for their definitive anti-abortion views, had decided to allow Texas Republicans to make good on a 40-year promise to strip half the state's population of any autonomy over their own bodies. I just can't believe this is happening," said Luke Halpern, a political commentator on CNN. "I mean, this is what every, literally every single women's rights organizer in nation has been warning us about since 1973. But still, to be blindsided by this by a Supreme Court with a solid 6-3 hyper-conservative majority is just shocking. Right.

0:15:39 Thomas: Yeah. Oh.

0:15:40 Andrew: So, OK. So that's where the Tacoma torch is coming from. Fellow Right? Travelers on the left, parody news site. Right. And what what what off the dispute was they posted a satirical article about only which, again, if I haven't made this clear, is kind of the seat of youth baseball, at least in Montgomery County. But I would say, you know, it's where the best baseball in the state gets played. But part of that is because my son used to play there. And they are bringing in a Cal Ripken League baseball team into the state. And that is a collegiate level independent baseball team.

0:16:20 Thomas: It's Not just clones of Cal Ripken, and they play each other, like, 18

0:16:22 Andrew: Yeah, that would be that would Be amazing.

0:16:25 Thomas: Cal Ripken clones.

0:16:30 Andrew: Well, do I send up Ripken here or

0:16:30 Thomas: Give me that leak. Yeah. Do I do? Yeah. Well, this Ripken is left-handed Ripken. There's a certain number of them, you know, the clones.

0:16:36 Andrew: It'll be like multiplicity, like some of the clones or, you know, bad copies of the original. Yeah, So they posted an article was OnlyFans entitled website for Montgomery County's new baseball team crashes due to unusually high traffic. You know, so the through line is we knew that starting a new baseball team and only would be popular, especially with males between the ages of 13 and 55, said marketing director Brock Jacobs. But when our site registration exceeded the entire population of Maryland after announcing a free footlong on opening day against the Bethesda Big Train, we realized our huge oversight. Now, that's that's only an extra layer of funny if you know that the Bethesda big train is, in fact, a real travel team.

0:16:41 Thomas: Yeah. Yeah, yeah. Oh, really? Oh my

0:17:25 Andrew: Oh, yeah. One hundred percent real travel theme in the state of Maryland.

0:17:26 Thomas: Gosh. That's awesome. I thought they had to make that up. That Oh my God, that's That's fantastic.

0:17:30 Andrew: Oh, no. Yeah, that that's You know, that's that's that's good. Only administrators soon confronted a new problem on the OnlyFans user forum, where posters can discuss opinions on the team, the players, and other baseball-related topics. Moderators have been working overtime to filter inappropriate content, but have yet to determine if phrases such as "getting stuffed with the backdoor slider" and "making your knees buckle with the split finger" should be removed. All right, so, all in good fun. Yeah, you know, it's

0:18:00 Thomas: This is just a - this is just a Onion wannabe, right? That sounds like they're very good Onion wannabe, that's funny stuff, so

0:18:03 Andrew: A yeah, it said it's an it's An Onion Wannabe. That's September 8th. On September 9, via email comes in a cease and desist letter from Andrew L. Schwartz of the firm Stein Sperling, with with whom I have litigated several cases. So, yeah, the fun police sent

0:18:23 Thomas: In other words, the fun police they got a fun police sent a letter saying stop having fun. How

0:18:29 Andrew: A letter that says this firm represents the Olney community baseball team. Please direct all communications directly to my attention. Olney Baseball has learned that the Tacoma Torch has circulated communications that use the name, image, or likeness of Olney Baseball in a false, misleading, and or defamatory manner. And then it cites the article. And then, it says, no one from or on behalf of Olney Baseball was contacted, interviewed, or consulted about the article, it contains numerous false and misleading statements, for example, Olney Baseball one does not have a website. Site. Two, the individuals purportedly quoted in the article have no relationship with Only Baseball and are not in any way affiliated with Only Baseball. Three, the individual's quoted in the article, have no authority to comment on or speak on behalf of Only Baseballs. Right. And four, this is the best part. The article references a purported logo for Olney Baseball. However, Olney Baseball does not have any logo at this time. And again, that's the joke.

0:19:05 Thomas: Dare you, say we have a website. Yeah, that's the joke, that don't have a logo.

0:19:29 Andrew: And the, by the way the the logo is uh we'll make it the show note graphic it yeah it is it's it's the only fans logo with with only replaced with only and inside the O is a little is a blue baseball bat sticking straight up flanked by two baseballs uh it's pretty funny right and it is it is obviously five minutes of work with with Photoshop right like it is not this you You could not possibly mistake this for anything other than a joke. Right. It is.

0:19:30 Thomas: Oh, yeah, yeah, that's great, yeah.

0:20:05 Thomas: Yeah,

0:20:05 Andrew: There's not enough effort that went into it for it to be anything other.

0:20:06 Thomas: I I'm sorry, I thought we lived in America. Only, I thought, you know, like, come on, satire, you know? I feel like we're usually pretty protected by the First Amendment, uh, what, am I wrong? Oh,

0:20:12 Andrew: Yeah. Yep. No, no, no. You are not wrong. That led to and the only reason that I'm covering this, which is Tacoma Torch's response dated September 12 to the lawyer that wrote this letter, which which I will now read in full. I've only been quoting from from parts before. But this is this is too good. This is this is better. This Is Their Best Writing, I Think.

0:20:41 Andrew: Mr. Schwartz, Thank You For Your Recent Submission Of A Satirical Legal Threat.

0:20:48 Andrew: Even Though Our Writing Team Found It To Be Extremely Hilarious, Unfortunately, It Does Not Technically Meet Our Qualifications Of Containing Fewer Than 300 Words And Having A Punchy Headline. So We Will Not Accept It At This Time. Time.

0:20:56 Thomas: My God, legends, oh, how fantastic fantastic, this is

0:21:02 Andrew: Perhaps,

0:21:03 Thomas: A skilled - this is a very talented team.

0:21:06 Andrew: Could have used, "Olney makes history with first baseball team to lack a sense of humor," or, "Even lawyer has balls to make baseless claims against satirical baseball story." Either of these headlines would have been acceptable. The Tacoma Torch would also like to take this time to express our sincere regret that your client does not yet have a team logo. The good news is we're willing to sell our custom Olney fans logo at a special discount of Olney, five thousand dollars.

We're currently using it to sell shirts to raise money for the Only Boys and Girls Club, unless we continue to receive baseless legal accusations causing us to redirect those funds to defending our First Amendment rights as satirical writers. We're sure nobody wants that kind of bad press. Finally, while we appreciate you essentially giving yourself to us by closing with "very truly yours," as a lawyer you should know that the civil war amendments prohibit that sort of thing. See U.S. Constitution, amendment 13, Section one. Sincerely, the Tacoma Torch. And then, I - if you were not all in yet - cc Barbra Streisand. Oh, So, uh, just, uh, a That Is it, that is a genius level response, um.

0:21:10 Thomas: Oh, wow, that's top notch, absolutely, yeah,

0:22:17 Andrew: I and I wanted to talk a little bit about the actual legal principles that are at stake here, because everything I have been able to find, including an article in The Washingtonian that covers this seems to indicate that the lawyer is not going to just, you know, kind of put your tail between your legs and walk away. Right. That, by the way, is the right call at this point in time. Right. Like like when you get owned by a non-lawyer over your cease and desist letter, maybe stop digging. Otherwise, Right. This is you know, this is how you wind up with a 12 minute musical montage about you on The John Oliver Show. But let's kind of go through this. We've talked about this before. Hustler Magazine versus Falwell is often cited for the principle that satire can't be defamation. It's actually a little more nuanced than that. And I went in kind of figuring it out to try and out the contours of the what courts in those cases. Cases. Right. And so I went and I actually read the appellate court opinion, which ruled in favor of Jerry Falwell.

0:22:48 Thomas: Yeah, right,

0:23:35 Andrew: Right, on on some of the causes of action. Right, and quotes at length. God, if I could find this, this would be, there's no way that this is available online. Line. Um, but, uh, Jerry Falwell's lawyers took a deposition of Larry Flint, the publisher of Hustler Magazine, in June of 1984. It was apparently a video deposition, uh, love to see either of those. So during, during that deposition, Flint, uh, used multiple aliases, uh, he testified that the ad, oh, and I should, I should take a step back, saying Hustler Magazine versus Fall, we have discussed this on the show on multiple occasions, but just as a refresher, this was a parody ad for Campari that ran in the pages of Hustler Magazine at the time.

0:24:21 Andrew: Campari, by the way, is a delightful bitter alcohol that is used in Negronis. That's how I use it. But at the Time in the in the 80s, they were trying to push like Campari and soda as like an elegant drink for women. Right. And so they had this massive ad campaign going and the ad campaign was Campari talks to X about their first time. Right.

0:24:48 Thomas: Yeah, you've told the story a lot of times, that's okay, one more won't kill me, yeah, true, I

0:24:50 Andrew: Yep. Well, we get we get new listeners. We get new visitors. And so, you know, they would interview various celebrities about their first time drinking Campari. Campari, the Hustler magazine parody of that, was right. Campari talks to Jerry Falwell about his first time, his first time actually being right, because, they yeah, this was the mid 80s. So, you know, the the ones that ran in Newsweek were, you know, Three's Company level of of subtle, you know, like, "Well, my first time was, you know, at the country club," or, you know, and you were supposed to titter, going, "Oh gosh." Um, Hustler, you know, had very little uh qualms about

0:25:30 Thomas: Didn't have the talent of a The Tacoma Torch.

0:25:31 Andrew: Uh no But they, but you know, uh, so their interview suggested that Jerry Falwell's first time was with his mother in an outhouse after they'd kicked out the goat, and then, I love that, uh, Larry Flint was asked about writing and running the ad, and these are real questions asked in the deposition, quoted in an appeals court. "Question: Did you want to upset Reverend Falwell? Answer: Yes. Question: Do you recognize that in having published what you did in this ad, you were attempting to convey to the people who read it that Reverend Falwill was, just as you characterized him, a liar? Answer: He's a glutton. Question: How about a liar? Answer: Yeah, he's a liar, too."

0:26:19 Andrew: Question, how about a hypocrite? Answer, yeah. Question That's what you wanted to convey? Answer Yeah. Question And didn't it occur to you that if it wasn't true, you were attacking a man in his profession? Answer Yes. Yes. Question. Did you appreciate at the time that you wrote OK and approved this publication as for Reverend Falwell to function in his livelihood and in his commitment and career, he has to have an integrity that people believe in? Did you not appreciate that answer? Yeah. Question And wasn't one of your objectives to destroy that integrity, to harm it if you could answer to assassinate it? It. So I love that. And I love, right, that that's the evidence at trial.

0:27:05 Andrew: That's the evidence from deposition. And what it goes to show is it is not just the principle that parody or satire is protected by the First Amendment, but that, in fact, it applies to other torts, right? It can apply to the intentional infliction of emotional distress claim that was the subject of that lawsuit. It could also apply even to statutory claims like copyright claims, right, because, again, what the court is doing is, you might say, say, as of our continuing arguments against originalism, right? It is construing the First Amendment broadly and liberally. Nowhere in the First Amendment does it say you have a right to parody other people's stuff. But we have a long and rich history in this country of allowing people to do so.

0:27:56 Andrew: And that free expression trumps even long-established state law torts, state statutory torts, federal statutory law in a way that I think is impossible for originalists to to defend. The copyright case is is really interesting. Thomas, you're as a as a creature of the 90s. You missed out, I think, on two live crew. Right. Do you know?

0:28:19 Thomas: Yeah, I don't really know that. Sorry.

0:28:20 Andrew: Yeah. Yeah. Two, Live Crew is a is a rap is group led by uh Luther Campbell, Luke Skywalker, with two y's. Uh, their breakthrough hit uh was a song called Me So Horny, and uh her album was called As Nasty As They Want to Be, and it was designed, it was a backlash to, who, you, standards and practices of the 1980s. So horny is every bit as offensive as you could possibly imagine in terms of racial and gender stereotypes. And, you know, was their biggest hit. In any event, they also did a satire slash parody of Roy, Roy Orbison's Pretty Woman. Their goal was to say these lyrics are so simplistic. So what we want to do is replace them with, right, offensive and shocking and unexpected lyrics.

0:28:23 Thomas: No,

0:29:11 Andrew: Now, you could argue to what degree they succeeded in doing so. I am not going to quote from the lyrics of the songs. You can Google that yourselves, guys, but it was essentially you, Pretty Woman, um, and then some other stuff layered on top of it.

0:29:25 Thomas: So, mean, but kind of like Weird Al sort of-esque, right? I mean you're just changing lyrics.

0:29:26 Andrew: Yep. It it, Exactly. Right, and and in fact, um, this leads to the the basis, right, of rules that govern Weird Al. This case is called Campbell v. Acuff-Rose Music, 510 U.S. 569. And it discusses to what degree parody insulates you from copyright liability, right? And it goes through, right, the fact that parody can claim legitimacy for some appropriation does not, of course, tell either the parodist or the judge much about where to draw the line. And it goes through and tries to figure out, like, is this a good parody or a bad one? Right. So it says here, the district court held, and the Court of Appeals assumed, that Two Live Crew's Pretty Woman contains parody commenting on and criticizing the original work, whatever it may have to say about society at large.

0:30:20 Andrew: As the district report remarked, the words of two live crew song occupy the original's first line, but then, quote, quickly degenerate into a play on words, substituting predictable lyrics with shocking ones that derisively demonstrate how bland and banal the Orbison song seems to them. End of quote.

0:30:37 Thomas: How dare you.

0:30:38 Andrew: Judge Nelson came to the same conclusion, that the Two Live Crew song was clearly intended to ridicule the white bread original, and reminds us that sexual congress with nameless streetwalkers is not necessarily the stuff of romance and not necessarily without its consequences. Consequences, um, the court actually goes through and and and to ascertain, right, the threshold question when fair use is raised in a defensive parody is whether a parodic character may reasonably be perceived, whether going beyond that parody is in good taste or bad does not and should not matter to fair use, which is the whole point of going through. So the question really is, how is, number one, is there a connection to an element that you are parodying?

0:31:24 Andrew: And then what kind of work are you doing in connection with that parody? And the more the work, the more that that's entitled to be sort of fair use under copyright. And all of this, again, you know, as I pointed out at the outset, is nonstatutory, right, it, this is interpreting the spirit of the First Amendment as constraining the the written black and white rules of copyright law, even though that's a federal statute. You, um, so so yeah, so the court, the court contains as Appendix B, you don't, you don'y even have to Google it, uh, the appendix be to opinion of the court, Pretty Woman, as recorded by the Two Live Crew, um, so if you ever want to uh experience that one again, um, can you can absolutely read it.

0:32:14 Thomas: Controversial take.

0:32:15 Andrew: Well,

0:32:15 Thomas: I'm going to lose all our listeners, but it's okay. Can just hate me remember andrew's the legal genius for the show and reason you listen anyway I don't like parody songs I think they shouldn't be allowed I think you should have to pay I don'T THINK YOU SHOULD BE ABLE TO TAKE A CLASSIC CHERISHED HIT THAT UH THE REASON PEOPLE ENJOY IT IS YOU KNOW COMBINATION OF THINGS WORDS MELODY CHORDS SINGING ALL THAT AND JUST CHANGE A COUPLE WORDS AND THEN YOU GET TO PROFIT OFF OF THAT ENTIRELY I THINK IF YOU'RE GONNA ALLOW PARODY in my in my america okay it's it's not illegal or something but you gotta fork over like 50 of the any proceeds you make on it it's amazing to me that weird al can just take some art that someone else did slap some lyrics that honestly aren't not that funny to it and then just make whatever money off of that because people are still singing and banging and head banging whatever they're doing dancing along listening in their car they're still enjoying enjoying that original artistic product that someone made. It's just got a few new syllables added to it. Anyway, I just lost all our listeners.

0:33:17 Andrew: I think no, no, no, I mean you've lost me because Weird Al is a genius and and I will not hear otherwise. But page 589

0:33:23 Thomas: Yeah, I don't know. Just not into it. I don't know why.

0:33:25 Andrew: Of the opinion, Justice Souter, I think, gives voice to the Thomas view here. He says, this is not, of course, to say that anyone who calls himself a parodist can skim the cream and get away scot-free. In parody, as in news reporting, context is everything. And the question of fairness asks, what else the parodists did besides go to the heart of the original? It is significant that two live crew not only copied the first line of the original, but thereafter departed markedly from the Orbison lyrics for its own ends. Two Live Crew not only copied the bass riff and repeated it, but also produced otherwise distinctive sounds, interposing scraper noise, overlaying the music with solos in different keys, I have no idea what the hell that is, and altering the drum beat. This is not a case then where a substantial portion of the parody itself is composed of a verbatim copying of the the original, it is not

0:33:38 Thomas: Yeah. Oh, yeah. Scraper noise.

0:34:18 Thomas: Yeah,

0:34:18 Andrew: That is a case where the parody is so insubstantial as compared to the copying that the third factor must be resolved as a matter of law against the parodists. So you know, the Supreme Court has given some voice to that.

0:34:18 Thomas: Right.

0:34:28 Thomas: Interesting. Okay.

0:34:31 Andrew: Uh, and I would certainly agree, like some of the very earliest, like, Weird Al stuff that he did on Dr. Demento, right? You know, with uh doing my Balona for my Chiron. Okay, fine, right? Like, you could see that might fall under the suitor exception here. Of

0:34:46 Thomas: I mean, there are Weird Al songs where you don't know if it's the Weird Al version or the normal version for a while. You know, It could be either of them for some part of the song. Am I wrong?

0:34:47 Andrew: Agree to disagree.

0:34:57 Thomas: Oh. No, that wasn't an insult. Mean, no, he does the...

0:34:59 Andrew: Some of it, no, no. Some of his early stuff,

0:35:01 Thomas: Yeah, like he copies it so well that you don't know which one it is for a while, is all I'm saying. That was an insult to him.

0:35:01 Andrew: Yeah. Some of His very early stuff is like that. Yeah, yeah So, is there any, we've gone through now and talked about parody, we're going to wrap this segment up, the only argument, argument that I could see here with respect to the baseball team, as scratching my head as to why Andrew Schwartz doesn't just, you call it a bad day and go home, is that the Hustler and the Campbell cases for the purposes of argument, that you are parodying a public figure, year, right? And they use, in fact, repeated citations in Hustler versus Falwell to the New York Times v. Sullivan standard. And you could argue, and almost all of the parody cases are based on public figures, right, there's not a lot of case law on this because usually the people you're parodying have to be well known, right for it to be funny, right.

0:35:25 Thomas: Oh, for the love of God. Yeah.

0:36:02 Thomas: Yeah.

0:36:02 Andrew: Because why would you why Why would you parody? You know? Yeah. So there isn't a lot of law on this. You could argue, I guess, that that the core of the set forth in Hustler versus Falwell has to do with the New York Times v. Sullivan standard here and here. You know, this is just an anonymous baseball team and, you know, we don't deserve it. That's the best argument I can come up with. I do not think that argument would fare very well in the courts. I think the underlying principles are not a function of the notoriety of the parody. But I do. You know, we always try when we go through, particularly when we're having a good laugh to to see if there's an argument on the other side. And that's the best that I could come up with. Still don't think it's great.

0:36:04 Thomas: Yep. Hmm. Mm-hmm. Yeah.

0:36:49 Thomas: No, it's terrible. Yeah, cut your losses. I mean, come on, if you can't write a parody article, like, right? I mean what, what country we live in. I mean that doesn't work anymore because we people are having to drive hundreds of miles to try to get basic medical care. So maybe that argument doesn't works as well, but I mean the first First Amendment still kind of exists, right?

0:36:56 Andrew: Yeah.

0:37:10 Thomas: Do we still have that?

0:37:10 Andrew: Still a thing. Still a real thing. So, yeah.

0:37:11 Thomas: Yeah. Okay. This show is brought to you by Cuts Clothing, and Cuts is all about what they call the sport of business, which is about versatility. This is what I love about Cuts clothing. Their shirts, polos, hoodies, and crew sweatshirts are are made for someone who loves to work hard, play hard, and never settles for less. And they're built for performance anywhere, that could be in the boardroom or in the gym.

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0:40:36 Clip: WOAH-

0:40:43 Andrew: Whoo.

0:40:43 Thomas: Wild card. All right. You've left time. Wow. You're time management, Andrew. You're really on top of it these last few episodes. I'm so impressed. What's our wild card?

0:40:52 Andrew: Wild card is about continuing to keep the pressure on these idiots, dimwits, and insurrectionists who are being allowed back into proper society. And And the only way to make sure people don't forget these people participated in an armed insurrection at the Capitol to try and overthrow a democratic election is by not, speaking out when when people try and normalize that. So let's start off with Sidney Powell. Right. Sidney Powell, having fresh off sanctions from the Mexican court and Judge Parker, was already at it again. This is Hill Reporter noting that she went on some right wing dipshit show and claimed the day before the California recall vote that, yeah, they're going to lose because, of course, they're stealing all the recall votes.

0:41:50 Andrew: She said, quote, 70% of voters in one California county showed up to the polls only to be told they'd already voted. That is false. That is not true in any way whatsoever.

0:41:49 Thomas: Yeah, definitely.

0:41:59 Thomas: That's so stupid. Oh.

0:42:01 Andrew: The Hill reporting noted that she couched claim in cautious terms, saying that the claim for which she offers absolutely no evidence whatsoever is what someone else told her, not naming the source or giving any information that would verify how reliable that source is. She didn't even name the county in which she alleged that it happened and then finished with. If somebody ever investigates this fraud, that election fraud will continue to be rampant until voter ID is implemented, ballots are all paper, and the 2020 election is fixed. So, yeah, no, no shame.

0:42:11 Thomas: Yeah. So...

0:42:33 Thomas: Voter ID would have prevented that, which is weird, because when somebody showed up to vote, they were like, "You already voted." How did they know that?

0:42:36 Andrew: Yeah. Yeah, right. Having an ID would have proven that they hadn't already. I don't even know. I guess the idea is you couldn't have stolen it the first time.

0:42:45 Thomas: Yeah. Yeah. Mm-hmm. Yeah. That first guy, they only ID the second attempt at a vote. This is really stupid. Can we say defamatory things about Sydney Powell by just saying that someone told me that, and I'm not gonna say who

0:42:55 Andrew: Yeah. It's. Yeah, it is terrible. Yeah. Apparently That's the standard now is, you know, somebody told me Sydney Powell eats babies, um, yeah, what, you know, Yeah. I I told you, she is the worst lawyer I've ever seen, and we, we review bad lawyers for a living, um, I'll stand by that one. I but want to talk about some under-the-radar names, too. And this is an MSN piece says that that notes a couple of different folks. The first is Jeffrey Clark, who was hired as chief of litigation and director of strategy at the New Civil Liberties Alliance, a conservative libertarian law firm that battles the administrative state and has former D.C. Circuit Judge Janice Rogers Brown on the board, noted libertarian law professors Randy Barnett and Eugene Volokh, right? Right. The Volokh Conspiracy. And despite the fact that Jeffrey Clark was an active participant, supported the January 6th insurrection, repeated Trump's baseless, ridiculous claims.

0:43:11 Thomas: Yeah. Yeah. Somebody told me. I'm I'm NOT at fault. Uh, Yeah. Yeah.

0:44:16 Andrew: None of them, none of the members on the board of advisers of the new Civil Liberties Alliance spoke out about hiring this guy. This should be when you try and overthrow the government, that should be a resume killer.

0:44:30 Thomas: Maybe some social consequences, maybe a little bit. Well, again, I, I, not just the insurrectionists, uh, also anti-vaxxers and people who say they aren't going to get the vaccine and whatever. In my opinion, at the very least, least, some social pressure. Don't tiptoe around, "Oh, your choice." No, it's definitely, yeah, okay, your choice to get a bunch of people killed. You know, like my kids who can't get vaccinated, and, you know, people's grandparents and anybody else's immunocompromised. It's your choice to let those people die because you're too selfish to get the vaccine. Yeah, no, I don't want to respect your choice. We can, like, at the very least, put a little bit of social pressure on people like this, and like insurrectionists, uh, let's up that a notch, we can put quite a bit of pressure on insurrectionist. I think that's, you, some people are a little too polite, Andrew, a little

0:44:33 Andrew: Yeah. Yeah, I know we're going to get called out as a, you know, cancel culture podcast, but yeah.

0:45:20 Andrew: Yeah yeah.

0:45:21 Thomas: Too tiptoe around the, oh, that was one of the insurrection, that's okay, that's in the past, it was that, was that was nearly eight months ago, Andrew?

0:45:22 Andrew: Yeah. Yeah. And I'm and there have been zero

0:45:33 Thomas: Ancient insurrection history, yeah.

0:45:33 Andrew: Consequences. Yeah, right. Yeah, somebody, I'm really glad to see repeated anywhere, but on Opening Arguments we've talked about John Eastman, right, the racist birther piece of garbage who has argued that you do not have birthright citizenship on the basis of, of what are almost sovereign citizen-level bad arguments. They are in bad faith, and they are, because he is a racist. He has never been kicked out of the Federalist Society. They did remove on their website the listing of him as the chair of the Federalist Societies practice group, Federalism and Separation of Powers, but they've never disciplined him or kicked him out or anything.

0:46:23 Andrew: Here's what he said on the internal Federalist Society listserv. So again, just want to emphasize this. These are other lawyers. This is the pipeline to the federal judiciary, which was virtually all of Trump's nominees and an overwhelming supermajority of George W. Bush's nominees. Right. This is.

0:46:48 Thomas: Also It's Justin and Cory, Net, that's the web the list, hey,

0:46:50 Andrew: Yeah, it it is the place where you would expect this is not Reddit is what I'm saying. So the Federalist Society listserv, he said, quote, we know there was fraud, traditional fraud.

0:47:05 Thomas: Justin, good, Justin Justin, 1239 here. I think that's that's all their usernames.

0:47:07 Andrew: Yeah. Yeah, I But no fraud. Look, Eastman said in print, quote. Quote, we know there was fraud, traditional fraud, because they put those ballots in a secret folder in the machine. They were unloading the ballots from that secret folder and voila, we now have enough folks to get barely over the finish line. We saw that happen in real time last night. This was posted during the Georgia Senate runoff, One right? Six, right. And it happened on November 3rd as well. Well, Eastman has also claimed that the January 6th insurrection was orchestrated by Antifa because, of course, he did.

0:47:24 Thomas: Yeah. Yeah. Sure.

0:47:48 Andrew: Expressing those views should get you censured, should getyou kicked out of polite society. It should not be appropriate to say, oh, well, you know, this is this is a this isa conservative group.

0:47:59 Thomas: That's politics, leave politics aside, yeah.

0:48:01 Andrew: Yeah. It is repeating not just demonstrably false claims for which there is no evidence, but demonstrably false claims that got people killed. And if there isn't punishment from that for that, just I don't know.

0:48:17 Thomas: Well, And that got lawyers, well, not yet, but hopefully disbarred. Right? I mean, it's a lawyer thingy that you're talking about.

0:48:21 Andrew: Yeah, that's right. Yeah. Yeah, yep.

0:48:25 Thomas: You would think that expressing views that were like this, was so bad, these arguments were so unsupported and they were so sinister, that that people are getting charged hundreds of thousands of dollars in sanctions, punishment, right now.

0:48:37 Andrew: Yep. And so, look, I know we don't have any influence over the Federalist Society, but when we tell you being a member of the Federalists Society should be disqualifying for serving on the federal bench, this is what I'm talking about, right? Right. It is an organization that refuses to police, that dog whistles, that gives voice, that platforms ignorant racists peddling, knowing untruths. And if I were a member of a group like that, look, there's a reason why we call out groups on the left that lie about stuff. Right.

0:49:14 Thomas: Yeah.

0:49:14 Andrew: There's a reason why we did an early episode on, hey, let's start sending money to Michael Avenatti and don't retweet Occupy Democrats and don't support the Krasensteins. And look, it is important to police your own house. And if if lawyers on the right are not policing the Federalist Society for embracing this abject garbage, then it's time for us to say that that organization is, you what it appears to be. A haven for Trump-supporting, truth-denying insurrectionists.

0:49:20 Thomas: Yeah, well, note to go out on, I guess.

0:49:49 Andrew: So sorry, we had a lot of fun in this episode and we got to do some good, too. So, yeah.

0:49:50 Thomas: No, yeah, we did. Yep, that is right. Yes, make insurrectionists face consequences again, please.

0:50:00 Thomas: Opening Arguments is brought to you by ExpressVPN. We all have things we search for that perhaps you don't want other people to know about. For mine, that's mostly disgusting health-related things for either me or my children. Don't want people seeing those search results. Having kids is a wonderful adventure. I I know most of you are probably thinking, why don't you just use incognito mode? Well, let me tell you something that you may or may not know. Incognito Mode does not hide your activity. It doesn't matter what mode you use or how many times you clear your browsing history, your internet service provider can still see every single website you've ever visited. That's why even when I'm at home, I never go online without using ExpressVPN. It provider is, ISPs in the US can legally sell your information to ad companies.

0:50:48 Thomas: ExpressVPN is an app that reroutes your internet connection through their secure servers so your ISP can't see the sites you visit. ExpressVPN also keeps all of your information secure by encrypting 100% of your data with the most powerful encryption available. Most of the time, I don't even realize I have ExpressVPN on. On. It runs seamlessly in the background and is so easy to use. All you have to do is tap one button and you're protected. ExpressVPN is available on all your devices, phones, computers, even your smart TV. Yeah. These days, every frigging thing is connected to the internet. I changed out my router the other day, as some of you may know, and I forgot how many things in my house use the internet and it was a pain, but you can use ExpressVPN on all your devices. So protect your online activity today with the VPN rated number one by CNET. Visit our exclusive link, expressvpn.com/OA and get an extra three months free on a one-year package. That's E-X-P-R-E-S-S VPN.com/OA. ExpressVPN.com/OA to learn more.

0:51:51 Clip: And thank you, Let's go!

0:51:52 Thomas: Now it's time to thank our hall of famers, our all-time greats, uh, in the revised, month, weekly shout out, where we cover a portion of our hallofamers each week to make sure we've covered everybody in the hall of fame once per month at least, so that's our new policy. I'm loving it, I'm having a great time, we still get to hear all the shout outs, which, which we never want to get rid of them, uh, but you know, we get to space it out a little bit, I think it's best for everybody, I'm enjoying it, and uh, I think it's your turn first, Andrew.

0:52:21 Andrew: Right. Thank you to one more voter suppression bill, and I swear to God, I will pull this country over to Le Do Lesbian Fabulo to Edgy Veggie to Sassy Italy Tours, doesn't know if touring is ever going to be a thing again, but we banned MTG just in case. Jennifer Tchaikovsky to D&D minus cameo question mark, to we have legal advice. If ye have coin, do not take legal advice from a coin, to mutually supported communities are harder to oppress, join or create a local mutual aid group, to the greatest science fiction series of all time is Doctor Who, and I'll take you all on one by one or in a bunch to back it up. Thomas, I have, have to confess to you, I have never seen so much as a single episode of

0:52:25 Thomas: You're not missing

0:53:03 Andrew: Doctor Who.

0:53:03 Thomas: Much no sorry sorry, Patron, I know, I know who this is, and uh, I, I love your passion for Doctor Who, I, I really do.

0:53:04 Andrew: Okay.

0:53:15 Andrew: Evie Huntington, Harvard alum, no hood. I would also like to congratulate Angus the Corgi. I watched him win in 2019 and cheered on his 2021 title defense. I love when Corgis win things, So I'm with you on that. I enjoy mocking people who mispronounce adopted French words that mean a peculiar ability, I guess, I am a fort teaser, Torsten Pial, and a Goat Asks What's Thou Like to Live Religiously, Elect Thomas Smith President, American Honkytonk Bar Association, support your local Peruvian restaurant, Alpha Kenny Body, Angry Mac Face, Penelope is Glad Sydney Got Sanctioned for Terpsichore, the Books That Burn podcast, reviewing fictional depictions of trauma since 2019, pre-pledging to the upcoming OA spinoff podcast, Andrew Reid's Sovereign Citizen Lawsuits. Yeah, you also have to be pledging to my therapy bills for that. Sorry. Support africapartnersmedical.org, providing volunteer U.S. MDs and RNs to bring the latest science to African MDs.

0:53:26 Thomas: Yeah

0:54:12 Andrew: This is not the greatest voting system in the world. No, this is just a plurality. April Poff. Don't call me a mofo. I will have you You know, I'm an ex-Mofo. I was a Mofo for sure, but I'm a Mufo no more. Murray Gregerson, over 50 lawed awful movies and you still haven't done a few good men. Yeah, that is on our list.

0:54:32 Andrew: But did you know that's like three hours long?

0:54:30 Thomas: We gotta do it yeah it's a long

0:54:34 Andrew: Anyway, it's long one.

0:54:34 Thomas: One that's the main consideration we gotta watch these, these things like two or three times.

0:54:36 Andrew: Yeah. I also have a great one that I'm going to tell Thomas as soon as this recording is over. So it will not be next month if I have anything to say about it. Looks like freedom's back on the menu, boys. Boys, definitely take not Googling advice from any kind of doctor on a podcast. Thank you, Therese. Proud sponsor of Defense Against Any Crowd Health Lawsuit. You're so vain, you probably think this pleading is about you. Put your boss on a performance plan. Pass the PRO Act. The patron names will continue until morale improves. And Jake, take it away, Thomas.

0:55:12 Thomas: And Thank you to Chris Waltrip, Seattle Pete, my employer evilly added an MBA clause after years of employment under threat of termination, interesting, uh, Christopher Brown, same, Cedar, uh, spelled C-E-D-A-R, uh, Philly live show 2022, I'll bring the cheesesteaks to the fully stocked basement bar for Platinum Night, Lawful Copter says, Andrew and Thomas, from the bottom of my heart, thank you for all that you do, oh a live show in Sydney, Australia please, I won't be vaccinated until October at the earliest, thanks government, the coin is rigging T3B with Chinese thermostat controlled by an Italian satellite, Ruth's hubris got us here, briars will seal our fate, crime or no criming, what if we tell them that ivermectin is about, isn't abort efficient, yeah. Yeah. Robert M. Well, it may, may cause infertility in men, ivermectin. It might, depending on, you know, the study needs more studies. We covered it on SIO. The study that made headlines is actually 10 years old and it's not that well done.

0:56:15 Thomas: So, but could. Anyway, Robert M., Canada has precedent saying Martians can't sue people in Ontario. I envy them. Lou, Brevity Nikoma Casca, famed soldier of fortune at your service, Black Canyon of the Gunnison live show, uh, Polly Hernandez, are just simple farmers, people of the land, the common clay of the new west, you know, morons, Emily Rainbow Spence, in times when freedom seems lost, great souls arise to reclaim it, six one four plus two red, to cast the deck box, Halifax, I still think that must be that flavor text, times and freedom seems like, so it's six, six one four plus two red, I don't know what that means, is it a six one, maybe is it that red elemental that like comes out and just, you know, tramples and hastes right away, I don't know, anyway, welcome back to the Hall of Fame, oh cool, Darth Mandy Pants, one fabulous book thrower, Jason Copas, Ian Hamilton, another Minneapolitan waiting for, for our live show in Minneapolis, hey Arizona, support Aaron Lieberman for governor, spent my charity budget for the year, need help, help, need everyone to roast the coin on Vulgarity for Charity, Metagon, seven pins, beans now shorter for your benefit, stop calling him Uncle Frank, Nate Drex has to call him dad, knock knock, who's there, Hippa Hippa, who, I can't tell you, and that's it, thanks so much hall of famers, uh

0:57:47 Thomas: I hope you're enjoying that

0:57:46 Andrew: Oh, and also, special thank you every episode to Conrad Michaels.

0:57:49 Thomas: True actually I was going to do the top 10, good reminder, uh, I can, uh, Adam Costa, if we do 11, it includes Eli, but, but I feel like, you know, it's like the 65 speed limit that you've talked about, you know, I don't, on the number, sorry, Eli, Adam, Costas, Theresa, David, and Brooklyn, and Sam Donnell, Mitchell, we all know, Aaron has a Spider Tulpa, Michael Ropps, I agree with that 100%, Sam Buck, and Conrad Michaels.

0:58:04 Andrew: Oh,

0:58:14 Clip: Sometimes you eat the bar, and sometimes the bar will eat you.

0:58:20 Thomas: And now it is time for T3BE, and I know I got it right because I did not change my mind on the answer, so it should be just formality here, just a quick, uh, quick, Thomas got it right, here we go, oh

0:58:31 Andrew: I want to say I want a bracket for a second. This is an exceedingly difficult question, a deceptive question, but not for the reasons we're about to talk about. So plaintiff. Uh sues the defendant in federal court for negligence after the defendant lost control of his car and collided with the plaintiff the defendant has an insurance policy that will pay the defense of the claim as well as most or all of the damages that the defendant is deemed liable for is that subject to discovery by the plaintif the tricky part of the question is the phrase subject to discovery. I took that direct quote. You said were between C and D on the final answers, but you were Between C, D, and A, kind of going into that before you decided to take the bold choice of it's a definite no. And I will tell you the correct answer is B.

0:58:41 Thomas: I said at the last second there could be some god I almost feel like I was remembering something about that, oh

0:59:28 Andrew: Be. So let me explain, um, and and and I will tell you that, uh, this is the- this is a question that when I first read it, I can see how, particularly in uh the short limited time, I was like, "Oh yeah, well it's probably D, right?" I'm going to explain that in a minute, um, it is a tricky question because it is the distinction between what is permissible in discovery versus what is admissible at trial. So let's work backwards. The D answer that you included as an alternative, that I think is the best attractive distractor, that says insurance policies are precluded from being admitted into evidence if agency, control, or impeachment is not an issue.

0:59:57 Thomas: Yeah admitted into evidence, that's not even what we were talking about, right, or okay

1:00:11 Andrew: Yep, that's right. As admission into evidence is considered to violate public policy. That is a correct statement of Rule 411 of the Federal Rules of Evidence. And the reason for that is, and the second you think about this, it will become obvious. Obvious, you do not want a plaintiff's attorney to be able to get up in closing arguments and say to the jury, like, yeah, make this as big as you want.

1:00:14 Thomas: Yeah yeah mm-hmm an insurance company is paying anyway, yeah

1:00:40 Andrew: The insurance company is going to pay. Why the hell does anybody here care? You know, stick it to stick it like I go. Right. So it is prohibited to introduce that into evidence. And you're like, oh, yeah. Right, that makes total sense. So then the question is, can you discover it? And the answer is that, yes, you can discover it. And the reason that you want to discover it is because in discovery, you want the plaintiff to know, like, is it worth my time to pursue this case or not? Right? Am I going to get paid at the end of the day?

1:00:40 Thomas: Like like yeah exactly yeah okay yeah

1:01:13 Andrew: And so then the, the question just becomes, do you have to ask for it, or do they have to automatically turn it over? And we amended the Federal Rules of Civil Procedure to say any insurance agreement under which an insurance business may be liable to satisfy all or part of a possible judgment in the action, or to indemnify or reimburse for payments made to satisfy the judgment, must be provided automatically without request from the plaintiff. So that's

1:01:14 Thomas: Huh yeah that's funny, I did mention, I was like, you know, B could be right if there's some rule that you do just have to show insurance, and uh, sure enough that's what it was yeah, that's it, I didn't think about the fact, okay I, I did not think about the angle of like you need the plaintiff to know whether they're wasting their time, I honestly, that just hadn't occurred to me. It's kind of cynical, I think, a little bit, you know, like in a court of law, you would think it wouldn't be so much about like, hey, make sure the person knows whether or not there's going to be any money at the other end, otherwise they won't waste the time. You'd think it'd be more about like truth and, you

1:01:46 Andrew: Right. And that's why you do it, because it's a, it, it, it streamlines litigation yeah yeah yeah

1:02:19 Thomas: Know, whether or Not the insurance policy has anything to do with someone being negligent or not, but no, no, pretty much it's just a bottom brass tax, you know, like, am I going to get paid here?

1:02:32 Andrew: And and I think that's good to remind people, right, like it is, um, hi Morgan, like this is something that Morgan and I talk about that uh when you're a young associate it's easy uh it certainly was for me um to sort of get caught up in what is the legally right answer and a large part of the practice of law is sometimes times being able to tell your client like yeah well we absolutely have the right to sue here it will take three years cost you a hundred thousand dollars and at the end of the day you'll get ten thousand dollars right

1:02:39 Thomas: Hmm. Yeah. Well, but I've always thought of that as a practical consideration, not something that would actually be in the federal rules of evidence. I just didn't, yeah, I didn't think it would be like, yeah, federal evidence say, give them the insurance so they know if they're going to get paid or not. It's just interesting. Yeah, it didn't occur to me.

1:03:01 Andrew: Yeah.

1:03:15 Thomas: Tough test.

1:03:13 Andrew: Well uh so so even though the question was wrong we all come out winners at the the end oh

1:03:21 Thomas: No, I very clearly lost and didn't even second chance it. This was, that was a tough one. I I don't know that I had any chance of, that's a tough guess, you know, especially in a situation where I've just answered two incorrectly by switching my answer at the last second from the one that I kind of was intuitively thinking. So there was no chance I was getting this. All right. Well, let's find out if anyone was smarter than I am. If we have any lawyers listening, we do. There's always somebody who gets the exact right answer. Yep.

1:03:37 Andrew: I know I know I know we do there always is and

1:03:53 Thomas: Who's our big winner this time? And

1:03:54 Andrew: Well, Thomas, I want to tell you that a lot of people got this one wrong, most people confidently picking D, making exactly the mistake that we talked about, right, that we just kind of went through with respect to admissibility versus discoverability, a handful of lawyers got B, but the person who came in first, and I think is a non-lawyer, is Chad H. on Twitter, who writes, My guess is B, with A as the second chance, reasoning, mumble mumble, subrogation, mumple mumble. Well, the reasoning isn't great, but the guess is great. And since this was an exceptionally hard one, we're going to take mumble rumble, subrogating, mumdle mumble and congratulations to Chad H for winning this week's T3BE.

1:04:43 Andrew: Everyone, let's give them a follow. Follow, they are at AgentC1983, A-G-E-N-T-C-1-9-8-3 on Twitter. And congratulations, Chad H., on being this week's winner.

1:04:56 Thomas: That's our show. Thanks so much for listening. We love you so much. Uh, delightful, delightful OnlyFans topic today. Boy, how about that Tulsa Torch? What that's that's a talented publication, I gotta say, I'm impressed. Usually you know when you see like the minor league Onion clones on online you're like all right you know, not great, but this one, man, that is that top-notch work. Well done. Right We'll see you folks next time.

1:05:13 Andrew: Right. Yeah, that there of. Yeah. Until then.

1:05:23 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.

1:05:56 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.