OA650: If Fake Insulin Tweet Tanked Stock, Could Eli Lilly Sue?

Transcript

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

0:01:16 Thomas: Hello, and welcome to Opening Arguments. This is episode 650. What a number. I'm Thomas. That's Andrew Torres, Esquire, lawyer extraordinaire. How are you doing, Andrew?

0:01:21 Andrew: Woo! Hi, I'm fantastic, Thomas. How are you?

0:01:29 Thomas: Well, I'm great. I'm feeling like, I don't know, in about one episode I feel like there's going to be new intro quotes. I've put my finger to the wind and looking forward to that. As we've already announced our new release schedule, seems like those new intro quotes are now going to come twice as often, which I think is good.

0:01:37 Andrew: Love it.

0:01:47 Andrew: Yeah.

0:01:47 Thomas: I'm a fan of that. There's so many we never get to put in. So that's another benefit of that, and the other benefit is us working twice as hard.

0:01:48 Andrew: Yeah, it's the benefits never stop, you know? Yeah, right. Yeah!

0:01:57 Thomas: Isn't that great? You're not having a baby in a month, are you?

0:02:02 Andrew: No, yeah.

0:02:03 Thomas: Okay. I don't know why I asked that, But yeah, totally nothing happening here.

0:02:03 Andrew: Okay. So then, so literally both households are totally fine with putting in some extra work. Okay, good

0:02:09 Thomas: Just, just tumbleweeds. You know, I just just open the door. I just opened my doors. Nothing here. Nothing to do. No reason I can't take on twice as much work. So it's great. Everybody wins. All right. Let's get to today's episode.

0:02:10 Andrew: To know. Yep. Yeah,

0:02:23 Clip: It's an interactive CD-ROM!

0:02:25 Thomas: I'm excited to talk about Section 230 again in the news. On the Q&A last week, on the YouTube Q&a, we had a few questions about the Eli Lilly thing, which people may have seen. The two minutes, I guess you could buy your fake Twitter check mark the other week. Wow. Rollercoaster on that Twitter. And it's rollercoaster that has gone just straight into the earth. Like it's just barreling down into the Earth. I've never seen someone so quickly basically disprove all of the mythology about them so fast. I mean, it's incredible. It's Elon Musk.

He was built up as this genius CEO. And it's like, he wanted to go prove to everybody that wasn't true. Like he's like hold my beer, hold my bong, I guess. Uh, let me prove that it's not true. So anyway, during that time when you could, uh, buy a blue check Mark for $8, which is the stupidest idea anyone's ever had. Um, people were making fake accounts. It was a lot of fun, funny stuff. And you may have seen the meme shared around that someone said, Hey, they made a fake Eli Lilly account, which is a pharmaceutical company.

And they tweeted that insulin will now be free for everybody. And the stock tanked and there's an accompanying graph where the stock tank. Now, um, I I said this on the Q and a, I have had not looked into it. At all, but I have a pretty good BS detector, and I thought, Well, there's no way that's true. That can't be right.

I mean, I feel like the odds that there are investors sophisticated enough to be following the Twitter account and looking for their news about whether or not to invest or sell or buy or whatever,

0:03:00 Andrew: You've

0:03:55 Thomas: But not sophisticated enough, enough to know that obviously this was a fake account during the time in which everybody was making fake Twitter accounts. It seemed a little fishy to me, but I hadn't looked into it. I understand you've now looked into it. So let's talk about that. And let's also talk, you know, hypothetically, let's say it were a real thing and that did happen. Would someone get in trouble for that? I believe Section 230 is the magic words that always come up when we're talking about cases like this.

0:04:21 Andrew: Got that exactly right in every respect. Apropos of nothing, I can tell you that as we record this, Tesla's stock is down to $183 a share. Um,

0:04:33 Thomas: Wow. Someone must have made a fake accountant tweeted Tesla's will now be be free.

0:04:35 Andrew: Uh, Yeah, Eli Lilly 69, or you know whoever it was, uh, tweeted out, uh, insulin is free now. And the that was initially reported as, you costing Eli Lilly, the actual company, uh, a market cap of several million dollars. There's a four percent drop in the stock price. Had they lost a major lawsuit? The

0:04:58 Thomas: Yeah. There's other things in the news that make way more sense to account for it than someone's fake tweet that you would have had to be following that fake account already to see it. It's just none of it made any sense to me.

0:05:12 Andrew: Announcement from the Eli Lilly 69 account, that's not the real, that is a joke, 1,500 retweets and 10,000 likes before it was taken down. So, you know, no OA tweet has gotten 10,000 likes. I think one of our election retweets had like six or 700 retweets. But, you know, look. So it would be a big news for opening arguments. This is not a ton of, you penetration into the market. And so it seems highly unlikely that that is the solitary cause of a 4%

0:05:18 Thomas: 69, 420, obviously.

0:05:53 Thomas: Yeah.

0:05:53 Andrew: Drop in the share price,

0:05:54 Thomas: Someone's investing in a individual pharmaceutical company specifically, but wouldn't get that that's either fake slash a company wouldn't just do a thing that's horrible for business. Instant well, okay, Twitter, never mind. Or

0:06:08 Andrew: And the, the actual Eli Lilly account is at lilypad, L-I-L-L-Y-P-A-D, which is almost as dumb as Eli Lilly 69. So, you know, there are reasons to believe it may have had an effect on the stock price, almost. Right? Certainly not billions of dollars. The question is, could somebody maintain a cause of action against Eli Lilly 69 or against Twitter in connection with, announcing, you know, this obviously false thing that caused real harm. And the answer to that is absolutely not. Okay. Absolutely not. I feel very, very confident on that for a couple of reasons, right? And we're going to go through in light of what 47 U.S.C. Section 230 says. This is Section 230 of the Telecommunications Decency Act. But also because a case that we didn't discuss

0:06:20 Thomas: Twitter.

0:07:06 Andrew: When we did our deep dive on Section 230, that was Episode 390. I know we should have done it for 230, but I don't think Donald Trump had had it in his sights yet. That

0:07:13 Thomas: Yeah. We couldn't 460, we couldn't 690. Oh.

0:07:19 Andrew: I know.

0:07:20 Thomas: Man, yeah.

0:07:21 Andrew: Yeah. That was episode 390. So you can go back, listen to that. We're not going to cover the same ground other than I'm going to repeat the kind statutory protections. But one of the cases, there was a case, a New York state decision, right? So New York Supreme Court, they're now the only state remaining that uses a Supreme Court to describe their trial courts. Now that Maryland question number one passed. So I'm they

0:07:45 Thomas: They need one of those question number ones. I'm

0:07:46 Andrew: Definitely do need one of those. So there was a case called Stratton Oakmont out of New York. And basically it involved a carrier, you know, like an AOL that had message boards, because, again, remember, this is 1995. Right.

0:08:01 Thomas: Getting my disc man again. I just had it out for the last episode, dusting it off, remember? That, uh, Wait, do you have any, any experience with this? Cause you're, you're older. Did you, the pleasures of being on like the school, you bus for sports or field trips. And you got that CD collection, you know, the, the big folio thing that folds out, it's got a weight, 400 pounds.

0:08:02 Andrew: Yep. I know. Dust it.

0:08:22 Andrew: Absolutely. That was in my car. So, yeah. No, that was. Yeah, absolutely.

0:08:23 Thomas: It's That's the best. Oh, good times. I'll I

0:08:27 Andrew: Good

0:08:27 Thomas: Still have my, that hanging around and I'll just, I don't use it, but like, I'll say, I'm like, Oh yeah, I remember that stuck stuck in a shitty little town, and my only escape was popping in a CD of 90s music that Andrew would hate. Anyway, so I'll be doing that. I'm not listening.

0:08:29 Andrew: Nice.

0:08:42 Andrew: Yep. There you go. So. Oh, understood. Yeah.

0:08:47 Thomas: But 1995, here we are.

0:08:49 Andrew: Essentially what happened there was, uh, somebody left up an anonymous message on a message board that was defamatory. And the plaintiff who was harmed thereby sued the internet provider for not taking it down. And unlike other courts who were sort of left to decide, how do you treat an internet service provider, right? Do you treat them like a newspaper, right, when a newspaper newspaper publishes an article that goes through a review, even when they're publishing an op-ed, it goes through review process. It is subject to journalistic standards and it is subject to being edited, rightly, all of that stuff. And if I publish something defamatory in The New York Times, you can sue me. You can sue The New York Times. They are treated as speaker. On the other hand, if I write a book of defamatory crap, and you remember like bookstores, right?

0:09:35 Thomas: Yeah. Yeah.

0:09:47 Andrew: Barnes and Noble, they used to, yeah. Okay.

0:09:46 Thomas: No, no idea. It's where I bought my CDs sometimes. I remember bookstores.

0:09:50 Andrew: There you go. And a bookstore sells my book. They're not treated as the speaker. Why?

0:09:54 Thomas: Yeah. Right. Or if like someone writes like, you Thomas for a good time on a bathroom stall. Can I sue the bathroom stall?

0:09:58 Andrew: Yeah, yeah you cannot sue the store or the bathroom or, right.

0:10:05 Thomas: Yeah. But definitely call me for a Good Time if you want.

0:10:08 Andrew: Yeah, I do.

0:10:09 Thomas: So I endorse this message. Yeah, yeah.

0:10:11 Andrew: Once a week, I call you for a good time. So the question was, do you treat an internet service provider as the publisher or speaker of the stuff that they are arguably publishing, And right? Typically like pre-internet, dividing Yeah, the line in a lot of these cases was really volume, right? The newspaper, OK, they got some editors, they got people who look over everything you publish in the newspaper. But like a bookstore, come on, like they're not going to read the thousands of books that they order every week before. It's not fair. Right. And that was essentially the way the cases broke down. And the Stratton Oakmont court in New York said, no, we're going to treat you as the publisher of the thing that you allow people to post on your website. And that immediately led to the confluence of events that gave rise to the Telecommunications Decency Act of 1996. Obviously, porn on the Internet in general, not just child abuse material, but literally but like, you know, I don't want little Johnny to see boobies a massive issue as well.

0:10:29 Thomas: Yeah.

0:11:17 Andrew: And so there were confluence of all these factors. But the business factor was, hey, just sell out, you know, bandwidth to people. We have thousands, tens of thousands of users. We're not publishing this. Fix this. And that led to the Telecommunications Decency Act of 1996. And there are sort of a couple of things that you need to know that remain kind of anachronistic. Again, I'm trying not to overlap with what we said in 390. The first is this was before the AOL-Time Warner merger, And right? So when you hear interactive computer service, you should be thinking AOL, right. And the idea was that your ISP, right, the person that sold you the Internet, would also be packaging that content to you in some way, which is what AOL was doing at the time and what other competing services were doing. Now, you those jobs are mostly separate, right?

0:11:26 Thomas: Yeah. I

0:12:14 Andrew: But the definition of interactive computer service is now codified into law as basically aggregating together your ISP plus people who provide, who are defined in the statute as access access software providers, and those are defined as a provider of software, including client or server software, or enabling tools that do any one or more of the following: a) filter, screen, allow, or disallow content; b) pick, choose, analyze, or digest content; or c) transmit, receive, display, forward, cache, search, subset, organize, reorganize, or translate content. Okay, so all of those get lumped together. So Twitter is an interactive computer service under that definition.

0:13:01 Andrew: Facebook is an interactive computer service under that definition, but so is AT&T, right? So is wherever you get your internet from. It be that? You know, it probably shouldn't, right, like this represents a snapshot in time. And it's important that we know that as you're thinking about the law that has kind of grown up around Section 230. Section 230 then gives two different protections to this agglomeration of tech companies. The first are clarifying that you are not the publisher or speaker. That is directly overturning the Stratton-Oakmont decision, saying, hey, just because something is up on your interactive computer service doesn't mean that you're the speaker, you're treated like the bookstore, right? So when Eli Lilly 69 posts on Twitter, hey, insulin is free now.

0:13:52 Andrew: Twitter is not the speaker of that. Twitter has zero liability in connection with that statement. Now, love

0:13:58 Thomas: Love all this old timey computer language, by the way. If I if I have my way, the intro to this segment is going to be Jurassic Park. It's like an interactive CD-ROM.

0:14:06 Andrew: It, right, right. Now some folks have said, but what about the fact that Twitter provided the little check mark, right? Doesn't that seem like that is validating, right, it's saying, hey, we did some kind of work to validate this. And you would have to exclude the fact that in the week beforehand, Twitter said, no, we're going to get rid of doing the work and we're just going to allow you to buy It, which would be a pretty good defense if you're Twitter. But there's also the second half of the protection. So the first half says, we don't treat you as the speaker.

The second half says that no provider or user of an interactive computer service shall be held liable on account of a any action voluntarily taken in good faith to restrict access to or availability of material that the provider or a user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing or otherwise objectionable, whether or not such material is constitutionally protected. Put a pin in that. Or B, any action taken to enable or make available to internet content providers or others the technical means to restrict access to material described in paragraph one that I just described.

0:14:23 Thomas: Mm-hmm. Yeah, yeah.

0:15:19 Thomas: This makes sense. So it's like they don't want to make it such that if someone makes an effort to filter their stuff a bit, that would open them up to liability. And therefore, you disincentivize anyone from making any effort. Is that kind of just

0:15:30 Andrew: That's exactly 100 percent correct. And that's why it includes that language, whether or not such material is constitutionally protected. The idea, the thought process here was, hey, we want to make sure that little Johnny can't see boobies and we don't.

0:15:46 Thomas: Let little Johnny see boobies?

0:15:48 Andrew: I know.

0:15:48 Thomas: Come on.

0:15:50 Andrew: And so we want to incentivize AOL to have a series of filters that prevents you from seeing boobys. And we don't anybody to be able to sue them in connection with that decision if they are overly broad in censoring the amount of boobies you can see or whatever, right? And that's why you had that very broad language, right? And again, most of it is porn-oriented, obscene, lewd, lascivious, filthy, but excessively violent, harassing, or otherwise objectionable. And it clearly also, and there's testimony in the congressional record, applies to hate speech, We right. Wanted the definition of hate speech, as you and I have talked about since OA episode one, is very, very narrow. I can say hateful horror, as we've seen over the past six years. You know, the far right can say, hateful, horrible, neo-Nazi, racist crap. And unless it is imminently likely to lead to the incitement of actual violence, it doesn't get restricted.

0:16:17 Thomas: Go on. Yeah.

0:16:27 Thomas: Oh, wow. Yeah. Well, yeah, because we never want to allow little Johnny to be able to see boобies, but we do want him to have the ability to be radicalized by online Nazis as much as possible. That's where our priorities are.

0:17:05 Andrew: It Section 230 airs on the on other side, groups that together and says, yeah, we also want to make sure that if a content provider is restricting hate speech, that that not be an argument that's available to them. Right. That, hey, it's my constitutional right to think, you know, to rank the races on AOL.com. And no, it doesn't matter whether it is or it isn't, no liability will attach to any provider who voluntarily, in good faith, restricts access to your hateful crap out of an idea to protect against material that is harassing or otherwise objectionable, whether or not such material is constitutionally protected. So, meant to be broadest possible protections to encourage self-regulation and self-restriction in this area.

0:17:56 Andrew: And it is very, very clear that the history, the broad history of Section 230 decisions would extend to, even if there was an argument that Twitter is itself speaking when it puts the little checkmark on there. And you may have noticed that C1 says, you no provider or publisher of any interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider. And so you might raise the argument of, hey, no, this is not another, right? This is Twitter Twitter putting a check mark on Twitter, so they're the same information content provider. Doesn't matter. Case law is super clear that that another has been effectively read out of the statute, It's right? Been interpreted broadly as including speech engaged in by the interactive computer service at the time.

0:18:31 Thomas: Right.

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0:22:02 Thomas: Go to rocketmoney.com slash opening. Seriously, it could save you hundreds per year. That's rocketmony.com slash opening. Cancel your unnecessary subscriptions right now at rocketmany.com slash opening. I know the answer to this is going to be no because it seems like 230 just prevents any of this at all, but I could see, at least rationally speaking, an argument of like, okay, but in this instance, Twitter was negligent in how easy they made it for anybody to appear as an authority, as an actual authentic person. Like, would this behave, is there a type of behavior that could have been so negligent that it might have opened them up to any liability, or does 230 just basically, you know, it's magic words that lets you just not have to care about that at all if you're an internet company.

0:22:51 Andrew: It's very, very close to the latter. And if you're thinking, well, gosh, that seems to have extended beyond the language of Section 230 and is being judicially interpreted in a way that is more expansive than perhaps the language requires. Congratulations, your Clarence Thomas.

0:23:09 Thomas: No, no one should ever be congratulated for being Clarence Thomas. You should only be congratulated if you somehow get over the condition of being Clarence Thomas. That's the only way. I

0:23:11 Andrew: Nope, nope, nope. Nope. It's too late. Your Clarence Thomas. Thomas. I'm going to read Clarence Thomas's own words to you, and they're going to be shockingly similar to what you just said, which is why I did the please proceed, Senator. But no, there was a case that went before the Supreme Court, was a cert petition before the Supreme Court called Enigma Software Group USA versus Malwarebytes. And the Supreme Court denied cert in that case. So let me give you a little bit of the factual background. Enigma Malwarebytes are two competitors that provide software that content, such as content that poses security risks and otherwise objectionable content on your computer. So Enigma sued Malwarebytes, alleging that MalwareBYTES engaged in anti-competitive, violation of the antitrust laws, by making its products difficult for consumers to download and use in connection with the Enigma products.

0:24:18 Andrew: So in other words, as you're configuring MalwareBytes, the idea was that they put coding into the MalwareByte software that made it hard for you to also use the Enigma software. Given that I have heard of Malwarebytes and I've never heard of Enigma, it seems like maybe they were successful in

0:24:36 Thomas: Don't think I've heard of either. Malware bites.

0:24:38 Andrew: Malwarebites.

0:24:39 Thomas: I've heard of malware. And

0:24:39 Andrew: So Enigma sued them. And then Malwarebytes said, no, no. We have immunity under Section 230. Specifically, under Section 230C2, because service provider, and we cannot be liable for providing tools to restrict access to material that we consider to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable.

0:25:02 Thomas: We think our competitor is just all that. Yeah.

0:25:05 Andrew: Is otherwise objection able. Yeah, right.

0:25:08 Thomas: When was 230 passed?

0:25:09 Andrew: 1996. 1996.

0:25:10 Thomas: Okay, I wonder why, like, you know, Microsoft didn't try to fight the antitrust stuff they had with this reasoning. Did they just not think of it? Because that feels like a pretty good argument, you now?

0:25:22 Andrew: So the real answer to that is that the Microsoft antitrust cases were late 90s, and the body of case law that Malwarebytes was relying on hadn't really developed by that time.

0:25:32 Thomas: So even though the law was there, it wasn't kind of understood.

0:25:34 Andrew: It hadn't been interpreted expansively. Malwarebytes was like, let's interpret this as expansively as possible. And the Ninth Circuit looked into the history and purpose of Section 230 and they said, You know what? You've gone too far. Section

0:25:45 Thomas: Wow. I didn't know it was possible.

0:25:48 Andrew: 230 was not intended to protect you from antitrust violations. Right. It was intended to shield you from liability for, you know, defamation for all that sort of stuff and not antitrust. Come on. That's ridiculous. And then Malwarebytes petitioned the Supreme Court to take up the case. And the Supreme court said, no, we're going to let this stand.

0:26:10 Thomas: Whoa.

0:26:10 Andrew: We think the Ninth Circuit.

0:26:11 Thomas: Wait, they're going to let the Ninth Circuit decision stand?

0:26:11 Andrew: Right. Yep. So did not grant cert. Again, you cannot as a lawyer. I want to be careful here. As a lawyer, you can not then cite that denial of cert as the courts. It could just be we're super fucking busy. Right.

0:26:24 Thomas: Ah, yeah. Is that really a reason they deny cert? They're just like, come again another time. I'm on my break. Supreme Court break. Sorry, can't do it.

0:26:30 Andrew: Oh, yeah, this is I mean, the Supreme Court takes, you know, a tiny fraction of the cases that are petitioned before it.

0:26:39 Thomas: Wow, I just would have thought there was some other response. Like, hey, this is a good case, but we just, sorry, our hands are tied. Versus, nah, denied because we got a vacation coming up.

0:26:51 Andrew: We're busy. This is one of the arguments that folks will make is this is an improper or flawed vehicle to vindicate X particular principle, right? You know, lots pass on a case. Anyway, they passed on the Malwarebytes decision. And Clarence Thomas wrote a concurrence. He agreed that they should pass on the Malwarebytes decision. But he wanted to just write, because he was mad, that, by the way, like, Section 230 is really getting out of hand here. And he wanted to make Thomas argument. And He said, look, there are really three major areas in which Section 230 has been expanded beyond its specific text. So the first is knowingly illegal content. Right. So that is, hey, were meant to be immunized from content that you did not know or have reason to know was illegal. But this was not really meant to shield you from everything.

0:26:59 Thomas: Yeah.

0:27:47 Andrew: Right? If you you actually knew it, it was not supposed to be included in the Section 230 immunity. And instead, our courts, federal courts, are dismissing out cases on motions to dismiss at the pre-trial discovery phase without even letting plaintiffs try and prove that you knew that content that you allowed to be published on your site was illegal. And there's

0:28:12 Thomas: Well, that seems like it's just wrong regardless of the case law, right?

0:28:16 Andrew: A case called Zirin in the Fourth Circuit, that Section 230 confers immunity even when a company distributes content that it knows to be illegal. And subsequent cases have relied on the Zirin decision for that

0:28:24 Thomas: Oh, It really is a blank check.

0:28:30 Andrew: Shielding of liability. Second set of cases are companies are immune from the consequences of their own speech. This is the reading out of the another from the C1 part of the statute. Courts. I'm going to read Clarence Thomas's language to you here. Courts Have Departed from the Most Natural Reading of the Text by Giving Internet Companies Immunity for Their Own Content. C1 protects a company from publisher liability only when content is provided by another information content provider. Nowhere does this provision protect a company that is itself the information content provider. And an information content provider is not just the primary author or creator, it is anyone responsible in whole or in part for the creation or development of the content. 230f3. But from the beginning, courts have held that 230c1 protects the exercise of a publisher's traditional editorial functions, such as deciding whether to publish, withdraw, postpone, or alter content.

0:29:23 Andrew: So that is why I say it is just absolutely clear that there's no case against Eli Lilly 69. That decision to publish, withdraw, postpone, or alter, by giving a little checkmark to Eli Lilly, 69, has been held to be at the core of Section 230C1 immunity, notwithstanding the fact that it technically violates that another part of the statute. And then the third area, this doesn't have really a pithy name to it, and I don't think Clarence Thomas does a good job of describing it because he's covering up for what they're really mad about, which what Trump's and conservatives want.

0:29:54 Thomas: Yeah. Yeah, conservatives think and truly believe, and this is so funny, they think that all of tech is like discriminating against conservative content online when actually the opposite is true. Like any measure that anyone takes of this is like, no, actually they're at a huge advantage, an unearned advantage, uh, but they, they work the refs and they've tricked everybody into thinking they're, you, this discriminated against minority, actually it's common theme, you know, whether the persecution complex, whether it's white, White Christians being the actual victims or, you know, white people in college admissions being the actual victims, or conservatives on Twitter being the real victims. It is a real victim mindset. That's the real motive here. So if you're wondering why, you might accidentally be agreeing with Clarence Thomas, I think it's because the real reason, he's not being straightforward with a real reason, right?

0:30:26 Andrew: Yeah.

0:30:49 Andrew: Yeah, I think that's that's right. And Donald Trump, for example, has been very straightforward with the real reason that is you're engaged in viewpoint discrimination against my racist views. Use. Uh, and that's why you kick me off the platform and not, you what Donald Trump thinks is his equivalent, you Know, which would be somebody like, you Know, Ili Mistal or whatever, right? Not people arguing for affirmative action. You they're ranking the races just like I'm ranking the races. Right.

0:30:54 Thomas: Yeah.

0:31:17 Thomas: Yeah. If I say an election was stolen and it wasn't, that's the same as...

0:31:17 Andrew: Um, And you say, yeah, it's both. You're saying right. That leads to, and I love the fact that you drew the distinction there about the way in which tech companies have actually promulgated and pushed content forward that is 100% radicalizing individuals who absorb that content on the internet. And one of the things that's come under the most fire that I think rightly so is the YouTube algorithm, if you're on YouTube, like if you just kind of let it go, even if you start off with a good skeptical site, yeah,

0:31:24 Thomas: Yeah.

0:32:04 Thomas: How to fix my door. Did you mean to search for how to become a Nazi and storm the Capitol? No, I didn't mean that. Why did you suggest that?

0:32:13 Andrew: You will get very, very quickly, like I get the suggestions all the time. By the way, use, you know, click in the upper right hand corner. If you watch the YouTube video, like there's a report this video and you can describe it as hate speech, and you should be every time it pops up with a PragerU video, you should be right clicking in the upper right hand corner and describing it as hate speech. I don't know where it goes, but go

0:32:30 Thomas: Oh, nice. Can I, I say also, this is a separate, uh, well, it might be separate, I, um, have realized this is kind of a different thing that I only just now have, happened to me enough to realize. You may not have noticed, but YouTube search is actually completely fucking worthless now. Did have you found that they have ruined it. So if you search for anything, like I'm searching for, sometimes when I'm doing audio production, I'm just searching for like a how-to, or I'm searching for a specific whatever video, you get five results that are your search, and then it instantly goes to, yeah, but we think we know probably what you'd rather see. And it's never right. It's always nothing. And it used to be on the internet that you could kind of be like, all right, I'll just ignore that section.

YouTube doesn't let you. They only search. It is like if you did a Google search, which also is getting worse and worse. It is like if you did a Google search, Andrew, and they only let you see the first five results and there was no other pages. You're like, but, well, I want to see other results. They don't let you. It's unbelievable. I

0:32:51 Andrew: Not as such.

0:33:37 Thomas: Keep doing it thinking I must be crazy. I must быть missing a button or something, but I've searched like, hey, you know, is anyone else seeing that YouTube search is ruined? And everybody's like, yeah, it's ruined. You can't even use it anymore. Unbelievable.

0:33:37 Andrew: That's crazy.

0:33:52 Thomas: Andrew's like I don't know what to say about this old man screams at cloud about the YouTube search, but

0:33:50 Andrew: With that in mind, um, no no no it I'm about to transition seamlessly into the Gonzalez versus Google case, which involves the YouTube algorithm. Here's the inciting incident. In November 2015, Nohemi Gonzalez was a 23 year old U.S. citizen studying in Paris. She was murdered when three ISIS terrorists fired into a crowd of diners at Le Bel Equipe Bistro in Paris. That was part of a broader series of attacks by ISIS in Paris, which included several suicide bombings and a mass shooting. Ms. Gonzalez was one of 129 people killed during those events.

0:33:59 Thomas: Oh okay, ah wait when the hell was this, geez in

0:34:34 Andrew: November 2015 in Paris—so So the complaint alleged that assistance and aid to the ISIS mass shooting took several forms, including that Google had knowingly permitted ISIS to put on YouTube hundreds of radicalizing videos inciting violence and recruiting potential supporters to join ISIS forces then operating in the Middle East and to conduct terrorist attacks in their home countries. Additionally, and at the core of the appeal, the complaint alleged that Google affirmatively, quote, recommended ISIS videos to users via the algorithm. Google selected the users to whom it would recommend ISIS videos based on what Google knew about each of the millions of YouTube viewers targeting users whose characteristics indicated that they would be interested in ISIS videos.

0:35:27 Thomas: Terrorism I'm gonna, you know, a satire it's of our time would be that actually you, Google, and all these companies have an advertising profile that actually just has a tick box that's like, going to be a terrorist, terrorist, yes or no, and they actually know that before any authorities do. Like, that it might be literally true, actually, they could probably predict terrorism, yeah them the terrorist supply ads because they're gonna need them, oh

0:35:28 Andrew: Yeah.

0:35:47 Andrew: I think it almost certainly is literally true. Yeah. The selection of users to whom ISIS videos were recommended was determined by computer algorithms created and implemented by Google. Google. Because of those recommendations, users were able to locate other videos and accounts related to ISIS, even if they did not know the correct identifier or even if the original YouTube account had been replaced. In it would sort of breed even as they took them down. These are allegations in a complaint, right? Google is free to say, as opposition to certain. That, nope, we changed the algorithm. It didn't do that. They're free to dispute the facts.

But that's not what happened in this case. What happened in this case was Google moved to dismiss on the basis of Section 230. They said, look, even if all this were true, it's not. Even if all this was true, we're immunized from it. And so the a question that is pending before the Supreme Court. This has not yet been briefed on the merits. That will be briefed at the end of November with opposition the brief due in December. But the question is, does Section 230C1, that not a speaker, immunize interactive computer services when they make targeted recommendations of information provided by another content provider?

Or does it only limit the liability of interactive computer services when they engage in traditional editorial functions, such as deciding whether to display or withdraw such content with regards to such information? So in other words, the question is, when you go above and beyond that, right, we get it.

0:36:17 Thomas: Wow on 230, yeah yeah

0:37:22 Andrew: Section 230 means that Google can't be held liable for airing or refusing to air an ISIS terrorist video. But the question is, when the ISIS video rises to the top of the recommend queue based on an algorithm that you've developed to allegedly try and target those who want to see those kinds of videos, videos.

0:37:45 Thomas: We see, you've been searching for how to fly a plane but not how to land it, maybe you're interested in this, yeah

0:37:48 Andrew: Right, exactly. Yep. Does Section 230 immunize that? And the reason I wanted to go through that fact pattern is that is as sympathetic a presentation of, you let's get rid of Section 230 as I could possibly imagine, that's the the question, right?

0:38:03 Thomas: Yeah. Well, do we have to get rid of it, or just... Hmm.

0:38:08 Andrew: This case kind of puts in the Supreme Court's crosshairs the arguments that Clarence Thomas wanted to raise, which again, if you look at those in the abstract, they were awfully similar to the Thomas Smith arguments, these right. Are arguments that have the potential to kind of cross cut across the parties and lead to, you know, perhaps a a regime in which to the everything isn't, no, it's the Internet, Section 230 applies, Right right?

0:38:34 Thomas: Hmm, yeah.

0:38:35 Andrew: Now, that's essentially the presumption, nope. Right, it's the internet, it's the Wild West, we're not responsible for content on there, we're not responsible for uploading it. That's the C1, right. We're not responsible for taking it down. That's C2. Kind of use at your own risk. And the question is, is the Supreme Court going to cut back at that? And my guess is that they probably will. If you're wondering, is that dangerous in a court that is six to three conservative activists? You bet, you bet it's dangerous on a Supreme Court that is 63 conservative activists. And then and I thought, OK, but how do we shut off the argument that Trump and others are making that Section 230 should be repealed in its entirety, should be declared unconstitutional, should go away?

0:39:23 Andrew: So now I can sue Twitter for banning me for saying racist stuff. Right.

0:39:29 Thomas: I mean, that's silly, right?

0:39:30 Andrew: Yeah. Nowhere is it more obvious that that's silly than in a brief recently filed by Donald Trump in the Ninth Circuit. So cannot tell you. I've got it linked in the show notes. This is Donald Trump's lawsuit against Twitter for banning him and being horrible, biased liberals. And if you think I'm being unfair to Donald Trump, I know and you might be thinking that, I'm going to read to you from the actual complaint filed by a real lawyer on behalf of Donald Trump in a real court, U.S. Appellate Court, the US Court of Appeals for the Ninth Circuit. A human being, a real human being who passed the bar exam wrote the sentence.

0:39:40 Thomas: Leave it to Trump to file a brief that, you know, helps us understand why his position is stupid.

0:40:05 Thomas: Wasn't thinking that.

0:40:24 Thomas: I thought you were going to say who passed the Turing test.

0:40:24 Andrew: Yeah, I had the Turk test. Uh, so first, uh, what are the ways in which we know Twitter is biased and mean and violates the first amendment is they suppressed the crucial Hunter Biden laptop story.

0:40:39 Thomas: There's this a grain of truth to this, right. Because Right.

0:40:40 Andrew: No.

0:40:40 Thomas: They, was it Twitter? Or no, somebody did. Made They the decision to to attach the label vote, the election misinformation thing to this. That's actually a real thing.

0:40:50 Andrew: This lawsuit does not challenge the designation of, hey, this is, you know, misinformation. Here's the allegation. And again, no deletions, no insertions, no editorializing. This is actually what Donald Trump has alleged in open court. Quote, this is not an arcane First Amendment issue. Our Our democracy itself at stake. In a poll conducted shortly after the 2020 election, almost half of Biden voters in key states, quote, were unaware of the financial scandal enveloping Biden and his son Hunter, parenthesis, a story infamously censored by Twitter and Facebook, as well as ignored by the liberal media, end parenthesis. According to the poll, full awareness of the Hunter Biden scandal would have led 9.4% of Biden voters to abandon the Democratic candidate, flipping all six of the swing states he wanted, to Trump and giving him 311 electoral votes.

0:41:44 Thomas: Oh, yeah. I'm sure 10% of people were just one Hunter Biden story away from changing their vote.

0:41:50 Andrew: Yeah, and, you censored out because the liberal media and Facebook and, and this is not just attaching a misinformation information label to it. Or you might have on page 11, since taking office, the Biden administration has acted aggressively to bully, encourage, and collude with social media companies to censor speech that departs from the, quote, party line regarding COVID vaccines and treatments, one of the categories of disfavored speech. And yes, this is saying that Twitter's treatment of anti-vax, why don't you take some horse dewormer medication and UV rays is unconstitutional discrimination because they've said that Twitter should, quote, impose clear consequences for accounts that repeatedly violate platform policies.

In a July 15, 2021 press briefing, the Surgeon General explicitly said that CDC wanted social media companies to, quote, take action against those it considers to be spreading misinformation, which, yeah, of course. Who would you want a social media company not to take down misinformation? But, you know, because everything is all relative, misinformation is the same as information. This is the future that Republicans want. But fortunately, Republicans have also also contained in their own argument, given the argument that I think if you asked me

0:42:33 Thomas: Yeah,

0:43:21 Andrew: Represent Google before this Supreme Court, is the argument that I would give, I would say, maybe even word for word from this Trump brief, which is, I just want to set up the argument that they're making is tangential. Basically what they're saying, and this is stupid, is that particularly Democrats in Congress threatened Twitter and other social networks that they were going to amend or repeal Section 230 if they didn't get serious, if those social media companies did not get serious about combating misinformation and hate speech. And by the way, that is 100% true. Like Right, that happened. There were numerous hearings of people are using Twitter to spread dangerous misinformation.

0:44:08 Andrew: Stop it. And by the way, completely constitutional. The

0:44:14 Thomas: Yeah, not only that, as though you're pretending the right didn't do the exact same thing. That's literally what we're talking about here.

0:44:18 Andrew: Of course.

0:44:20 Thomas: The president, the ex-president is like, you threatening because of, yeah this is ridiculous.

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0:45:14 Thomas: In fact, 95% of patients reported an overall improvement in sleep quality when using MedKlein. MedKlein has been validated in seven independent clinical trials as the most effective natural treatment for heartburn, regurgitation, and many painful symptoms of GERD, all while you sleep. MedKlein's medical-grade gel-infused foam is built to last and provides cooling comfort, and an exceptional night's sleep for anyone using it. It will help if you have shoulder pain, rotator cuff injuries, arthritis, sleep injuries, so much more. It'll help with all that stuff. And customers can set up complimentary appointments with a MedKlein sleep specialist for personal assistance. The MedKlein team can help you find the best product to relieve your nighttime pain and truly sleep better. It also comes with a 60 night's sleep guarantee.

0:45:59 Thomas: So, get 20% off when you go MedKlein.com slash OA. You get 20% off and a better night's sleep today at MedKlein.com, slash OA, today get 20% off at MedKlein.com, slash OA.

0:46:18 Andrew: Implicitly threatening to regulate an industry if they don't self-regulate is how Congress has done business since 1787. Right. I've talked to you about my previous representation of the alcohol industry. Right. In the 90s, those late 90s, early 2000s, when I represented those companies and trade groups, the argument that was being made in Congress was, hey, we want you to voluntarily give us this information and voluntarily do certain things. And in exchange for that, we will not regulate you, right? We will not have to pass laws. Then, you know, of course, Congress got broken and so the alcohol industry stopped doing those implicit things. But it used to be the case that, that alcohol industries would not broadcast on TV ads for hard alcohol, during primetime hours.

0:47:09 Andrew: That was not, there was no law that stopped them from doing that. That was a request made by Congress that was sort voluntarily negotiated. They would provide certain reports and data to Congress about how they were conducting their marketing. And I've told you the role I played in some of that compliance. So this is not a thing. This is a stupid argument. But in explaining what a powerful potential threat Section 230 is, the Trump brief accidentally makes the argument that I think the pro-business wing of the Supreme Court is likely to glom onto, even would come into conflict with the conservative mindset part of the wing. And it is this. The coercive effects of government official statements and defendants must be assessed in the context of defendants, that is the social media companies, enormously valuable Section 230 immunity.

0:47:59 Andrew: Michael Beckerman, the former president of the industry trade group, the Internet Association, has stated that Section 230 is the one line of federal code that has created more economic value in this country than any other. In 2017, NERA, that is a nationally respected economics consulting firm, I've used their experts before, conducted a study that placed the value of Section 230 in the Digital Millennium Copyright Act at $40 billion annually.

0:48:25 Thomas: Wow, I believe it.

0:48:27 Andrew: Freed from this immunity by any burden to engage in responsible oversight for their content, the growth of social media platforms and their role in contemporary American society has been explosive. Twitter's more than $44 billion in market value is directly attributable to this immunity. Twitter hosts an immense volume of third-party content. It would be faced with economic ruin if it could be held liable for publishing defamatory content contained within those tweets. The risk is sufficiently material to disclose in their SEC filings. And then they quote from Twitter's SEC filings that say, yeah, if Section 230, there are various congressional efforts to restrict Section 230 and our current protections from liability for content moderation decisions and third-party content posted on our platform could decrease or change, potentially resulting in increased liability and higher litigation costs. So, absolutely.

0:49:12 Thomas: Yeah, I Completely believe all of this. Because You know, also, Andrew, if we, um, don't let children work in the mines anymore, that's going to cost the mining companies a lot of money.

0:49:17 Andrew: Is accidentally correct. Jack Dorsey admitted the critical importance of Section 230 and sworn testimony before Congress saying Section 230 is the Internet's most important law. If we didn't have those protections when we started Twitter 14 years ago, we could not start.

0:49:26 Thomas: Yeah.

0:49:39 Thomas: I agree, oof.

0:49:39 Andrew: During those hearings, Twitter stock price dropped 18% during the week of October 20th, 2020, hearing remained significantly below the earlier level throughout the week of the November 17th hearing. So I think all of that is correct. And so I think if you're asking, is there a chance that despite kind of right wing grassroots outrage at social media companies, that the very conservative Supreme Court might, nevertheless, continue to endorse an expansive reading of Section 230's immunization provisions. The reason to do that would be the greedy capitalistic wing of the Supreme Court, which I think has no interest in tanking multi-billion dollar companies that are transacting business over the Internet.

0:49:43 Thomas: Yeah.

0:50:30 Andrew: So if you are a fan of the current system, and nobody's a fan of the system in its entirety, but if you think it might be dangerous to remove that liability and begin to open up social media and other content providers to have liability for the stuff that's posted on their sites, allies will be the most pro-business, most pro-capitalist wing of the Supreme Court. So get ready for some strange bedfellows. And revisiting of the future of Section 230 and where it stands as a political football.

0:51:09 Thomas: Before, so, Andrew, you, you hadn't heard of the fact that Twitter and Facebook limited the Hunter Biden story?

0:51:14 Andrew: I had not.

0:51:16 Thomas: For real, um, they did. And I think it's something that's important. It's one of those, like, you, not both sides, but, like, it, it it is a reason to, like, you make sure, occasionally, we're not in our echo chamber. And I'm not talking about the one Andrew recorded in last week, um, no, it's true. It's actually, um, I think it's a decision that wasn't correct. It was, it was, when it was right before the election, uh, there was that New York Post story about it. And yeah, the story is mostly bullshit. But Twitter and Facebook decided to limit the search result, the ability to search for it, because they labeled it as, like, election misinformation. And did. So, like, that part of the allegations, there's... there's a a kernel of truth there. And I think it's important to recognize that. Otherwise, I think if, if, if we don't recognize that and we're in denial of facts like that, then I think it makes it easier for people on the other side to just be like, well, look, they don't even know what they're talking about. So I just want to make sure.

0:52:02 Andrew: So Noted. And I agree with you that, mean, I think that is the flip side of the last five minutes, that I would not be so cavalier as to say, you I'm thinking like the dog in the house that's on fire, right? Right. Everything is fine when you have a small handful of multibillion dollar companies that have unfettered control over How They display information and how that's transmitted to you. It's why I think that the pending Gonzalez case is a really, really interesting case, because the YouTube algorithm is absolutely 100% radicalizing folks right now. So I don't mean to suggest that, like, you certainly not in Elon Musk's Twitter, but,

0:52:02 Thomas: Yeah. Oh, yeah. Yeah, no, I was just

0:52:47 Andrew: Right.

0:52:47 Thomas: Going to say, if anything illustrates that point, it's Elon Musk taking over Twitter.

0:52:51 Andrew: Yeah. Yeah, so we're not in Twitter. We trust. I think those are really good points. I think that it there is a kernel of a fair argument. I mean, the Hunter Biden laptop story is the stupidest thing I've ever seen. But, you nevertheless, like, if you ask, should a small number of companies have, you it a good model where the only restraint on that is sort of the capitalist profit motive? And probably not, right? So certainly agree that it's worth making sure we talk about that in full context. I did not know that story. And part of that is just, I, I I went on GAM to do the like Hunter Biden laptop movie.

0:53:25 Thomas: It's hard. Yeah, now there's so much crap surrounded. Yeah now I listen to that one.

0:53:30 Andrew: Right. And I know less about what's on Hunter Biden's laptop than I did going into it. Right? Like, yeah.

0:53:35 Thomas: Well, it is also completely irrelevant to anything. I mean, again, it's like we have, even if you took all the facts as stated by the right, Trump, um, put his own family in a position to profit like in front of us completely in front of us like for all to see, Jared is, you know, getting billions from the Saudis now because of the power that Trump gave him. I mean, it's just, it's, it's ridiculous.

0:53:39 Andrew: Yeah. I, day one. Yeah, yeah, yeah yeah. Yeah. Yeah.

0:54:01 Andrew: Kellyanne Conway hawked Ivanka's crap from the Oval Office and then said, oh, what are you going to. Yeah. Oh, wait for my handcuffs for the Hatch Act.

0:54:01 Thomas: Yeah.

0:54:10 Thomas: So really responsible reporting on this should be pointing that out every single time. Trump, someone who has helped his family members make billions of dollars off of the White House inappropriately and against the law as it was previously understood, has accused Hunter Biden of doing drugs or whatever. Like it's nothing.

0:54:15 Andrew: Absolutely. Oh, well, see, recommended that Kellyanke Conway be fired. Right? Trump's Office of Legal Counsel said this is as clear a violation of the Hatch Act. It is repeated. It is willful. There is nothing that will deter her from continuing to violate the law unless you fire her. And by the way, all we can do is send sternly worded crunch wraps. And you appointed us, Mr. President.

0:54:30 Thomas: Yeah.

0:54:48 Thomas: Yep. The differing standards is to go back to the beginning point about how much this stuff favors the right. The media holds the left to versus the right is a major source of that. And it's also just a a product of when you're doing scandal after scandal after scandal in plain sight. It's just impossible for the human brain to comprehend that much misconduct appropriately. So, yeah, but anyway, all right, thanks for the updated 230 breakdown and I hate you for calling me Clarence Thomas forever and I'm never going to forgive you for that.

0:55:13 Andrew: Yeah. That was the whole point.

0:55:20 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,

0:55:29 Thomas: And now it's time to thank our Hall of Famers, our all-time greats. This is the third quartile.

0:55:36 Andrew: No, wait.

0:55:38 Thomas: The third all quarter, yeah, and Hall of Famers, again, benefits than ever, and again, once we get to that extended schedule, you are hearing, there's even more ads you aren't hearing, let's just put it that way. I know it's a weird way it's weird way to think of things, but if there's even more adds you're not hearing, then that's a benefit you're getting that you don't even realize. And why don't you start us off thanking our third quartile? Ah,

0:56:02 Andrew: And a big thank you to Pablo Escargo's Heroin Snails. Love that one. Don Quixote, don't laugh, Don Quijote may deliver you a swift kick in the ass, I learned the name in a book, Brian K., Penelope is glad Sydney got sanctioned for terpsichoree, Leo G. still waiting for a Seattle live show that's gonna happen, Angry Macface April Poff, April Conrad Michaels forever, yes Abortion is pro-life agreed, this is not the greatest patron name, no, this is just a tribute. Sir Wilfred Snibblesnabble of the Gribble Pibble, that's a Knowledge Fight crossover, the dows another October birthday here, happy birthday Andrew and Morgan. Well, thank you Jake, why does Fetterman, the largest of the Pennsylvania elected officials, not simply eat the GOP Senate delegation.

0:56:20 Thomas: Yeah. Oh, okay,

0:56:51 Andrew: Love that one men of quality do not fear equality. Christopher Brown, New York's electoral fusion and judicial elections combined to give me 10 candidates for 10 races, all running as both Democrats and Republicans. Wow. Carl, Jack R., Willie.

0:56:51 Thomas: That's a good Futurama uh, quote, right, I like that, what yeah.

0:57:11 Andrew: I passed the bar. So now it's time for a Philly live show 2022. There is still time, right? Right. Probably not in 2022, but Philly's on the list, man. Absolutely. Vaccinated Aussie in Germany. If I get the next T3BE right, can you top up my supply of Vegemite and Tim Tams, please? Darth Mandy Pants, learn at hand job, copyright 2022, all rights reserved, Lou and Seattle, Pete, take it away, Thomas.

0:57:18 Thomas: Yeah. And thank you to Robert M. blah blah blah's law podcast, Impossible Hamburglar Society, weirdo cuddleism is a religious belief, leaf about being sincerely held, still good. Ballerina live show with a cup. Yeah. I wonder if they're going to win the cup this year. I don't know. I feel like they're not quite as good, but I mean, they're still so good. So that'll be interesting. Polly Hernandez, Andrew, will you represent my company? 100% liable. This is legally actionable LLC.

0:58:05 Thomas: Fred from Colorado, keep Colorado and abortion access haven with LGBTQ legal protection, support Colorado State House, that's another Colorado patriot, maybe that's another place that we gotta do a live show. Ah, we owe a lot of people a live show. Yeah, what happened to Thomas's feet? Jason Copas, Bob Coburn, unemployed hacker for hire. Hmm. Stop calling him Uncle Frank. Nate Drex has to call him dad. You do not like treason, so you say. Try it, try it, and you may civilpoliticsradio.com, Fridays at 7pm Eastern, around Valley Free Radio. John Bilderbeck, Ian Hamilton, Desdivania, Comrade Michaels, Philly Basement Bar raises a toast to everyone who volunteered this election cycle and offers you a free pint. Jennifer

0:58:16 Andrew: Yeah oh, we owe Fred a live show, absolutely.

0:58:51 Andrew: Nice,

0:58:51 Thomas: Kratch, I like boobs and I'm tired of pretending I don't. Again, why are you pretending I know?

0:58:53 Andrew: There, you go.

0:58:55 Thomas: Stop Aluata Slander, Jeff Gelbach, it's not illegal to hope bad things happen to Samuel Alito.

0:58:55 Andrew: Nope. Yeah.

0:59:02 Thomas: And Balticate. Thank you so much. Looking forward to the final quartile next time.

0:59:08 Clip: Sometimes you eat the bar, and sometimes the bar will eat you.

0:59:14 Thomas: And now it's time for T3B answer time. Another look, this book seems to be a similar pattern, or it's either a horrible trick or a basically correct thing, or, you know, maybe I misanalyzed it. We'll see. What's our answer here?

0:59:27 Andrew: All Right. This was man charged with larceny of a coat from a barstool. State puts on a witness who testified that the man said before he took the coat, "Gosh, I'm so forgetful. I must have left this here hours ago. It could easily have gone missing." Then it says the judge declared a mistrial rather than an acquittal. Can the man be retried? Now, fact pattern is super weird because as I read it, that testimony, the reason for the mistrial is that that testimony looks like inadmissible hearsay, right? So all you know, maybe it comes out, it's too late to prevent it. And so then the judge says it's a mistrial. Can the man be retried? You went with A, yes, this retrial will not offend the federal constitution. And Thomas, that's absolutely correct.

0:59:53 Thomas: Mm-hmm. Mm-huh. Ah, okay.

1:00:11 Andrew: It is perfectly reasonable to retry somebody for the same offense, notwithstanding the double jeopardy clause. B, under the federal constitution, retrial requires new evidence. That is silly, not the law. C, yes, if the man can be proved guilty.

1:00:22 Thomas: Yep. All so silly.

1:00:28 Andrew: It's definitely not. D, yes. Under the Erie Doctrine, the applies in civil cases. It involves whether you apply federal procedure or state procedure to state actions that are pending in federal court. It has absolutely nothing to do with a criminal indictment. So answer A, and great job.

1:00:31 Thomas: All right, let's hear it. What's the Erie Doctrine?

1:00:45 Thomas: Wow. Thank you. Why don't we go to this week's winner and see who else wasn't fooled this time. But boy, I think I have a good record on this book, but who knows if it'll last. Let's see who this week's big winner is. And it's my turn to pick the T3BE winner because Andrew's still getting his, uh, cavern work done or whatever the echo problem is. So, so, so we still haven't figured out our alternative to Twitter. Until we do, I guess we'll just keep using Twitter like we're musicians the on Titanic, you know? We'll just be still T3B-ing on Twitter until we figure out what other thing makes sense for this format.

And so this week's winner is Jaeger Koss, who says, "I'm late, so no research and all snark for my T3BE answer this week. It's A. You don't get to be the world number one for incarceration if you give up perfectly good opportunities to lock people up at every mistrial.

Also, the other answers all sound like nonsense to me." Uh, Jaeger, you're completely right, and for not exactly the right reason, but I mean, maybe, kind of, I don't know, I can't tell you because I'm not the lawyer. But anyway, either way, well done. Thanks for being this week's winner

1:00:57 Andrew: Yeah.

1:01:54 Thomas: On T3BE, as long as it's on Twitter for now. Um, still play there, and we'll see what happens later. Congrats. That's our show. Thanks so much for listening. I hope you have a very happy Thanksgiving to all those who observe. I don't know.

1:02:08 Andrew: Is it an observance? More of a celebration, right? Yeah. Ingest through all those who ingest. Go on Patreon.com. Tell us your favorite Thanksgiving side dishes. There we go.

1:02:11 Thomas: Yeah. In jest to all Those Who In Jest. And also, OA will be coming at you regardless. We don't take any time off because that's just how we are, because we know, you know, it's it's all long been my policy. I say it every year, Andrew, sometimes when you're traveling to visit your conservative crap family, that's the time when you need us the most and that's how I feel about my podcast that I listen to, so we try to be the change that we want to see in the world so you'll have an OA in the usual time, and then the week week after that, you might have double the OA.

1:02:23 Andrew: No.

1:02:35 Andrew: Yep. There you go. You'll have so much OA, you can't stand it anymore.

1:02:49 Thomas: Looking forward to it. We'll see you then.

1:02:51 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.

1:03:24 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.