OA583: Republicans Creating Handmaid's Tale Hellscape

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 583. I'm Thomas. That's Andrew Torres, lawyer extraordinaire. How you doing?

0:01:25 Andrew: I'm doing great, Thomas. How are you?

0:01:28 Thomas: Doing well. Excited to get to a bunch of the stuff that we didn't have time for last episode. It's too much to cover. Of all of your items, we're probably getting to about half of it. I guess what I'm saying is there's always more opening arguments waiting in the the wings yeah Well Let's get to it. I love this note that you have in the pre-segment. It says, remember when Donald Trump sued Hillary Clinton? Neither do we, so we're not covering that then, I guess

0:01:40 Andrew: There's always room for jello. Yeah, exactly right. It's, you know, we are not covering it yet. I mean, I may, in the event that, you, the 50% of stuff that I don't get to every week, I I don't catch up on that backlog and I'm out of inspiration and we want to cover, you how Alina Haba is, you the next in line to be sanctioned and hopefully disbarred. This complaint was breaking a week ago and I was scrambling and like, oh, my gosh, everybody's going to be talking about it and no one's talking about it because it's super dumb. And so, yeah, we might talk about it. But here's what you need to know. No um donald trump is on to it we've scraped the bottom of the barrel we've punched through the bottom of the barrel. We've dug 50 feet through crap. Uh, we found Sydney Powell and

0:01:55 Thomas: Yeah we Sydney Powell, like in the Lord of the Rings, when Saruman, they're like digging the orcs out of the mountain. That was Sydney Powell.

0:02:44 Andrew: Yeah And now when Sydney Powell says, eh, I think I'm gonna give this one a pass, that's when you hire Alina Haba uh to sue Hillary Clinton over 2016 And if you're thinking that sounds super dumb, uh, it's, uh, super dumb. So there you go

0:02:44 Thomas: Wow you know I want to apologize to the uruk high community for insulting them by comparing them to Sidney Powell. I realize now that, you. That wasn't fair. Sorry, Uruk-hai. So A that's crap. All right. Well, we're not covering that.

0:03:10 Andrew: Orc orc lives matter we're not covering that so

0:03:18 Thomas: Let's get to the stuff that we're covering.

0:03:18 Andrew: There you go let's cover the stuff we are covering yeah

0:03:22 Clip: Down the law, down the law.

0:03:26 Thomas: And In less delightful news, um, covering the pending Handmaid's Tale-ization of the United States, not

0:03:32 Andrew: Um, that is, uh, Idaho having passed Senate Bill number 1309, which is modeled off of Texas House Bill 8 because, you know, it's not good enough for anti-abortion activists to wait a couple of months for the Supreme Court to overturn Roe v. Wade. We're going to start doing this immediately. And I'm going to look at a little bit of the language. But remember that the two, quote, features of the Texas House Bill 8 are, number one, it is tied to the medically, I was going to say misleading, but that's wrong. The lie as a medical proposition called fetal heartbeat, that's not what it is. The fetus has one kind of coelom tube that is potentially contracting at six weeks, and it sounds kind of like a heartbeat.

0:04:24 Andrew: So anti-abortion activists have said, see, that's a fetal heartbeat. It is pumping the blood. You know, it's just It is not a thing that unbiased medical doctors recognize. Six weeks occurs two weeks after you were missed, period, at a time in which virtually no one would know with certainty that they are pregnant. It might be a time In which you start thinking, oh, well, you know, missed I've a period. It's been a little longer than I thought. You maybe I should go buy a pregnancy test. You layer on top of that, the number of visits, the tremendous backlog. I mean, this is effectively a total abortion ban.

0:05:05 Andrew: And we're going to talk about that. Yeah.

0:05:04 Thomas: To mention that, obviously, you people aren't always regular in their cycles, you know, it's not as though every every person who menstruates has an on the dot timer. That This is just ridiculous on so many levels. Wait,

0:05:10 Andrew: Yeah, it is has now been replicated and will continue to be replicated in areas that have Republican governors and super majorities of Republicans in the legislature. So, you know, if you care about the Handmaid's Tale that we are hurtling towards, you might want to stay involved and might want to keep our eye on the ball on not allowing these kinds of horrible things to happen. Sort of important to me and important to an awful lot of folks. So here's what happened in Senate Bill 1309. And again, is rare that I focus on the legislative findings and intent section because, you know, again, this is just what lawmakers have said.

But I think it's really important to note that the more this kind of stuff gets codified into the law, the more we normalize this sort of language, the easier it is to then replicate this kind of language when a court is doing legitimate inquiries on equal protection violations, right, and trying to figure out what counts as a legitimate state interest. So, legislative findings and intent, the legislature finds and declares that the life of each human being begins at fertilization and pre-born, they deleted unborn,

0:06:39 Thomas: Pre-born.

0:06:39 Andrew: They replaced it with pre-born children have interests, Yeah, in life, health, and well-being that should be protected. Um, that's an astonishing thing to say, that, sperm meets egg, that is a human being and Um, that's what Idaho has said. Number two, the cardiopulmonary definition of death, which is the reigning common law standard for determining death, is defined as the irreversible cessation of circulatory and respiratory functions. This cardiopulmonary definition of death was included in the Uniform Determination of Death Act, a model law that was adopted by numerous medical and ethics organizations, including the National Conference of Commissioners on Uniform State Laws, the American Medical Association, and almost all states within the United States. It was, because that had nothing to do with abortion. And again, I just feel for, in the same way that 50 years have had to triple check everything they write because every single sentence is potentially going to be quote mined by creationists. You know, and if you say, you know, the majesty and wonder of creation in your article, like, that's broad sweeping language.

0:06:42 Thomas: Jeez, we're going back in time now.

0:06:54 Thomas: Now. Oh

0:07:46 Andrew: Well, similarly, medical doctors need to be extra vigilant because anti-abortion monsters are going to take perfectly ordinary statements and turn them into terrible arguments. And so, legal standards in the medical community at large both affirm that a consistent human heartbeat independent of life support is a core determining factor in establishing the legal presence for human life, a full range of circumstances for old and young alike. This is another one of these anti-abortion tropes, is they like, well, you know, you're, you're just discriminating against a person based on location or based on age. And it's like, no, that's, these, are not legally cognizable arguments, but they are what anti-abortionists think strengthens their side.

0:08:35 Andrew: The heartbeat of a pre-born child begins at a biologically identifiable moment in time that can be detected and imaged by medical equipment. A detectable fetal heartbeat and its characteristics is a key medical predictor in whether a pre-born child will reach live birth. Again, factual you statement buried beneath that, but it is twisted beyond recognition by the abusive language, which the fetal heartbeat, when detected, presents a clearly identifiable point at which the pre-born child in the womb has a greater than 95% chance of survival when carried to term. Um, that's just made up. That is a hundred percent made up. And if you've ever talked to a person who's gotten pregnant, they will tell you that that is made up.

0:09:06 Thomas: My God. That's not even, that's not even close. There's no way. I don't even need to look anything up, Andrew. That is wrong.

0:09:15 Andrew: Ask a, a person who has become pregnant, in your, your life, when they started telling friends and family that they were pregnant. The reason why couples do not run around and say, hey, you know, and describe we're pregnant again or we're pregnant for the first time is because know that there is a significant risk of miscarriage. It is not 5% after six weeks. What does it do here? Here, this language is stolen directly from Texas SB8. It says once a fetal heartbeat has been detected, again, that is defined at six weeks, except in the case of a medical emergency, in the case of rape as defined in Section 18-6101, or in the case of incest as defined in 18-6602, at least it has those two exceptions, right?

0:09:31 Thomas: Yeah. Yeah, and I just, I want to ask these lawmakers, why? Why does it have those exceptions? Under your logic, it now it's not a human being and it doesn't have a heartbeat because in those cases? I just want to know.

0:10:09 Andrew: Not. Well,

0:10:17 Thomas: I want to know, or is it the case that it's not always correct that it simply human life that it has a heartbeat that you must save? One of those two things, I want to know, yeah.

0:10:16 Andrew: Well, yeah, Are correct as a matter of philosophical inconsistency, but it leads to language like this in the act, which says, "If a woman is not a minor or subject to guardianship, then prior to the performance of the abortion." And by the way, this language is in the act. So we recognize we have talked at great length how trans men can become pregnant and how that issue has led to severe in the hospital. But I linked the article on the trans man who was, classified as obese and just left alone in the emergency room because folks didn't see that, because medical professionals didn't see it. But the language in the statute says "woman." So, "the woman is not a minor subject to guardianship."

0:11:12 Andrew: "Then prior to the performance of the abortion, the woman has reported the act of rape or incest to a law enforcement agency and provided a copy of such report to the physician who is to perform the abortion. Or, if the woman is a minor or subject to guardianship, then prior to the performance of the abortion, the woman or her parent or guardian has reported the act of rape or incest to a law enforcement agency or child protective services, and a copy of such report had been provided to the physician who is to perform the abortion." So that, one, settle in for a minute, that the the rape and incest exception is, of course, if you have fully pressed legal charges against the rapist or against the family member committing incest, which I, I don't have the words.

0:11:58 Andrew: The, of, hey, you have suffered unbelievable trauma, so we're going make sure you suffer some more before you can do anything about it. Otherwise, you will be required to carry your rapist's baby to term. To conclude that anything other than cruelty is the point. This is Section 8805. It says, "This section shall become effective 30 days following the issuance of the judgment in any United States appellate court case in which the appellant court upholds a restriction or ban on abortion for a preborn child because a detectable heartbeat is present on the grounds that such restriction or band does not violate the U.S. Constitution."

So the minute any appellate court says, and here we mean the Fifth Circuit, that the Texas HB8 is constitutional, This law springs into effect, and the professional license of any health care professional who performs or induces an abortion or assists in performing or inducing an abortion in violation shall be suspended by the appropriate licensing board for a minimum of six months upon the first offense, and shall be permanently revoked upon a second or subsequent offense. So, yeah, doctor, any performing an abortion, two strikes and you're out. Then, civil causes of action.

And here you can see the way in which Texas HB 8 has morphed in Idaho. One, any female upon whom an abortion has been attempted or performed, the father of the pre-born child, a grandparent of the pre-born child, a sibling of the pre-born child, or an aunt or uncle of the pre-born child may maintain an action for all damages from the medical professionals who knowingly or recklessly attempted, performed, or induced the abortion in violation of this chapter.

0:13:39 Andrew: B, notwithstanding any other provision of law, statutory damage is an amount not less than $20,000, 10,000 in Texas from the medical professionals who knowingly are a recklessly attempted, performed, or induced an abortion, and costs an attorney's fees. Two, notwithstanding any other provision of law, any person may bring an action under this section not later than four years following the date that the cause of action accrues. Three, notwithstanding any other provision of laws, civil cause of actions under this section may not be brought by a person who impregnated the mother through an act of rape or incest. Great. Four, not withstanding any either provision of the law, including chapter one, the court, or it may not award costs or attorney's fees to a defendant in an action brought under the section. I could go through, talk about the affirmative defenses. But, but again, this is a state that looked at Texas HB eight and said, "OK, well, let's keep the bounty hunter part."

0:14:30 Andrew: Let's double those damages. Let's give them their attorney's fee. But by the way, if it's a completely nonsense, fraudulent, mistaken lawsuit and the defendant gets a judgment, defendant does not get her attorney's fees. Of course, only the bounty hunters get get their attorney's keys. And we're going to add an additional cause of action on top of it for, you father, his parents and the busy buddy sisters and brothers of the father. I mean, just. Oh, yeah.

0:15:02 Thomas: Is There any punishment for the men who lead to these, to impregnate women too, or Is it all focused on women, weird?

0:15:09 Andrew: Shockingly, nothing in that section. You you do. If it's your rape baby, you can't bring the lawsuit. Right. So you can't get the $20,000 in statutory damages. Yeah. Yeah, it it is correct.

0:15:20 Thomas: That's The only God, This Is Unreal, what a World, these Evil people. So the only penalty is you don't get to collect the bounty, God. You know, I pointed out earlier, I think people might reasonably conclude from that it's more about policing the behavior of mainly women than it is about actual human life, you know, because the only reason to have those exceptions is, well, in that case, I guess the woman did nothing, nothing wrong, you know, in that case, in those limited cases of incest or rape. Every other case, you live with the consequences. It's hard to take any other message from that, because otherwise I don't understand. That's a human life either way, isn't it? It had a heartbeat. It's a pre-born. It's. It's all the things they said, right?

0:15:58 Andrew: Know there is no legal or philosophical consistency. It is a recognition that the first part of that argument just isn't true. And again, we've said this before. There is nobody that passes the embryo test, an in vitro fertilization clinic is burning down and you can rescue a three year old child or a tray full of fertilized embryos. And I don't know anybody who would say, oh, yeah, give me give me that tray of goo. Of Right. Course, you pick up the baby. You would probably rescue a puppy before you would rescue the tray full OF fertilized frozen embryos the arguments that are based on nothing more than intuition. Right.

0:16:50 Andrew: Because that's where this fetal heartbeat comes from. You stick a patient under an ultrasound. You say, "Doesn't that sound like love, love, love," and and they say, "Yeah, it's kind of like a heartbeat." So, you know, do you really want to strangle the heartbeat out of a, quote, preborn baby, baby? If it is nothing more than your intuition, then this seems like a baby. I think it is valid to point out that for almost everyone, no, fertilization is not when it, quote, "seems like a baby." Want to link this NPR article in the show notes that follows, actually shared this this with me, um, and it follows, uh, the through line is, is the story of a couple in Texas, uh, about to get married, and the wife was, uh, 19 weeks pregnant, and her, uh, water broke early, and the doctor said, "Look, this baby is underdeveloped." He, um, quote, "Even with the best NICU care in the world, they're not going to survive."

0:17:42 Andrew: You, as the pregnant mom, have a high chance of going septic or bleeding out, a risk of infection or hemorrhage, which could become deadly. And unfortunately, we recommend the safest course of action right here is for you to terminate this pregnancy, but we can't provide you with that necessary medical care because of Texas law.

0:18:03 Thomas: There's a part in here where they're saying they they didn't even want to talk about it. The doctors were like typing stuff on the phone and showing it to them. So they didn't say the word abortion. What the when we say Handmaid's Tale, I mean, not literally, but like it's not that far off. You got doctors acting like they're spies in the Cold War to communicate with their patients the best form of care. It's unbelievable.

0:18:11 Andrew: It Yeah, Yeah.

0:18:28 Andrew: Uh, the doctor in this article spoke to NPR on the condition of anonymity, because you have this bounty hunter situation that, that incentivizes people to read articles and then go file their lawsuits. This was talking about how do we get somebody who is facing a potentially deadly infection to a place where she can receive medical care as quickly as possible? Oklahoma and Arkansas were closest, but have a three-day waiting period, not to buy a gun, but a three-day waiting period before you can procure an abortion. So two options, New Mexico or Colorado. And the family said, you know, would we rather her going to labor on a plane or, you know, have to drive out there by car? And the doctor said, West Texas is eight or nine hours Hours of desert. Sometimes you have hours with no cell phone reception, no gas station in the middle of a medical crisis. So I requested she take a flight and make it a direct flight if possible.

0:19:01 Thomas: Oh, God. Wow. This is ridiculous. This is maddening. I know I sent you this, but I forgot, and now I'm more, I forgot how bad it was. It's hard to even keep it in your mind how horrible this is.

0:19:31 Andrew: It should be.

0:19:40 Thomas: They put a woman who was miscarrying on a plane. And look at this quote. "But even through tears, Anna says she knows she was lucky to have several thousand dollars in savings to cover the cost and to get an appointment in Colorado at all." Doing?

0:19:39 Andrew: And

0:19:55 Thomas: Doing well.

0:19:55 Andrew: I want to emphasize that last bit to get an appointment at all in every court filing in connection with Texas H.B. And related laws. The United States government has documented the effect that this law has had on every state that borders Texas and that it will have now on every State that borders Idaho. Right. Because pregnant individuals flee the jurisdiction drive to nearby states that already likely have heavy restrictions on when you can procure an abortion. And now these clinics in those states are now overstaffed and two times, three times, four times the number of patients. And so you just get this cascade effect where not only is this terrible in Texas, but it has indirectly affected the rights of women and others who become pregnant in Arizona.

0:20:49 Andrew: Like right? In Oklahoma, in neighboring states that that didn't pass these laws. This is horrifying. And and this is the tip of the iceberg. The reason we're talking about this is not to scare you, is not To cover a horrible story. It

0:21:04 Thomas: You should be scared a little bit.

0:21:06 Andrew: Is to say this is the landscape that is about to be set when you see neutral sounding words of a 6-3 conservative supermajority in a couple of months declaring that Roe v. Wade and Planned Parenthood versus Casey are no longer good law. And that there is no right inherent in the right to privacy to make medical decisions about whether to remain pregnant. They will say, look, we've and already seen this from concurrences filed to date in the actions by the Supreme Court on the shadow docket to up to decline to issue injunctive relief to stop this law from going into effect. We have seen the pitch that Brett Kavanaugh, that Neil Gorsuch are going to try out, which is, well, look, like we're just going to send it back to the states.

0:21:58 Andrew: And, you know, that's the states are laboratories of democracy. And you this is what happens when you let states be laboratories of democracy. It means if you're a middle class woman in the middle of your wedding who who is in the process of miscarrying, who are at risk of sepsis, infection, possibly death, you can scrape together the thousands of dollars you have in savings and maybe get a flight into a nearby state and maybe an appointment with another abortion clinic. Nick, do our work with the puzzle in a thunderstorm and the cognitive dissonance guys for for modest needs. Half the country cannot afford an unexpected five hundred dollar bill. Right. That is 50 percent of the population right now has zero savings, not enough to cobble together a direct first class flight at a moment's notice to go from, From, know, the middle of Texas to a nearby state that that that has fewer restrictions.

0:22:55 Andrew: This is the burden, this is going to fall disproportionately on ordinary Americans. And it's just, my heartbreak, I mean, Ted Cruz can go to Cancun, you know, whenever he wants. This will never affect Ted Cruz's family. It will never affect the people who vote for this. Um, it will only affect um real people, so uh, I'm sorry for forgetting melancholy.

0:23:16 Thomas: I agree that Ted Cruz is not a real person and I'm glad you finally said it. Yeah. Can we just codify Roe, can we codify Roe, I know, I know we've got the worst Democrats, two Democrats that are stopping us from stuff, but what are their views on that, I mean, I would, they really not codify Roe

0:23:17 Andrew: There uh Yeah. All I certainly would, would that legislation and, uh, if there is something that is worth breaking the filibuster over, be a hard argument, yes, so as far as I know, Joe Manchin, Kyrsten Sinema are pro-choice, right, we have the usual suspects, right, in Susan Collins who says that she's pro-choice, uh, and Lisa Murkowski who says that she's pro-choice, let's, you know, let's make them vote on it, and don't but the answer to that question is absolutely. Absolutely. The federal government could say we have a compelling interstate commerce need to protect this fundamental right of reproductive freedom. We have authority and jurisdiction because medical services occur across borders and could 100 percent supersede each and every state bill like Texas HB 8, right.

0:24:24 Thomas: Could they Bulletproof that with the whatever jurisdiction with stripping stuff, you know, those shenanigans.

0:24:30 Andrew: So put an asterisk by that. To we need to do a deep dive on jurisdiction stripping. It is not as simple as just you put in the law. The Supreme Court can't review this because, you think of that.

0:24:39 Thomas: That Would be a get out of jail free card. Yeah, yeah.

0:24:39 Andrew: Yeah, You could, you could take any. We will. We take Texas HB8 and make it a national bill. Right. Like, so, it, you, there's a question, question of, is the jurisdiction stripping does that interfere with fundamental individual liberties? Now, here it would promote rather than restrain that. But it's a complicated question. And and we we deserve our own episode on that. But 100 percent that provision should be written into the bill. And you just write in the standard provisions of the bill, the severability provisions. Right. That says if any provision of this legislation is declared inoperable by virtue of being unconstitutional, including without limitation, the jurisdiction stripping provisions, then the rest of this bill shall survive and shall be in full force as if that additional provisions had never been added to the act.

0:25:28 Andrew: OK, so it is not hard to to protect against the court invalidating the jurisdiction stripping provisions. And and, like I said, we'll we'll have more on that later. Yeah, but understand, it, you Democratic funk and malaise, but you are correct that there are opportunities for our party to tee up the issues that they care about and kind of put it front and center. And it feels like, are sort of demoralized and beaten up and aren't, aren't always out there fighting the good fight. And so, you know, if you've made that accusation of Democrats before, feel I you. Not shills for doing doing nothing, that uh, that is precisely the kind of thing that uh, legislators should be teeing up right now and know, make, make the other side uh declare where they stand because we Know where they stay. So, yes.

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0:27:51 Thomas: All right, Andrew, let's move on to our second kind main story today, which is the Equality lawsuit trying to challenge Florida's don't say gay bill. Now, that bill's been signed, sealed and delivered. I mean, that's that's law, right?

0:28:06 Andrew: Yes. It is law, so this was filed last Thursday, right, right as we went to press. And fortunately, I was able to go through it. We're going to use our usual opening arguments, read it backwards method. And that begins. So this is a lawsuit bringing six causes of action for declaratory judgment and relief, declaring that HB 1557 is invalid, unconstitutional, and seeking preliminary and permanent injunctive relief, preventing it from going into effect. So let's start at the signature block. The signature block is Roberta Kaplan, Kaplan Hecker and Fink LLP. And if you're thinking, "Why do I recognize that name, Roberta Kaplan," that is E. Jean Carroll's attorney.

0:28:07 Thomas: Yeah. Oh, yeah.

0:28:54 Andrew: More so than being, you know, one of the most prominent women's victims, survivors, rights attorneys. She was the lawyer who argued the case that got the Defense of Marriage Act declared unconstitutional by the Supreme Court. Immediately before the Obergefell decision. So she is if you want an equity lawyer, you want Roberta Kaplan. She is absolute best the country at litigating these kinds of cases. So, you know, not not a Kraken lawyer, not Somebody who's about to be disbarred. Are six uh counts here, six causes of action, uh, arguing that this uh Florida don't say gay bill uh is unconstitutional.

Uh, the first two in my view are very, very strong arguments, uh, and I'm about to explain why. The next four, I I will evaluate. Right, you bring all of them, right, you muster, right, every arrow in your quiver, uh, but Thomas, let let me kind, kind pitch the question to you, of the things that was viewed as a strength, uh, if you are evil, uh, of the uh Florida don't say gay bill that required us to kind of parse it carefully on this show, is that the language is super wishy-washy, right, it says

0:29:25 Thomas: Yeah. Yeah,

0:30:05 Andrew: Yeah, well, you know, what we don't want is for, you know, teachers in K to three classes to present material that is inappropriate for the, you know, you for the age of the, right, and and at no point, right, the branding is "Don't Say Gay" bill, but at nopoint in the legislation does it use uh, uh, the typical uh demonizing words, you "homosexual" and "same-sex attraction," and, what, right, it just says no, we're doing educational standards, and they've done that on purpose, right. So how would you go about approaching a law that, is that, sort of deliberately hiding what its true purpose is?

0:30:06 Thomas: Can you legally get them to say what the hell they mean? Can you get like a declaration? Can you sue to have them say like what will actually, or can you say that it's unconstitutionally vague? One or the other.

0:30:58 Andrew: You pretty much have identified the first two strategies in in the first few causes of action. So.

0:31:01 Thomas: All right. Doesn't matter what, if I got that bar question right, we're saying I credit for that. I got one out of Teresa, mark it down, mark at eight. Yeah.

0:31:08 Andrew: So count one is an argument that the statute is unconstitutionally vague. And I want to tell you, this is typically a very, very tough ground upon which to win a lawsuit unless there is a very good fit to the facts.

0:31:25 Thomas: Unless a law is unconstitionally vague, that'd be the one time where, yeah,

0:31:27 Andrew: That's right. But it but it violates the due process clause of the 14th Amendment. If a law is so vague and think about it this way. If Right. You don't know exactly the conduct that a particular law prohibits. An ordinary person using maximum reasoning is going to want to avoid the worst case outcome. And so you're like, all right, don't fully know what this is, but I'm definitely not going to do anything that might arguably come close to this. Because Right. I don'T to be arrested. I DON'T want TO fined. I donT want to run afoul of the law. And that logic is in First Amendment jurisprudence is called chilling effect logic. Right. And the idea is even if the core restriction is somehow legitimate, if we don't know what you can and you can't do, you err on the side of, all right, not getting arrested, which means that the effect of the law is to prohibit a whole bunch of legitimate speech as well as, you

0:32:17 Thomas: Yeah yeah. It's a chilling effect you might say.

0:32:24 Andrew: Yeah. Exactly. So, paragraph 205, it just expresses this really, really well. "House Bill 1557 prohibits classroom instruction by third parties on sexual orientation and gender identity in K through three and otherwise in any context where it is not age appropriate and developmentally appropriate in accordance with unspecified state standards that may go into effect long after the law does does." These key terms are all ambiguous and undefined. "The vagueness of these terms has a chilling effect on the behavior and speech of students," uh, the, and then, you know, sort of goes through, "because they're unable to determine what the law does and does not prohibit, they're uncertain about what they're legally able to say and do in class, and they hesitate to speak or participate in class out of fear of violating the law and facing discipline at their school."

0:33:12 Andrew: Roberta Caplan's case will be strengthened here by the real life example of the student in Florida who was suspended by handing out little rainbows. That was literally all the kid did, after class was hand out little rainforests. But

0:33:25 Thomas: Yeah, those aren't age-appropriate. Rainbows are some effed up, adult stuff.

0:33:26 Andrew: Yeah. Yeah. Every girl listening who had a Lisa Frank notebook in middle school is now going, "Wait a second, is, is unicorns on the list too?" Um, no, you know. So Uh, Well, Yes, Uh, the lawsuit also, in addition to having students as a part of it, has parents and teachers. So the next paragraph say the law has a chilling effect on the behavior and speech of parents who don't know what they can say. It has a killing effect on the behavioral speech of teachers because they are unable to determine what the law does and does not prohibit, uncertain about what they are legally able to say and do while teaching in school for fear of violating the law.

That seems true to me. So, uh, this, this is count one. Um, uh, and I think that it has, uh, a very high chance, uh, of success, uh, but really hinted at the, uh, second aspect. And I'm, this is 85 credit, you're like, "Can you get them on record as to, uh, you know, know what they really mean?" And the answer is we already have them on record, because Florida legislators had to sell this bill to their

0:33:39 Thomas: Are the unicorns gay, Andrew? If so, then yes.

0:34:31 Andrew: Constituents. Right? And so if you're a horrible, homophobic monster and you're going back to your constituents going, "Hey, I just got a big win for us, uh, we are no longer gonna have age inappropriate developmentally inappropriate instruction in grades 4 through 12 in public schools," your constituents are gonna look at you and be like, "Like, I don't know what that is and I don't care." And then you kind of cover the microphone and you're like, "It's about the gays." And then, "Oh, yeah, right." You have to explain the dog whistles because of how cumbersome the language is. And as it turns out, the record here is absolutely littered with overt discrimination by those who were behind this bill explaining to their constituents of Yeah, this is about stopping the gays from organizing in our rules way.

Right. So that falls under our Church of the Lukumi Babalu Aye. Right? Do do we have and this is count to equal protection clause, the 14th Amendment. Do we have discriminatory intent in how this law was passed? And again, you know, we've talked about it at some length, the Lukumi bar records real bad here. So are the 14th Amendment challenges to this legislation. And the fact that that struck you as intuitively persuasive, it struck me as intuitively persuade, I think, speaks to the strength of this complaint. The next four causes of action are, in my view, comparatively weaker, but worth arguing.

0:36:03 Andrew: And they're probably in just about inverse order. I'm going to assess each one of them. Again, all of these are valid to allege in your complaint, just in terms of their likelihood of success. I want to be honest with how I weigh the argument. So the first is it interferes with a First Amendment right to receive information. And if you're sitting there thinking, how does the First Amendment have a right to receiving information?

0:36:26 Thomas: Yeah.

0:36:26 Andrew: Yeah, here's how they back into it, back into it from a case that we have discussed before, came out just as I was entering high school, a case called Hazelwood Independent School District versus Kuhlmeier. Any politically active, or anybody who worked on a school newspaper in high school in the late 80s, early 90s knows this case and knows the citation, because this was an example of a Missouri school district that censored the school newspaper to remove two articles, one about teen pregnancy and, what, and what about divorce, okay, this was the 1980s, okay, um, as being, you know, too sensitive and inappropriate for high schoolers to, uh, to discuss We We have, we And the Supreme Court said that was perfectly fine.

0:37:07 Thomas: Oh, have we discussed this case before? Okay, yeah, sounds familiar. Wow.

0:37:14 Andrew: The Supreme Court sad, "We hold that educators do not offend the First Amendment by exercising editorial control over the style and content of student speech in school sponsored expressive activities so long as their actions are reasonably related to legitimate pedagogical concerns." Okay, so that's a pretty expansive test. And then they were like, and, you know, the whole like, "Let's not talk about divorce," and you make kids talk about things they're not ready to, that that qualified as reasonably related to a legitimate pedagogical concern.

0:37:44 Thomas: Does that make them? Were they making them talk about it?

0:37:46 Andrew: Yeah, well, they were not. This was permitting the article to go forward in the school newspaper, the two articles to go Forward in the newspapers. So the argument here in count number three is, okay, this was not a restriction. This is not a restriction that is reasonably related to a legitimate Pedagogical Concern. And you can see how that instantly, that makes it a weaker argument, right?

So A, that the negative implication becomes dicta, say, when a court says it is permissible so long as your actions are reasonably related to legitimate pedagogical concerns, that is not a holding of the contrary, right. It is not holding of these actions are impermissible when not related to legitimate pedagogical concerns. And I know of no Supreme Court case, I'm sure there are some at the state level, but I know have no Supreme court case that has ever restricted a school's editorial control for not being related to legitimate pedagogy concerns, i.e. not being about education. You could imagine this, example, suppose a school newspaper was reporting on a true story involving a administrator, you know, the principal's extracurricular activities, You right. Would say, yeah, your motivation for something is to say that the principal was convicted for running an illegal gambling ring. Right. And so the school newspaper wants to talk about it. And the principal shuts that down. That seems to be an angle where you would say this does not seem to be reasonably related to legitimate pedagogical concerns. This is you don't want to look bad in your own school newspaper.

0:39:32 Andrew: Now, the principal, right, the school is going to defend this by saying, no, no, the legitimate pedagogical concern is, you know, ensuring a healthy respect for authority within the school, you know, whatever. So, so this is a pretty broad standard. Uh, I don't know of any case to the contrary that has, uh, ruled at the Supreme Court level, uh, the conditions that they want.

Um, and and I think that the justification of "we don't want kids to hear about icky gay stuff" is, while ridiculous, ridiculous, the same level of ridiculousness as "we don't want kids to hear about icky pregnancy stuff and weird divorce stuff." Pretty right, tangentially related. The Kuhlmeier case itself was pretty tangentially related to legitimate pedagogical concerns. And and the standard is pretty low. So I find this the weakest of the six causes of action. Next is the First Amendment affirmative right to expression. This is based on the Tinker versus Des Moines case. Right.

That is the kids who wore black armbands to protest the Vietnam War. Right. And the Supreme Court said, yeah, no, students do not shed their rights at the schoolhouse gate. You have a right to self-identify and engage in protective expression so long as it's not unreasonably disruptive. That's not a bad argument here. And think about it actually interfaces with the other arguments. Right, because if I wanted to respond to this argument on behalf of the Florida legislature, I would say, well, the difference between Tinker versus Des Moines and what we're doing here is this law is aimed at conduct in the classroom itself. Right.

0:41:04 Andrew: Actual teaching and instruction. And the problem with bear, prohibiting the black armbands, is those kids were wearing the black armbands all day long. So right, in and out of class when they were engaged in, expression while at the lunch table and between classes and outside their lockers and that sort of thing. But the problem is now you run afoul of the kid who was actually suspended for giving up the little rainbows. And that helps illustrate the vagueness. Right. And the overbreadth of the law. I I think that this has a hook. But I think that this is actually going to be used to prove the other causes of action rather than being the sole way in which this is invalidated. And by the way, I gave you a hint.

0:41:49 Andrew: The fifth cause of action is First Amendment over breadth. And this is closely related to the vagueness doctrine. And it says that when you restrict a significant amount of protected speech in attempting to do a potentially legitimate restriction, that also has a chilling effect. Right. But notice that that requires a predicate finding that there is some protected speech that is being restricted here. And I think if you have that protected finding, you probably have the vagueness concerns that are illustrated that in in count one. But but the way to think about this, the most recent case, the most recent significant case that I know of involving overbreadth was a case called U.S. versus Alvarez. And it was about the Stolen Valor Act. It was made a crime to lie about your military record, right, to be a Terpsichore.

0:42:09 Thomas: Yeah. Right?

0:42:44 Andrew: And and so a guy.

0:42:45 Thomas: Good Being Terpsichore should be a crime. She sucks it.

0:42:48 Andrew: Yes. So a guy lied about having received the Congressional Medal Medal of Honor. You know, just straight up Terpsichore. Yeah.

0:42:55 Thomas: Happens all the time.

0:42:56 Andrew: Yeah, was arrested under the Stolen Valor Act, went all the way up to the Supreme Court. And this was a very typical decision in 2012. It was a Kennedy opinion where he was joined by the liberals in which they They basically offered the classical liberal John Stuart Mill on liberty defense of, yeah, OK, is there a legitimate governmental interest in making sure you don't have people running around lying, saying they got the Congressional Medal of Honor? Yep, there is. There are much less restrictive ways of getting that information. It's just like, you know, have a database, havea list somewhere that you post online that says the following people received the Congression Medal of honor, not Terpsichore Right.

0:42:57 Thomas: Yeah.

0:43:40 Thomas: End of list. Just this, that, oh.

0:43:41 Andrew: Yeah. And in the Kagan and Breyer concurrence, they said, look, there is some value in an abstract sense of this guy lying about his military record because of the collision of truth and error. Right. That's the classical marketplace of of ideas defense. And and the the dissent in the Alvarez case was written by the conservative wing of the court, Alito Scalia Thomas, because they hate free speech. Do not allow your Uncle Frank to put proud First Amendment conservatives hate free This is a direct quote from that dissent. Quote, time and again, this court has recognized that as a general matter, false factual statements possess no intrinsic First Amendment value.

0:44:04 Thomas: Yeah, because they hate free speech. Wow.

0:44:27 Andrew: Nothing. Right.

0:44:26 Thomas: That is extreme. I mean, who in the world I don't even agree with that, and I'm not a free speech, like, absolutist. Yeah.

0:44:36 Andrew: It is, again, because they define what they want as free speech on the conservative side of the spectrum and, yell loudly that if you deplatform Milo Yiannopoulos, you've infringed on free speech. But if you have passed a law that says you can't say a thing that we think is false, they think that's fine. So and that, by the way, is at the core of what the First Amendment was meant to protect. And by that, I mean, very specifically, right, like John Stuart Mill's letter on toleration proceeds from the argument against blasphemy codes. Right, because the argument you extend this argument out. It's super easy to understand it. Um, there's no value in false speech, uh, obviously the most false thing in the world you can say is that God doesn't exist, so therefore it does not offend freedom of speech to prohibit blasphemy.

0:45:29 Andrew: Again, when you read a letter on toleration, it proceeds from the idea, the defense of anti-blasphemy laws is the defense of getting rid of laws of, uh, prohibiting blaspheme, was, well, well, yeah, yeah. But, you know, think of how much more clearly you will understand the truth of God's existence by allowing these people to present their terrible arguments for why God doesn't exist. And that was how we had to get there. So, yeah.

0:45:54 Thomas: Wow.

0:45:55 Andrew: It should, should. I'm glad that, you know, you had the same level of exclamation points going off in your head when I read that. Three sitting Supreme Court justices right now have written in print and signed their names to an opinion that says if your statement is false, it possesses no intrinsic First Amendment, no intrinsic First Amendment value. States can do whatever they want. To prohibit that, keep that one in mind. Yeah.

0:46:17 Thomas: Wow. That's a joke. Yeah. It's almost like the right has never been good on free speech. And that was a sham that Dave Rubin and others concocted to try to make free speech some sort of right wing issue. Never was. They suck on free speech. They showed it immediately by passing the very bills that we're talking about right now. And yet I don't really hear a lot of regret. I don't hear a lot of people being like, dang, I was taken in by that whole free speech is now a right issue because it's not. I don't hear a lot of that. I don't know why.

0:46:29 Andrew: Yep.

0:46:49 Andrew: That's so weird. So, count number six is a Title Nine claim, and I think that this is interesting. This says that it is discrimination in public education based on sex, which includes sexual orientation and gender identity. And again, the the gravamen of that complaint is based on the Supreme Court's decision in Clayton County versus Bostock. Right, that held "because of sex" in Title Seven. Right. The analogous language includes sexual orientation and gender identity. So that, that I think is another, it's intuitively strong argument. There's very little legal support for it right now because, you know, that Supreme Court opinion is a year and a half old. But I certainly would raise that argument as well. So those are the arguments being brought against the Florida Don't Say Gay bill. They range from, you know, ones we don't evaluate super highly, to three or four arguments that we evaluate very, very highly, being brought by the most competent lawyer in the world.

0:47:45 Andrew: Um, I think, uh, this is cause for optimism, it's cause for pessimism that the law passed, we've covered that, you should have worked through that already. This is a different stage on the Kubler-Ross model. Um, we have the world's best advocate here I

0:47:56 Thomas: Is there a fight like hell stage in the Kubler-Ross model? I don't remember that one.

0:47:59 Andrew: Sure hope so. Yeah, that's the one. I'm at stage seven. Uh, but, uh, you, if you asked me to bring this lawsuit, I would say I'm gonna step aside and let Roberta take this one out. So, uh, I feel good, we're gonna keep our, uh, we're going to keep a watchful eye on it, but I, uh, think there is a very good chance, uh, that get they injunctive relief right away, right off the bat. Um, again, appellate courts are, uh, not super favorable, uh, but this, uh, feels like a pretty, pretty slam dunk case of a law that is unconstitutionally vague and overbroad in in how it restricts free speech. So we'll keep looking.

0:48:34 Thomas: So, what do you anticipate? Awesome.

0:48:36 Andrew: I think the trial court will enjoin, will issue a preliminary injunction preventing the Don't Say Gay bill from going into effect. And yeah

0:48:45 Thomas: As long as there's no courts higher than that at all, I think we're good. Is that the highest court in the land?

0:48:48 Andrew: Well I I that it's not quite but uh we will we will we will keep our eyes open

0:49:04 Clip: So we started from the bottom now we're here girl

0:49:06 Thomas: Now it's time to thank our hall of famers, our all-time greats on patreon.com/law, uh, we are on Oh man, so good, we've been waiting all month for that.

0:49:26 Thomas: Maybe I'll put a little, just a, there's just a teeny taste of that song in there. We'll see.

0:49:30 Andrew: Oh, that would make me so happy.

0:49:32 Thomas: What else might make you happy, Andrew? It's your turn. Go ahead. Go for it.

0:49:35 Andrew: All right. Well, what makes me happy are these fine individuals. WordOrigins.org has a new book, From Barflies to Bitcoin, How Words Map Our Modern Era, available on Amazon. That sounds awesome. I'm actually going to go check that out. My witty names aren't original and my original names aren't witty. False. Anonymous. Chris Waltrip. Not that Chris Wallace. Oh man, did you see the the like self-serving interview that Chris Wallace gave going to CBS of like, well, you know, I, I just did, 2021 was When I could no longer take the partisan atmosphere at Fox. Give me a break. Anyway, sorry, so not that Chris Wallace.

Emotion and Lemonade Dude. Derrick Liz. Puffy Coats or Violence W. Malcolm the Dragon. The Precious Variant. Big Easy Blasphemy. Don't read this on the pod, we don't need to call out. Thanks for what you do. Well, we're calling you out anyway. Justify My Glove. Andrelton Simmons's One-Man Tribute to Madonna. Love that. Ronda the Dork.com. A String of Unpronounceable Characters. Malika Chandler. They Said I Could Be Anything So I Became Two Princes Who Adore You. Yeah, shout out to the Spin Doctors, I've come all the way around on that now. And uh, Soggy Pants. Thomas, take away the final of

0:50:06 Thomas: Yeah. Yeah.

0:50:49 Andrew: The final quintile

0:50:49 Thomas: The final, final quid. The final. What's it? Decile? What's 10? Because I guess if we divide it in two. Yeah, there we go. And thank you to Adopt a Homeless Pet and Opposed Declawing and Ear Docking.

0:50:50 Andrew: Yes. Yeah Yeah. Classic.

0:50:59 Thomas: Day Jury Belly at Patchy Set Last Baby. Therese Chan. Heather L. You're right, this is just the best stuff. Where this, is, the yeah, Simon Garf. Central Simon and Garfunkel, this is what, this is, that's how good this is. That's high praise coming from me. I love Simon, Heather L., Matthew Vernon, yeah, Jeremiah's Fancy Microwave Emporium. Ian and Ally. Dan Irazari. Butterscotch the Cat. I, and thank you, Eli Bosnick gets to change his Patreon name because Patreon gave up on his blog too. I'm still sad about that. Adam Costa. Sorry, I'm so cranky, I'm in my terrible 30s right now. That's to Gomes, of course. David and Brooklyn. Sam Denow. Mitchell Blorco Number Five, I love that one. Michael Ropps, I agree with that 100%. Sam Buck. And the all-time great, the top, not quintile, not decile, but unile

0:51:01 Andrew: Classic These are our greatest hits. Yeah. Me too. That's one of the few things we agree on.

0:51:48 Andrew: Human.

0:51:48 Thomas: One, yeah, top human woman, Conrad Michaels, the best. How'd you know who I was going to say there? No, I'm kidding.

0:51:49 Andrew: The top human. The apotheosis of humanity. Conrad Michaels.

0:52:01 Thomas: Oh, good times. Thank you so much, top patrons. We love you.

0:52:04 Clip: Sometimes you eat the bar, and sometimes the bar will eat you.

0:52:10 Thomas: Now it's time for T3B answer time, uh wow, post office law, or was it just basic at contracts and we'll see. We'll see what happened. How did I do on my first question back on the saddle?

0:52:21 Andrew: Right, so this was a buyer mailed a signed order to a seller that said, "Uh yeah, uh, send me a thousand pens at whatever price you're currently selling them for." Seller received the order on June 1, uh, then later that afternoon, uh, mailed a signed letter saying, "I accept your offer," and the current price, by the way, two dollars a pen. Seller addressed, stamped, mailed the letter to the buyer, uh, the next day.

The buyer called, left a voicemail saying, "Oh, that letter thing, uh, disregard that, I'm going to revoke that offer." Uh, the seller listened to that on June 3rd, uh, and then on Jane 4th was when the buyer received that letter back from the seller accepting the offer. As of the last day, June 4th, is there a contract between the buyer and the seller? Um, you went with, uh, a no answer. You said no, uh, because B, which is no, because the offer was too indefinite since it did not contain a price term. Um, I am sad to tell you, Thomas, the answer is D, uh, that yes, there is indeed, uh, a contract between the buyer and the seller because the seller

0:53:18 Thomas: Hmm. Yeah.

0:53:23 Andrew: Accepted the buyer's offer before the buyer attempted to revoke it. This, this is called the mailbox rule. And it literally it is the moment you stick the thing in the mailbox.

0:53:29 Thomas: Yeah, that's what I thought. But I still yeah, I should have gone between B and D. I still stand by B. I disagree with the law here, but but I should've gone. D is my second chance answer. I just didn't like the attempted to reverse. I got thrown off by that. I guess I shouldn't have gotten thrown off by that wording. Hmm.

0:53:35 Andrew: Yep.

0:53:50 Andrew: So the Question. I will tell you that interpretation of the law is, I think B would be a very attractive distractor for a law student. Um, it would radically change the way that, business, uh, is transacted in this country. Uh, if you said the prevailing rate, uh, was not a specific enough term. Um, now I don't typically do a lot of these like open-ended requirements contracts. Um, but one of the things that I will do all the time is, um, if you have, uh, one party is financing a a part of the, uh, deal for a period of time, you might say, okay, uh, and then for any period in which the payment is not made, interest shall accrue at the then existing prime rate plus a half a percent.

0:54:06 Thomas: Well.

0:54:36 Andrew: You know that's

0:54:35 Thomas: Yeah. But that's a much more standardized thing than whatever price you're currently selling them for, okay.

0:54:41 Andrew: True. Uh, but there, uh, are plenty of cases, and I just gave that one because I I drafted a contract with that provision a couple of weeks ago. Uh, but there are, there's plenty of case law that says, um, it is sufficiently specific, uh, to name the price to say whatever price you're selling them for.

0:54:54 Thomas: Yeah. I knew it wasn't that I Said it, I said that was a zigzag zag, and I shouldn't have, but I was just, uh, yeah, I was attracted by that distractor. It was, uh, it was just too attractive. Yeah.

0:55:04 Andrew: Well Sometimes A distractor is really really attractive and you know that's uh, we've all been there, but no no regrets, yep.

0:55:09 Thomas: Hmm yep So it's when, when you drop it in the mailbox, I think that, you know, yeah. All right. Well, I was a little shaky. Just, just, just shaking off some rust. Forget all that everybody. And plus, since I answered your question in the show correctly, that's actually the bar question. So this was the pretend question. Nah, I failed. Sanctity of the game. I failed, but that's okay. It's warm up. Shake it off. Warm up question. My second chance didn't even show up.

0:55:16 Andrew: Yeah. Yeah. Yeah, it's all really a wash in the end. So there you go. Nope.

0:55:38 Thomas: Second chance.

0:55:39 Andrew: But at least you were ethically wrong on this one.

0:55:40 Thomas: Boy, Boy, I was a real Sydney pal today. Sorry about that, everybody. But at least I didn't steal anything or, you know, yeah.

0:55:47 Andrew: These are tough. These are these are tough questions with arcane rules. So I don't don't feel too bad. But now we remember mailbox rule. So 300 questions from now, six, six years in the future.

0:55:58 Thomas: Yeah, I need to, it's more now we remember that saying whatever price you're currently selling them for is adequate. That's really the thing that mattered. I fumbled on my second chance answer, but it's also because I, since I wasn't going with a non-B answer, I didn't honestly think about it too hard. So it was mainly the attractive distractor that got me. But I will remember that you can just say, hey, sell me some stuff at whatever and that's enough. And then I guess if the person says, you're in luck, I'm selling $1 million pens today. I guess you just challenge that in court and be like, that's not what they were selling them for or something. I don't know.

0:56:34 Andrew: Yeah. No, I think that's right, because think about the way in which this would unfold in real life would be, you have some kind of a uh a catalog business, or the right, like, and every week you put out a new sheet that says, all right, the price of pens has gone from $1.89 to $1 94 and, you and here, you know, you could easily imagine a buyer going like, don't, I I don't want to send you something that says, I will buy the pens for a dollar eighty nine, and then have you send back and be Like, well, they're now a dollar ninety four. And then we'd be like, fine.

0:57:06 Andrew: A dollar ninety for whatever. There Right. Should be objective indicia of, what that price term is. But I agree with you that, you Know, like if you had

0:56:44 Thomas: Yeah. Yeah, they sold one collector's edition pen pen that week for a million dollars. And they're like,

0:57:20 Andrew: Who does who does those like super nice fountain pens that, that, you know, used to get, did you ever get those as like presents from, uh, you know, collateral relatives at graduations?

0:57:20 Thomas: That's what I'm selling pens for. Yeah. Yeah. I don't know. No, I was never an attorney. So

0:57:32 Andrew: No, you've never been, you're never gotten a pen as a present. Oh, that's a, oh, all

0:57:36 Thomas: No, I wasn't an attorney, Andrew. I did not go to Harvard Law School. All right, Poindexter.

0:57:39 Andrew: Right. Wow. Uh, this is a plot point.

0:57:43 Thomas: What was

0:57:44 Andrew: That's a plot. Point in the graduate. Uh, anyway. All right.

0:57:48 Thomas: He going to school for on The Graduate? I forget. Was it law? That So I lost, I failed, I was attractively distracted. Let's find out which of our attractive uh listeners got this answer correct this week.

0:57:51 Andrew: No.

0:58:01 Andrew: Well, Thomas, I have to tell you a lot of people picked B along with you, including folks who promised they would never play T3B again if the answer was actually something other than B. Well, hopefully they'll reconsider. This week's winner, however, is Eugene, the jolly postman Flynn, who writes, "the mail and opening arguments never stop. When it gets there is a separate question. So I think D is the answer. The postmark is what counts for postal communications." I wonder if there's some kind of rule about that. There is indeed the mailbox rule. So congratulations, John Flynn, Eugene John Flyn, the jolly postman. Everyone, let's give them a follow. That is at E-U-G-E-N-E J-O-H-N F-L-Y-N N, Eugene John Flynn, on Twitter, and congratulations on being this week's winner.

0:58:53 Thomas: And that's our show, Andrew. There's so much left over to talk about. It's never, never a time when you're like, I don't know, nothing to do the show on. Hasn't happened in five, six years, not even close. Uh, That's

0:59:04 Andrew: Yeah, and we do if you are uh if you're a patron at the three dollar level or higher, I always upload my show notes and um

0:59:11 Thomas: A great point, and his show notes contained the stuff we didn't get to by the way secret, like national treasure level documents, uh that that you get to see, no that's uh, what's his name, you are thinking are you thinking, the mummy, which one, are you drinking now National Treasure is Nick Cage, right? I saw the first one, I didn't see anything. Anyway, that's what you get access to at that three dollar level, so another good reason to to be patron, but we will see you on Friday for more of the stuff we didn't get to and whatever fresh hell awaits

0:59:11 Andrew: Yeah, all the stuff we don't do, yeah yeah Brendan Frazier there we go, oh is it not, yeah, oh, that's right, I haven't seen I am thinking the mummy, oh yeah I haven's seen it, well until

0:59:42 Thomas: Us in the news. We'll see you then.

0:59:45 Andrew: Then

0:59:45 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.

1:00:19 Clip: www.openargs.com. Be sure to join the Facebook group at facebook.com slash groups slash 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.