OA648: More from the Right Wing War on Free Speech

Transcript

This transcript was generated automatically and may contain errors — the audio is the record.

0:01:18 Thomas: Hello and welcome to Opening Arguments. This is episode 648. I'm Thomas. That's Andrew Torres. How are you doing?

0:01:24 Andrew: I'm still fantastic, Thomas, how are you?

0:01:27 Thomas: Still fantastic as well. What a great answer. We record these, of course, a little bit in the past, so, you know, I'm going to allow for if some sort of bad breaking election news has come out between now and when you're hearing this, yeah, we're still fantastic from last episode, but maybe it'll be good news and we should be even more fantastic. Maybe

0:01:37 Andrew: Maybe there's a reason, but who knows? Yeah, I'm betting on the window of fantastic probabilities, which, you know, that's my, it's my new movie, Window of Fantastic Probabilities.

0:01:50 Thomas: Nice. All right. But we're not talking about the midterms What are we talking about today?

0:01:58 Andrew: Well, we are going to talk about one thing from the midterms, because I meant to mention this on Friday's episode, but we ran out of time. And that is a Maryland ballot provision, that passed 73 and a half to 26 and a half, right? So.

0:02:14 Thomas: Pretty overwhelming.

0:02:15 Andrew: With, you know, overwhelming support, this was Question One, renaming the Courts of Appeals, Special Appeals Amendment 2022, so yes, this actually amends the Maryland Constitution. It does two things, both should be uncontroversial, but think you garnered 26 and 1⁄2. So, I guess somebody will oppose something for everything. First, it eliminated a whole bunch of archaic, vestigial, gendered language in the Constitution, like Describing the powers of the governor and, you know, saying he shall blah, blah, bla. And, you, we changed that to the governor shall blah, blah, blah. What a, what an interesting proof that, like, you Don't need pronouns, huh? Yeah.

0:02:45 Thomas: Nice, yeah, boy. It is pretty wild that, like, not that long ago, that was a thing that was just, they just didn't even think about it. Like, yeah. Obviously, it's a man. Duh. Isn't that crazy?

0:03:10 Andrew: Yeah, absolutely, and so good on the state of Maryland, good on the voters of Maryland for, for fixing that, that issue. But as befits me and this show, you know, that every time I talk about a Maryland case, I have to say, and that's pending before the, the Maryland Court of Special Appeals, which is our state intermediate appellate court. It should really be called the Court of All Appeals. And then when it goes up, Maryland, one of just two states in the union, where our state Supreme Court is called the Court of Appeals. That's just bonkers. It makes everybody think that it's nuts. It was now officially renamed to the Maryland Supreme Court and the Court of Special Appeals will now be named. And this one's this one is going to trip me up for a while.

0:03:44 Thomas: Huh. Wow. I was just going to say, how long is it going to take for you to make this adjustment?

0:04:00 Andrew: You know, I'm still writing 1987 on my checks. So, you know, yeah, it will be an Ally McBeal territory. That is certainly for sure. For sure. But no, the Court of Special Appeals will now henceforth be known as the Appellate Court of Maryland, which

0:04:02 Thomas: You still think Ally McBeal is a recent show, so we'll see how long this takes.

0:04:17 Thomas: Okay, so they didn't vote that it's going to be called Cordy McCordface or anything like that? I'm surprised.

0:04:20 Andrew: No. And the Maryland what I love is my friends on the Maryland judiciary came out in favor of this act. Chief They judge of the then Court of Appeals, now chief justice of the Maryland Supreme Court. See how much better that sounds? Mary Ellen Barbera wrote, there is confusion from beyond the borders of our state as lawyers, law students and litigants research, contact and even file papers with the wrong court. That same confusion persists among Marylanders, which is a little bit of shade towards the legal community. But no, it's it's not fair to expect a lawyer, you in Tennessee or Idaho or whatever that sees, oh, Maryland Court of Appeals. And it's like, all right, well, that must be a, you an intermediate appellate decision. Right. That And is far less persuasive than a state Supreme Court opinion. So good on Judge Barbera. Good on the voters of Maryland. And we now have sensible names for our courts. I couldn't be happier. I

0:04:35 Thomas: Yeah.

0:04:53 Thomas: Yeah, all Right. No wonder you're a little, you know, know you should have been fantastic, but I felt you were a little extra fantastic and

0:05:29 Andrew: Did have a little extra spring in my step.

0:05:31 Thomas: Yeah. Just A little bit, a little bit more decibels in that fantastic, and I, uh, know why now, it's it's very warranted. It's cool when you change a really confusing name into a not as confusing name that's going to make it easier for, uh, us non-lawyers especially to understand.

0:05:31 Andrew: Yeah.

0:05:46 Andrew: Yeah, and that's the whole point of the show.

0:05:47 Thomas: All right, so that's a a mini midterm update, and now let's get to our main show.

0:05:54 Clip: So you did ask Ukraine to look into Joe Biden? Of course I did! You just said you didn't!

0:05:58 Thomas: Andrew, uh, how's Rudy Giuliani doing these days?

0:06:04 Andrew: Decomposing and I couldn't be happier. And this is part of what I love about this entire story, we have more to talk about in terms of the Dominion and Smartmatic lawsuits going forward, surviving a motion to dismiss. But but this one really hits home the, I think, breakout stars of the January 6th committee hearings. This is Ruby Freeman and Shea Moss, who put on such moving testimony. They were volunteer poll workers in Fulton County. And, you know, remember that when, you know, Uncle Frank concocts his crazy conspiracy theories, right? It's one thing to say, as does all the time, like, well, this, you know, we're not going to be beaten by the cheaters and liars.

0:06:50 Andrew: But eventually even the dumbest of your supporters will say, well who are the cheators and liars, Right. Tell me who those are. And you have to make something up. Told you a personal story, a friend of mine from high school who 9-11 truthers insist is a composite photograph that doesn't exist. That was a weird experience for me.

0:06:33 Thomas: Yeah, yeah, yeah. Mm-hmm. Yeah, no kidding.

0:07:12 Andrew: Two people who were treated about as badly as it is possible to be treated were Ruby Freeman, Shea Moss, volunteer election workers who were accused of secretly hiding votes and whatever. And so again. So they they filed claim against Rudy Giuliani for defamation, intentional infliction of emotional distress and civil conspiracy. And Thomas, I am pleased to tell you, your friend and mine, our favorite judge, the chief judge of the United States District Court for the District of Columbia, Beryl Howell, last last week, ruling that those defamation claims can go forward. All three of those claims can go forward against Rudy Giuliani.

0:07:49 Thomas: Nice.

0:07:49 Andrew: And a pretty hefty setback.

0:07:51 Thomas: Good reminder, there's so much to be angry about these days. Kind of sucks. But if you want to pay attention to politics, there is so much to be mad about. I had forgotten just truly how, not only anger-inducing, but just truly how sad that testimony was. What they had to go through. These are these are the the best of the best in terms of just civic minded people, you know, just people who volunteered, wanted to help people vote. It's not a partisan thing. You that's wouldn't matter if it was. But, you know, they just want to help especially elderly people vote and it was it was absolutely devastating. I definitely teared up when I saw their testimony, and it's really good to see some success here. And this is something. Can you give us any predictions here or how how how good do you think the news is for us and bad for Rudy Giuliani?

0:08:40 Andrew: This is the situation where if I advised Rudy Giuliano, and I guess you're getting a nickel's worth of free legal advice here, pal. There is no amount of money that I would not settle this lawsuit for if I were Rudy Giuliani. Just listen, call him up and say, OK, I am unconditionally sorry. I apologize. I do apologize. What's it going to take for this never to go before a jury? Because if this goes before a jury, the jury might Alex Jones him. Right? Right.

These are the same kinds of claims that were raised by the Sandy Hook plaintiffs against Alex Jones and Rudy Giuliani's the same level of design. It's quite the same amount of repetition, but, like, there's a lot of this repetition, right? Because it was multiple times a day, every day, this huge, steady drumbeat. And this opinion pulls no punches, right. It begins by describing the situation. It says, after the polls closed across the country on November 3rd, the first presidential election in U.S. history to be conducted in the midst of a deadly global pandemic, The results in some states were immediately called, with either former Vice President Biden or then-President Trump declared the obvious winner. In other states, including Georgia, the margins of victory were substantially closer, and voters and candidates went to bed that night not knowing who had won. As days passed, local and state election officials diligently conducted the counting of absentee ballots and manual recounts, But the void of clear results became filled with increasingly outlandish paranoia from those claiming that the election was being,

0:09:24 Thomas: Mm hmm.

0:10:13 Andrew: Quote, stolen at this. I love that. I'm only going to read the next paragraph. I could read the whole opinion. It's this level of beautiful defendant, Rudolph Giuliani, a current media personality and former politician once dubbed America's mayor, propagated and pushed that false narrative. Caught in the crossfire of Giuliani's campaign to undermine the legitimacy of the 2020 election were plaintiffs Ruby Freeman and Wondria R. Shea Moss, collectively plaintiffs. Freeman temporary election worker with the Fulton County Registration and Election Departments in Fulton County, Georgia, during the 2020 general election, while Moss worked on Fulton County's absentee ballot operation. After Giuliani made a litany of statements and accusations against plaintiffs concerning their activities as election workers, the instant lawsuit in December 2021 against Giuliani and others for defamation, intentional infliction of emotional distress, and civil conspiracy.

0:10:19 Thomas: Yeah.

0:11:08 Andrew: Giuliani moved to dismiss, and we are denying that motion to dismiss in its entirety, and it is allowed to go forward. I could go through. But again, this is just a victory for common sense. Right. There were a number of supposed technical defects involving the statute of limitations from the first time that Giuliani said something. But, you know, you don't measure the statute statute of limitations for defamation purposes from the first time somebody says something, you measure it from how the continuing for the last time that they said.

0:11:34 Thomas: Yeah, Every day of the month, Andrew, I punch you in the face for like 10 years, you can't be like, well, the first one I ever did. That's that's expired by now. So therefore, I can keep punching you as much as I want.

0:11:51 Andrew: Right. Yeah. The tort continues. And this is, I think, notable as a handbook for the way in which judges are likely to view uh that relate to the big lie right so This is Georgia and I'm waiting on pins and needles every single day for that Fulton County indictment of Donald Trump to come down right we're outside the election range there

0:12:06 Thomas: Yeah.

0:12:18 Thomas: Well, runoff though. Do you think they'll wait till after the runoff?

0:12:21 Andrew: You may. But the runoff will be done the first week of December. So, yep.

0:12:25 Thomas: That's true. That's still pretty soon.

0:12:27 Andrew: So this is unambiguous good news. Again, if I were Rudy Giuliani there, like I said, there is no amount of money I would not pay to make this lawsuit go away.

0:12:36 Thomas: Yeah. They're coming for your hair oil. You better stock up or don't. I don't know what's better. What's better in this case? All Right. Well I love it when bad things happen having a Rudy Giuliani because frankly, he really deserves it. So All right. Well, we're going to move on to our main segment, Andrew, and it's kind of related, which is the right wing's war on the First Amendment. Lots of First Amendment litigation in this episode, I suppose. How is this time the right waging a war on on the First Amendment?

0:13:30 Andrew: On which they wish to fight about this than the stage of trying to sue to intimidate journalists into silence, particularly when those journalists are expressing political opinions that are perfectly valid and need to be a part of the public discourse. And we're going to start off off with, uh, and you'll see how it connects, uh, my former law professor, Alan Dershowitz.

0:13:59 Thomas: God. So? Someone who should really know better in terms of what the First Amendment stands for. Oh.

0:14:03 Andrew: So. Someone who knows exactly what he is doing. Okay, let's start with this. On September 15th, 2020, Alan Dershowitz sued CNN for defamation. It is, and I'm going to read directly from Dershowitz's complaint. This was complete nonsense from the outset. Here's what Dershowitz says. This is paragraphs seven and eight of Dershowitz's complaint, so paragraph seven says, "The relevant part of plaintiff statement," and this was said during the impeachment hearings, "is right," this big long thing. And paragraph eight then says, "But CNN entered into a secret conspiracy with all of its reporters to only say this part." And this is the part that you may in fact have heard.

0:14:51 Andrew: Alan Dershowitz, When asked about the propriety of impeaching President Trump over withholding aid to Ukraine, conditioned on President Zelensky announcing an investigation into Hunter Biden, Dersh said this. Every public official that I know believes that his election is in the public interest. And mostly you are right. Your election is In the public Interest. And if a president does something which he believes will help him get elected in the public interest, that cannot be the kind of quid pro quo that results in impeachment. As a result, everybody basically came out with stories that say Alan Dershowitz has lost his goddamn mind.

0:15:33 Thomas: Could that be because he's lost his goddamn mind?

0:15:36 Andrew: Might be right. Dersh says that the conspiracy here was that CNN ignored the fact that that came after several minutes of burbling. And I'm going to read only some of it to you that began with "the only thing that would make a quid pro quo unlawful is if the quo were somehow illegal." Never minding the factthat that sentence, I can't even parse today what that sentence is supposed to mean, uh, and it is completely in inarticulate, uh, and, um, impossible to decipher. That wasn't said immediately after the public official thing.

That that then had a bunch of stuff in the middle, uh, that had, uh, now we talk about motive, there are three possible motives that a political figure could have. One, a motive in the public interest, and the Israeli argument, and that's not important what that is, would be in the public interest. The second is his own political interest. And the third, which hasn't been mentioned, would be his own financial interest, his own pure financial interest, just putting money in the bank. I want to focus on the second one for one moment. "Every public official," and then it goes into the statement.

So this statement got analyzed on CNN, uh, and reported widely as not just "Alan Dershowitz has lost his goddamn mind," but basically a version of the Frost-Nixon statement, right? Like, when the president does it, it can't be illegal, right. And Durst says, no, but look, like a paragraph and a half earlier, I said it could be illegal if the underlying quid was itself illegal, legal, leaving aside that that makes

0:17:09 Andrew: Virtually no sense, um, this, is an incredibly strange basis to try and sue someone for defamation, right? You defamed me by publishing my words, and by in fact publishing a minute-long segment of his, right, like, they left a huge chunk of this, like eight minute thing of word salad, intact. And I have no idea how a news organization could possibly know, like, well, how much context do you have to give? So, right.

0:17:17 Thomas: Yeah. Yeah. Yeah.

0:17:41 Thomas: You know how I know this lawsuit is complete BS? If this were actionable, then all of, not only, especially Fox News, but basically all of media would be illegal, because, like, or at least tortious. Because, taking someone out of context, are we saying that's going to be like an actionable thing? Like, they can get sued for taking someone out of context? Are you kidding me?

0:18:04 Andrew: You might think that, again, I'm being uncharitable to Alan Dershowitz. Why don't I read paragraph eight again of Dershowitz's complaint? Quote, following the airing of that clip over and over again, the hosts, together with their panel guests, including CNN employees and paid commentators, exploded into a one sided and false narrative that Professor Dershowitz believes believed and argued that as long as the president believes his reelection is in the public interest, that he could do anything at all, including illegal acts, and be immune from impeachment. The very notion of that was preposterous and foolish on its face, and that was the point to falsely paint Professor Dershowitz as a constitutional scholar and intellectual who had lost his mind.

0:18:52 Andrew: With that branding, Professor Dershowitz's sound and meritorious arguments would then be drowned under a sea of repeated lies. That's Dersh's argument. And so, as you might imagine, CNN filed a motion to dismiss back in 2020.

0:19:08 Thomas: Again, Fox News exists. Like there's, come on, what? That's literally everything they do is far worse than this. So that tells me maybe there's not much merit to this, Andrew.

0:19:13 Andrew: Yeah, I think you'd be right. Except that CNN's motion to Dismiss was denied. It

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0:21:57 Andrew: The pleadings in discovery with alternating between producing documents and various CNN officials having to appear for depositions. And it's just, an unbelievable amount of expense that's been incurred in a completely frivolous lawsuit. And that has led to the pending motion for summary judgment that has been filed by CNN. But I have to tell you, These parties are proceeding as if they are going to trial on this issue. And that's bonkers.

0:22:31 Thomas: Yeah.

0:22:31 Andrew: The idea that it was implausible. And CNN pleads the correct standards in the motion for summary judgment. Right. That is the only real question. Well, actually, they played a couple of things that I think are.

0:22:45 Thomas: Yeah, feel like there's a lot of in the alternative thing you could do here because there's 10,000 different reasons why this is stupid.

0:22:47 Andrew: Yeah. Yeah, my favorite is the one that is the very last alternative. But it's flagged early on like this, because, again, remember, to prevail in a case of defamation, you have to show damages. Right. Right. And CNN's argument is by his own admission, Alan Dershowitz has been the subject of public scorn long before we got here and will continue long after we're gone. Quote, plaintiff's reputation had already been damaged by the years of accusations of sexual assault by one of the victims of plaintiff, former client Jeffrey Epstein, which he testified already, quote, destroyed his entire legacy and quote, entire reputation. End quote.

0:23:33 Andrew: By the decades of criticism about his willingness to represent people like O.J. Simpson or Klaus von Bulow and by his self-described canceling for defending President Trump beginning in 2017, he will never be able

0:23:14 Thomas: Yeah. Yeah. Yeah. Can you double destroy a legacy?

0:23:48 Thomas: Boy.

0:23:48 Andrew: To carry his burden of demonstrating that CNN's alleged defamation, as opposed to those events, caused him his alleged harm, which independently defeats his claim. And in addition to I love the, you know, hoist on your own petard nature of this, is another thing. Every time we're interacting as lawyers or connoisseurs of law media in this strange new world of nonsense, look for ways that people try and integrate utterly unexpected with your existing practice, is. And CNN's lawyers are absolutely correct here that if somebody has been running around yelling about how they've been canceled and they say that sort of thing all the time.

0:24:02 Thomas: Yeah. Yeah. Like Two or three different cancelings, by the way. He's been somehow he's been fully canceled two or three times for different reasons. Wow, impressive.

0:24:37 Andrew: Right. And that's because that's what the right wing does. Right. Like everything that happened. This is the worst violation of the First Amendment ever. I've been cancelled. Well, well, OK, you got to parse through that. But that seems to provide a pretty strong basis to think that subsequent claims of defamation are not going to be able to prove any injury? You already had the worst canceling anyone could have when X happened. So I love that for all of those reasons. Then we look merits at the of the defamation claim, and CNN notes, there is nothing in the record, let alone clear and convincing evidence, showing that any CNN witness in fact entertained serious doubts as to the truth of CNN's reporting. To the contrary, every person involved in either editing the clips or making the statements testified that they believed that the clips and statements were fair and accurate, and had no doubt on that front having watched plaintiff's entire response.

0:24:40 Thomas: Yeah. Yeah.

0:25:36 Andrew: In light of these professions of good faith, summary judgment must be granted unless plaintiff, that's Dershowitz, can point to clear and convincing evidence that the statements were, quote, fabricated by the defendant, the product of his imagination, or based wholly on unverified anonymous telephone call, or that the publisher's allegations were so inherently improbable that only a reckless man would have put them in circulation.

0:26:02 Andrew: And, again, that's correct, right, that that is the standard for defamation of a public figure, uh such as the reporters on CNN, well, such as Alan Dershowitz. Yeah.

0:25:58 Thomas: This is ridiculous again Yeah, he's definitely a public figure. I was gonna say that. And so are we to believe that possibly quoting him out of context and and misunderstanding his argument is on the same level as Hillary Clinton had a monkey baby or whatever the example you always bring up is.

0:26:27 Andrew: That and this is why the Republicans game it's why Clarence Thomas has said now in multiple dissents, well, maybe we should revisit New York Times v. Sullivan.

0:26:36 Thomas: Oh my God.

0:26:37 Andrew: Maybe we should make it easier for for powerful people to sue the press for their opinions. And yeah, I don't think Alan, who knows? I don't think Alan Dershowitz expected to win this lawsuit. I think he drew a Trump friendly monkey at the very start and, is now in a very, very good position to either continue to litigate or, you extort the settlement from CNN or to have this thing go to trial. And again, like, cannot imagine that a jury would not look at this and just laugh Alan Dershowitz out of court. But, you know. As a defendant, you're skeptical, right? You look at it and you go, man, it only takes one. I mean, Alan Dershowitz is a pretty unsympathetic plaintiff. But, um.

0:27:23 Thomas: Yeah.

0:27:23 Andrew: But we will see. I also like this, which is you're talking about you should have known to give my comments the full context. CNN says Dershowitz himself admits he misspoke when he said that an illegal quo could make the quid pro quo unlawful, but said nothing about what would happen if the quidd were illegal. And plaintiff could not adequately explain the distinction he was trying to draw between unlawfull and illegal. Legal It's no wonder then that CNN's witnesses found that line confusing and pointed that out at the time. That it's a nonsensical tautology. Far from clarifying his answer, the illegal quo line only made it murkier. Even if that line made any logical sense, it is not at all apparent, and certainly not explicitly stated, that the single line stated once at the beginning of his five minute long response qualified, uh, for, you know, this larger argument that he thinks he's making.

0:28:17 Andrew: As Anderson Cooper aptly summarized, if qualify at all with that sentence, he would have put them together, end of quote. The two are in entirely separate paragraphs, separated by a discussion of motive, and plaintiff never said that the illegal quo line overrode or was even connected to his broader argument that a politician acting in his own electoral interest would make impeachment improper. So let's look for this will certainly make the press as to whether this case goes to trial or whether there is a summary judgment granted in favor of CNN. They should win on summary judgment, but who knows?

0:28:54 Thomas: Yeah, I mean, is it the same a-hole judge, or how does that work? When do we get a saner judge?

0:28:58 Andrew: Oh, Only if CNN loses a trial and appeals. So same judge, entire proceeding. So if I told you that Donald Trump sued CNN a couple of weeks ago and also sued in the same judicial district, the United States District Court for the Southern District of Florida, and, could draw any one of 15 judges from the pool. Oh, yeah. Who do you think Donald Trump managed to draw?

0:29:06 Thomas: Yikes.

0:29:24 Thomas: Fifteen. Any of the other fifteen that I haven't heard of, or I guess thirteen at this point? It seems like there's two that I know of. This district isn't sending their best. I feel like we should get rid of this one and just you know, scrap it, replace it with real judges.

0:29:38 Andrew: Yeah, I think you're right. So, yeah, did not draw Eileen Cannon, his handpicked lackey who has somehow managed to screw up the Norilago case, but did in fact draw this same judge, Raag Singhal.

0:29:48 Thomas: Oh, geez. I had such good odds. I had 13 out of 15 odds, whatever that percentage is, anybody else, and I still lost.

0:29:59 Andrew: I know. Anybody else? Yeah. Yeah. Now let's look at Donald Trump's allegations because they are no more or less crazy than Alan Dershowitz's paragraph

0:30:12 Thomas: That's saying something about how stupid Alan Dershowitz's claims are. Yeah.

0:30:17 Andrew: CNN has published and broadcast the term "the big lie" in relation to the plaintiff, Donald Trump, repeatedly, both in articles on CNN dot com, as well as in broadcasts on its news channel and streaming services. This is, that's paragraph 38, paragraph 39. CNN has acknowledged that the term "the big lie" is a direct reference to Adolf Hitler and Nazism and uses the term in relation to the plaintiff to create a false and incendiary association between plaintiff and Hitler. Hitler, paragraph 41, these defamatory statements, which associate the plaintiff's character with that of Hitler, are reasonably understood to be statements of fact as opposed to hyperbole or mere opinion regarding the plaintiffs and were reasonably understood by readers and viewers to be statements of a fact and not hyperboley or mere opinion.

Readers and viewers understood that the plaintiff would be Hitler-like in any future political role. So there you go, because Donald Trump has engaged in the big lie. And because CNN has appropriately analogized that to Adolf Hitler's use of the big lie, that is, openly stating a thing that is, that, you know, to be false in order to rally your idiot base and consolidate political power, they are now the subject of a defamation suit that appears to be based only on actual facts that have been asserted. It, um, and the terrifying thing here is that, you know, yes, these cases, uh, should be cleanly thrown out under New

0:31:46 Andrew: York Times v. Sullivan's Singhal, um, failed to throw out the Dershowitz complaint. I, CNN's answer is not due for a couple of weeks, um, and I say answer, but they also could file a responsive pleading. I suspect that they will move to dismiss, uh, but, but they've been in this court with this judge on a defamation claim right now, and so they have to be feeling pretty demoralized about that result, fits in with the right's greater aim of overturning New York Times versus Sullivan. And have some specific evidence for that, right? That the cases that Donald Trump cites, uh, in the complaint are pre-New York Times v. Sullivan cases. They specifically tackle this issue.

0:31:45 Thomas: You would think, wow.

0:32:32 Andrew: This is teeing up, I think, a long game to get before the 11th Circuit and then before the Supreme Court, the question of revisiting the standard that says you have to meet the burden of actual malice to defame a public official. So if you look at page 25, footnote 42, the complaint says, while the allegations in this complaint meet the actual malice standard set forth in New York Times v. Sullivan, that standard does not and should not apply where the media defendant is not publishing statements to foster debate, critical thinking, or the unfettered interchange of ideas, but rather seeks to participate in the political arena by offering propaganda. And then see Roth v. U.S., a case from 1957, right, a pre-Sullivan case, noting that the protection to free speech and press was fashioned to assure the unfettered interchange of ideas.

0:33:25 Andrew: We go back to this is Trump's lawyers arguing the irresponsible use of false, misleading and inflammatory language in an effort to destroy a political opponent's reputation cannot be categorized as an intellectual exchange of ideas, In other words, whenever a media source attacks a politician, standard say that no longer counts as free speech. So let's have a little bit of skepticism about Uncle Frank's hashtag 1A forever in

0:33:42 Thomas: Well, a Republican politician, Yeah. Oh, on one hand, this is scary stuff because it's so outrageous and counter to everything you would think is an American value of free speech or anything. On is the, so ridiculous, I know we've talked about how the court, especially in these religious cases and these separation cases, the court is entirely willing to just be a hypocrite and just rule one way, heads I win, tails you lose kind but this would be so ridiculous. Like you would, you would have 20 million lawsuits a day for just what Fox News says, right? I mean,

0:34:38 Andrew: Oh, yeah, it would, it would completely, again, but the right is willing to lose Fox News as an authority. In fact, they've already jettisoned them in favor of OAN and Infowars and everything. The idea is to level everything downward, right? This is one of the things I said when, Elon Musk first proposed the, like, well, why doesn't everybody just buy their own blue checks, right? And, and, yes, there was some level of like desperation of wanting eight or $20 a month from everybody, but there's also playing into, right, as he's trying to pacify, uh, the only public supporters he has left, right, you know, Trumpian morons, uh, to to play into their world view where academic research is on a par with, well, I just spent a lot of time on YouTube watching you know, some guy explain how the earth was flat, right? Like it's a great leveling of authority, and it's, um, one of the many things that I'm terrified about in the medium to long term, right?

0:35:34 Thomas: Am I misunderstanding, though, like, pretend this reasoning becomes the new law of the land, I mean, doesn't that open up just like an infinite number of lawsuits?

0:35:44 Andrew: I, think that's right, but, but again, it becomes profitable to sue only those major outlets who can afford, right, to pay your judgments.

0:35:53 Thomas: But you can't get like injunctive relief to get people to stop saying stuff though, Well,

0:35:57 Andrew: Prior restraint is really, really hard to sort of get. That, I'm glad you asked that question. Right now, there are, I know of only one line of Supreme Court cases that allow for prior restraint, that is, actually stopping somebody from saying a thing in advance before the information gets out, and those are military secrets cases. Right.

0:36:19 Thomas: Doesn't even have to be in advance necessarily for what I'm talking about.

0:36:21 Andrew: Yeah. Other than that then then essentially what you're talking about are damages. Right. You're talking about requiring outlets to to retract a piece that is defamatory. And you know, yeah. Can you, can continue to engage in civil disobedience. Can you, you know, maybe strice and affected. Don't I know. You know what I mean. Like, thinking about it, how to survive in that universe, I can tell you that the far more likely outcome, particularly, you the Trump suit names, right, individual CNN journalists. And so, yeah, you're thinking of criticizing Donald Trump. Well, you know, if they, if they change those rules, you will think long and hard about whether you're going to criticize Donald Trump again. And that, I think, ties in rather nicely to I have been wanting to work in the facts of the underlying case for the Onion amicus brief that Yeah.

0:36:31 Thomas: Yeah. Oh, yeah, that's right. Yeah.

0:37:19 Andrew: So we read a little bit of the punch line. But again, I want you to understand just how bonkers this opinion was from the Sixth Circuit. It was written by Trump appointee Amul Thapar, who was on the shortlist for the Supreme Court. And so this is somebody that conservatives think he's got a long and rich pedigree. He is academically qualified, as was Neil Gorsuch, as well as Brett Kavanaugh. And this is 100% core free speech that that somehow Amul Thapar and the Sixth Circuit said, no, it isn't. Here's So what happened. You have a guy named Anthony Novak in Parma, Ohio, and he created a parody page to mock the local police department.

0:38:06 Thomas: Oh, Yeah.

0:38:06 Andrew: I'm going to quote from the Onions Amicus brief here.

0:38:35 Andrew: Teens for free in a police van, the department was soliciting job applicants, but that minorities were, quote, "strongly encouraged not to apply," and that the apartment was banning city residents from feeding homeless people in, quote, "an attempt to have the homeless population eventually leave our city due to starvation." Okay.

0:38:53 Thomas: Yikes. Satire.

0:38:54 Andrew: Right parody. Um, I think this is actually the funniest part. And now I'm quoting from the Sixth Circuit. "Once the department heard about the page, it sprang into action. First, officers verified that the official page hadn't been hacked. Then they posted a notice on the department's actual page, confirming that it was the official account and warning that the fake page was being investigated. Novak then copied that notice onto his knockoff page." Now, that's some funny stuff, right? That is legitimately hilarious. Uh, the police department then went on TV and announced that they were investigating the page.

0:38:55 Thomas: Yeah. Oh,

0:39:29 Andrew: So Novak took it down. Yeah.

0:39:29 Thomas: My God. Police are famously able and willing to take a joke. You know, they're just don't take themselves too seriously. Those those folks. This episode is brought to you by the Jordan Harbinger Show. You need another podcast in your life, and let's face it, we all do. The Jordan Harbinger Show features in-depth interviews with some of the world's most fascinating minds, diving so much deeper than any other interview that you've usually heard with those people. It's so clear that Jordan really goes into the weeds preparing for the interviews, and there are way too many interview-style podcasts I would never recommend or are kind of a waste of time, but this one is not. Every Friday, Jordan also releases a Feedback Friday episode to respond to listener questions, covering everything from conventional problems like leaving a dream job to doozies like helping someone escape an abusive relationship. Here's recent show I love. It is 745 Dave Farina. He's the Professor Dave Explains YouTube channel. Great stuff.

0:39:35 Andrew: Yeah um

0:40:27 Thomas: I love his book. It's called Is This Wi-Fi Organic? A Guide to Spotting Misleading Science Online. So check out that one if you'd like to get into the show. All that and so many more episodes. There's something for everyone on on The Jordan Harbinger Show. So search for The Jordan Harbinger Show. That's H-A-R-B as in boy, I-N as in Nancy, G-E-R on Apple Podcasts, Spotify or wherever you listen to podcasts.

0:40:53 Andrew: In totality, Novak's page was up less than 12 hours from start to finish. Yeah. That's it. It resulted in 12 calls to the department by, know, by various Karens who called in on the police's non-emergency phone line asking if it was real, right? So that's it. That's that the net result. That then it came down, and then, because again of the uh famous police ability to take a joke, the Parma, Ohio police department went after Novak. They charged him with violating Ohio code 2909.04B, which makes it illegal to knowingly use a computer to disrupt or impair police functions. They arrested Novak. They searched his apartment. They seized his phone. They took his laptop. He spent four days in jail before he made bond. The prosecutors then took the case to a grand jury, and the grand jury indicted him for disrupting police functions He went to trial and was, of course, acquitted, because, you jury of

0:40:58 Thomas: Oh, wow. Yeah. The

0:41:53 Andrew: Your peers.

0:41:53 Thomas: First Amendment.

0:41:54 Andrew: So the law is crystal clear here. Protected constitutional rights cannot be the basis for probable cause. So Novak sued the Parma, Ohio Police Department for the search and seizure at his apartment under 1983. They violated his constitutional rights. That judge should never have signed off on a search warrant where the basis of the search warrant was, yeah, you posted this thing mocking the police department. Of course he did. Right. That was the whole point. And this should be a slam dunk, except that the Sixth Circuit now invented a bizarre set of reasons to shield the officers from liability because nonsense. So some of that was criticizing Novak for not having put an explicit disclaimer on the Facebook page and the fact that he was deleting comments when people would come in and just like comment on the thread and be like, this is fake. Right. You know, he would delete those. And that is the basis of the cert petition to the United States Supreme Court for review of the Sixth Circuit opinion.

0:42:08 Thomas: Yeah.

0:43:00 Andrew: So the Sixth Circuit opinion said we hold that there is immunity for the police officers, right, that it was a good faith execution of a search warrant on the basis of submitting for probable cause someone's parody because he did not use the words, this is a parody. And that's why the Onion sprang into action, because, right, if the new law of the First Amendment, as it is in the Sixth Circuit as we speak, as we are dependent on Donald Trump's Supreme Court, God help us, for overturning that opinion, right, if the law is parody must say, hi hi, I am a fakey fakeo and this is a parody account, that kind of cuts parody off at the knees, right?

0:43:47 Andrew: And that is the point of the brief. I included it last time maybe, and I will again, some other parts of it because it's really, really funny. But it is also really dead on as a piece of legal analysis. As, as the Onion's brief notes, the Sixth Circuit's ruling imperils an ancient form of discourse. The court's decision suggests that parodists are in the clear only if they pop the balloon in advance by warning their audience that their parody is not true, but some forms of comedy don't work unless the comedian is able to tell the joke with a straight face. Parody is the quintessential example. Parodist's intentionally inhabit the rhetorical form of their target in order to exaggerate or implode it, and by doing so, demonstrate the target's illogic or absurdity. Put simply, for parody to work, it has to plausibly mimic the original. The Sixth Circuit's decision in this case would condition the First Amendment's protection for parody upon a requirement that parodists explicitly say up front that their work is nothing more than an elaborate fiction. Um, that's a really damn good argument.

0:44:15 Thomas: Yeah. Yeah.

0:44:54 Andrew: And, uh, bothers me that it's also really, really funny because, you know, making prescient and trenchant legal arguments while also being funny is kind of our job, right? Right. Like the onion can be funnier than us, but they're not supposed to be both funnier than us and as good as us at the law. I think I think we should.

0:45:11 Thomas: Yeah. Let's sue him. Yeah.

0:45:15 Andrew: So I'm going to read from the conclusion because I know I didn't read this last time. And it's rather similar to a speech that I've given. But conclusion, this is the 15th page of a convoluted legal filing intended to deconstruct the societal implications of parity. So the reader's attention is almost certainly wandering. That's understandable. So here's a paragraph of gripping legal analysis to ensure that every jurist who reads this brief is appropriately impressed by the logic of its argument and the lucidity of its prose. Bona vacancia, de bonus asportatis, writ of certiorari, de minimis, ius accredensi, forum non conveniens, corpus juris, ad hominem, tu quoque, post hoc ergo propter hoc, See what happened?

The brief itself went from a discussion of parity's function and the quite serious historical and legal arguments in favor of strong protections of the parodic function to a curveball mocking the way legalese can be both impenetrably boring and belie the hollowness of a legal position. That's the setup and punchline idea again. It would not have worked quite as well if this brief had said the following. Hello there, reader. We're about to write an amicus brief about the value of parody. Buckle up, because we're going to be doing some fairly outre things, including commenting on this text form itself. Taking the latter route would have spoiled the joke and come off as more than a bit stodgy.

0:46:43 Andrew: It's So good.

0:46:41 Thomas: Wow. That's brilliant. I love that. There's a reason why like 50 people emailed us wanting us to go through this in more depth.

0:46:45 Andrew: Yep. And I am sad to say, because of our backlog, uh, that our buddy Legal Eagle did a fantastic video, uh, that I have, uh, made sure not to quote any of the bits that he quotes in his video that I was originally gonna quote in our show to go first. But, you know, uh, we'll, link that in the show notes as well, because, uh, it is, uh, both funny and the, the usual quality it stands to get for him. But, uh, but I thought that, uh, we could revisit and talk about the, uh, larger battle that's going on out there, folks. And that is a war, a dedicated multi-front assault, uh, by conservatives to diminish the power of the press, uh, and that includes fighting with big media like CNN, uh, but also taking on, you know, the, the guy making fun of the cops in the basement, on, in his basement, on Facebook. Yeah, so, is the opinion of the Sixth Circuit. We are rooting for the Supreme Court to grant certiorari here. If they do not, it will be the law of the Six Circuit.

0:47:36 Thomas: Ridiculous. But this is really... This was granted cert? Oh, yeah. Sorry. Oh.

0:47:50 Andrew: Until the Sixth Circuit comes up with some better reasoning. We're awaiting at least four votes from a Supreme Court that has six atrocious human beings on it, pick up this case. And again, remember, know, Clarence Thomas is a validly anti-First Amendment. I don't know where the rest of the Howler monkey contingent sits. But this one, we have to root for cert.

0:47:51 Thomas: Gotcha. Gotcha. So Wouldn't hold up much hope for Alito, given that he complains constantly about people being too mean to him. This is, uh, wow.

0:48:17 Andrew: Yeah. Yeah? This is, this is the future that the Republicans want, a right? Future in which, you can claim for the First Amendment right to, you know, use the N-word to scream at people in public. But if they say something mean about Donald Trump or the police, they can send the power of the state after you. Remember, this guy had to go, not just had his stuff ransacked by the police, but had to go to trial over posting a parody page on Facebook.

0:48:50 Thomas: Should Get a billion dollars from these assholes.

0:48:50 Andrew: Yeah. And and that Sixth Circuit said nope, police are immune.

0:48:57 Thomas: That's horrible and horrifying, and I hate to have to be rooting for the Supreme Court, so that that puts me in uncomfortable position, but, uh, I guess I will, I'll hope they, uh, find their senses here. Yeah. And

0:49:07 Andrew: That's all we can do.

0:49:09 Clip: Thank you for being a friend, yeah, travel down the road with me, say we started from the bottom now we're here girl,

0:49:18 Thomas: Now it's time to thank our Hall of Famers, our all-time greats on patreon.com/law. This is the second quartile and I'll start us off. Thank you to A Streetcar Named Deez Nuts is going on hiatus but will still be a supporter, Inspired Zombie, That's a good dad joke. I like it.

0:49:56 Thomas: Patreon name has been scrubbed due to a scheduled Patreon donation as per USSS protocol, Chrono got railroaded in his princess kidnapping trial, checklist pro pro pros checks lists for pro say checklist, that's a, I don't know if that one fully works, but people are really trying the tongue twisters this time, Dr. Scoop, Little Doug and Heather, Mr. and Mrs. Pusher, Mrs. Pusher raised on Olympia beer, Mr. Pusher unfortunately raised on Jenny Cream Ale or Genny Cream, it's a G, I'm not sure

0:50:28 Andrew: It's it's Jenny. It's Genesee Brewing Company.

0:50:28 Thomas: Uh Okay. Um, Legal Eagle's Legal Beagle is not a beagle, hashtag Legal Eagle Beagle Gate, this that thing in the attic, scarf season is coming, Kelly Wove it.com, yeah check out kellywove.com, at 410, the Baltimore area code, Sean, so that must be a Twitter handle, maybe at 4 10 Sean could be Insta, who knows, giant alligators, hear me out, golf courses in Northern Virginia have, have a law to offer, for a fun fantasy story read The King's Zone by W. Marshall, out now on Amazon, the fat Jedi eating cake and drinking Emperor's Brewery beer in the Death Star canteen, liberals own guns to support root cause mitigation, not ineffective gun control, oh, a Chicago live show, you bring the law talking guys, I won't bring ketchup for the hot dogs, I, okay, I don't eat hot dogs, although they have fake ones that I eat, am I crazy for liking both ketchup and mustard, I like them both

0:50:37 Andrew: Oh, don't, you know, I think that's perfectly reasonable, but you have to have some mustard, right? You can't just drown it in ketchup. Yeah, right.

0:51:22 Thomas: Yeah. Yeah. You have to have mustard. The the mustard is the more important condiment. But

0:51:30 Andrew: There we go.

0:51:30 Thomas: People are, there's too much of a backlash, you know? There's the overreaction to the ketchup. Look, a little ketchup, nothing wrong with it. Brings another bit of flavor to the hot dog. Okay, I'm glad you agree with me. Daniel at Duncan4SC on Twitter, a state politician, getting around ad rates one month at a time. Well, given that we just had election day, I hope you did well, Duncan. Daniel at Dunkin. Zach Bloom, Hamburger Santa never left, but now we have to do a shout out. Tell Morgan, get Tom's son and Ray. Your turn, Andrew.

0:51:30 Andrew: Yeah.

0:52:03 Andrew: And thank you to help. I'm stuck in a podcast factory. Behind the Bastards for part on Clarence Thomas is epic. Pizza School. The corgi is not a medical professional, but thinks you should ask your doctor if more corgis are right for you. You, yes, that is the answer. That is always yes. Legal Eagle is so handsome. Praise be unto Hamilton. Crazy Animal Lady has given up on changing her Patreon name, Just Take My Money. The Smiths. Budget Botanist on Fiverr. Hey, welcome back, Budget Botanists on Fiverr. For five bucks, a real life plant biologist to help with your plants. Yeah, we love you, Budget Botonist. Wow, can't even read this, the handwriting is so terrible. Really wasted this month's shout out. Listener Thomas F, stay safe. And And remember, many police and military people are hardcore right-wingers who won't do the right thing.

0:52:51 Andrew: Yeah, see this episode. Reminder that Sparkle Donkey Tequila will host a pre- or post-live show event for patrons at the Tequila Lab in Seattle. Come to, I guess, the Tequila Lab in Seat- Ah, that sounds- that's going to be hard to pass up, Thomas. I think we're going to do that one. One Smart Cookie sent Cutters wishing the Fat Jedi a safe trip with his precious at Emperor's Brewery cargo. Going, I need to to say, uh, Emperor's Brewery gave, uh, me a bottle of beer at my office, uh, and I've been meaning to, uh, add some swag and didn't, uh, put it together until I drank the beer and and saw the swag that it, you know, sort of Star Wars themed. And, um, yeah, no, it was it was really, really tasty. Thank you so much, guys.

GDT says everyone knows that the police can't arrest you without page two of two, your consent. Maritime laws, freedom menu. Jennifer Tchaikovsky, not a Last Week Tonight producer. Yeah, we believe that Supreme Court justices should have an 18-year term limit. And so should Conrad Michaels, uh, come on time to time to change that name. Andrew, tell your son that the best garbage plates in Rochester are at Dog Town or Mark's Hots.

0:53:07 Thomas: Yeah. And

0:53:55 Andrew: Edgy Veggie, Torsten Non Compos Mentis, Wolfies Peel, let's go Dodgers. Well, I, I think it's time to change that one, uh, John Brown Did Nothing Wrong, and Elect Thomas Smith President, American Honkytonk Bar Association. Thank you all so much. Remember, you get on this list by heading over to patreon.com/law, giving it the five buck and up level, and, uh, we will read whatever crazy name or sponsorship or whatever, uh, once once a month in quartile or quintile format, just like this.

0:54:26 Clip: Sometimes you eat the bar, and sometimes the bar will eat you.

0:54:32 Thomas: Now it's time for t3be thomas takes the bar exam answer time um this felt like another another easy one, but did I get tricked by this dastardly new book?

0:54:42 Andrew: Thomas, A farmer asked a grocery distributor for an application to supply onions to the distributor and filled it out. The farmer addressed it correctly and then mailed it first class to the address provided on the form. Then two months go by. The farmer doesn't hear anything. Has the farmer's offer lapsed? And you picked A. If the farmer indicates that it's lapsed, then yes. And you did that sort of by eliminating the rest of the responses. Your backup choice was D. If, if the distributor determines that the first-class mailing was inadequate, yes. And I want to tell you, Tom, this is a straightforward question. You got it straightforwardly correct.

0:55:17 Thomas: Ah, phew.

0:55:19 Andrew: This is testing the law of revocation of an offer and also the law of expiration. There is, you know, at common law, an offer can expire due to an amount of time. That amount of times is must be one that is reasonable under the circumstances. And so this this question deliberately left off what would have been a good, maybe even a better answer, which would have ben yes, if a court determines that two months is an unreasonable amount of time to wait for the delivery of onions. Right. It's funny here, like as we're sorry, as I'm sort of doing the lamb thing of, you know, deconstructing and maybe giving harder answers here, actually could make the answer about onions.

0:55:32 Thomas: Sure. Yeah. I was just going to say that would have been a better one. You could have done like, yes, because onions, don't uh, last that long or something, you could have done a really dastardsly one. Like yes, Because onions are food.

0:56:03 Andrew: Right.

0:56:15 Andrew: Yes, because the onions might rot. Right. Like, yeah, could have done that. And that actually would have been a correct statement of the law.

0:56:17 Thomas: Yeah, yeah, totally. Oh, they should have. I might've still gotten that one. I don't know. It depends on how good, how distracting the other three answers were. Oh,

0:56:28 Andrew: Offer can expire if more than a reasonable amount of time and has that reasonability determination is made on a case-by-case basis, and it depends on what the offer is about. And so, two months might be unreasonable to hold out for your onions. If they were steel ingots, you know, it probably isn't. Steel ingots don't rot like they're the same thing.

0:56:47 Thomas: I throw mine out after the expiration date though. Do you not? Yeah.

0:56:53 Andrew: Well, you don't you don'T want them to go bad. I mean, There an offer collapse when the thing for which you have offered is no longer the thing that you were offering in the first place. Right.

0:56:55 Thomas: I want fresh ingots. Like, Now it's onion soup because it's been sitting around so long it's just kind of disintegrated. It's not even onions anymore.

0:57:16 Andrew: I guess I mean, it sort of relates to it. Right. Like, I guess the best thing I can say is that if if they're no longer in the same condition that they would have been in at the time that the offer was made. So that's a version of the onions and the steel beams rotting. An offer can lapse if specify the time in the contract, right? That's a thing you can say. You can say this offer will remain open until X time. And if you try and rescind it at any point during that time period, in breach of the original offeror can be in breach of his own contract, if right? You and I propose a deal and I say, hey, I'll give you a week to think about it, then I send it off to you, and then four days later I say, you know what, I'm revoking this offer. I no longer want to do that.

0:58:02 Andrew: Even if you never had any intention in the back of your mind of accepting the offer. You can absolutely sue me for breach of contract there. Because in commercial transactions, right, people will often pay for the right to keep the offer open for a period of time. You know, hey, I want to think about this. Can you give me a week? Sure. I want you to pay me $5,000 to keep this offer open. Right. I see that happen constantly. So those are all of the kind of principles around offer and expiring. The other thing that I thought it might try to be playing with is the mailbox rule, which we've talked about before, which is the acceptance of an offer becomes effective the minute you put the response in the mailbox, not when it arrives. Right. Because so you can have the sort of like crossing letters thing. But I don't think any of the answers were set up for that

0:58:18 Thomas: Yeah. Yeah. That's

0:58:52 Andrew: Either. So now you nailed it. Not not every question on the bar exam is a 10.

0:58:53 Thomas: What I was dreading when I went into the question, but yeah, uh, no, they gave me an easy one, but They've been so tricky that even when they give you an easy one, it's hard to have confidence in it.

0:59:05 Andrew: And that's a real thing. Real bar takers go through, you you second and third guess yourself on the easy ones. So great job, Thomas.

0:59:12 Thomas: Thank you. Well, let's find out who this week's big winner is. I guess on Twitter, maybe we'll find something. For now, we haven't had time to find an alternative, but yeah, so we'll still look to Twitter. I'll tell you, it's not bad being on Twitter now because you get to see an idiot completely ruin it firsthand, you know, it's kind of, it's kind of fascinating, you've got front row seat. So I was gonna quit, but now I think I'm gonna stay and watch for a bit, and we'll see, we'll be where it goes, but anyway, who's this week's big winner, and

0:59:35 Andrew: All right. Well, Thomas, a lot of people playing along this week, including one who purports to be an expert in onion law, but the first correct answer actually came in from sent from Disneyland, who writes, "Finally, postal law. If the grocery chain isn't checking their mail regularly, it isn't the farmer's fault. The farmer should be able to pull the application, so answer A. Also, next time, send the application from Disneyland. That might help." Well, I don't know if that will help, but we're happy to promote you and congratulate you. Congratulations, Sent From Disneyland, on winning this week's T3BE, everyone, let's give them a follow, that is at Sent From Disney, so S-E-N-T-F-R-O-M-D-I-S-N-E-Y, at Sent From Disney, and congratulations on being this week's winner.

1:00:29 Thomas: That's our show. Thanks so much for listening. Hope things are still going fantastically well there in the future, everybody, listening election wise, and I'm sure we will have updates for you in the next episode. And reminder, there's still time for you to catch our Q&A. That's Wednesday the 16th at 4 p.m. Pacific, 7 p.m. Eastern. Come join us. If you're patron, ask a question on the question thread. If you are not a patron, that's a-okay. Come check out the YouTube, interact in the chat, it's a lot of fun. T-Gomes is usually there, Morgan's usually there, all kinds of fun, we'll see you then.

1:01:00 Andrew: Until then.

1:01:01 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.

1:01:34 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.

1:02:17 Thomas: Checklist pro pros checklist pro checklist pro pros checks what checklist pro prose checks lists for pros I don't checklist