Could Tylenol Sue Trump and RFK Jr. for Libel?

Transcript

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

0:00:01 Jenessa: It is critical to note this is one of the only pain medications approved for use in pregnancy. So, of course, make sure you suffer.

0:00:17 Matt: Well, it is biblical doctrine that you are supposed to suffer during pregnancy.

0:00:30 Jenessa: Welcome to Opening Arguments, the podcast that analyzes law and the news. With me is Matt Cameron, immigration attorney.

0:00:37 Matt: And of course, with me is Jenessa Seymour, former scientist and current voting rights attorney. Today, we're going to be hitting a grab bag of things requested by patrons, as we often like to do. We love putting out a post once a week whenever we can, whenever there's something that's not just completely dominating the headlines that we have to talk about. And there's a lot going on this week, but there was no one clear story. Got a bunch of great stuff to talk about, ranging from, of course, the fact that we now have established that apparently Tylenol is the main cause of autism. So we're gonna break that down, because I'm sure that's both true and and in no way libelously actionable.

0:01:06 Jenessa: Oh, yeah, totally fine. Totally chill. My fellow acetaminophen Americans are not revolting.

0:01:12 Matt: And yeah, we got to talk about what is going on with the FCC and what I think is probably the single biggest threat to free speech in the Trump administration so far. So far, of course, I have to underline in September 2025. Got to break that down a bit. Also, we're going to talk just a few minutes, a quick update about one of my favorite Trump world characters, Ed Martin, who is of course no longer the US attorney, but is still a raving lunatic within the Department of Justice. Came out swinging for Alex Jones today in a very weird event that came and went, but we still have to talk about it.

0:01:44 Jenessa: Baffling.

0:01:45 Matt: Yeah, we got a couple other grab bag type items to get through. And then we're going to come back with a little personal footnote from Jenessa Seymour. You're going tell us about something I know nothing about, which is your upcoming sitting for the patent bar, which I'm sure many people don't even know there's a bar within the bar that you can take. Sure.

0:02:00 Jenessa: Yeah, totally not worrisome at all. Separate exam.

0:02:04 Matt: And just certain kind of masochist will sit down and choose to do that. So we'll find out who that person is at the end of today's episode and today's footnote. Not, of course, the Eugenessa Ari footnote, but this is an interesting little personal footnote that I thought would be fun to talk about. I don't know anything about it. I'm excited to learn. So let's come back and we will talk about Tylenol, I guess.

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0:02:27 Matt: So, we have multiple requests from patrons this week, including from Shadley and Riley, and from Sam, among others, asking about Tylenol's possible defamation case against the Trump administration. And out of context, it's just one of those sentences that if I sent back to myself a couple of years ago. I have it 10 years ago. Tylenol's defamation case against the Trump administration. Just imagine just hearing yourself saying that if you could just like hear that clip in 2015. Yeah. I actually, speaking of masochism, I did watch a lot of the Charlie Kirk funeral services. I was just curious to see what kind of Christofascism is coming down the pipe. And it's scary, folks. It is scary, I will say. Trump, of course, did what Trump always does. And he couldn't help himself and talked about how much Charlie Kirk loved Donald Trump. Went off script a bit. I think He started on the teleprompter. He was doing okay for a little while. And then he had this whole thing about how much Charlie Kirk would have loved this announcement he's about to make about how they're going to make the biggest announcement they've ever made about autism. And of course, that got my attention as one of those adults who has neurotypical traits. He's never been diagnosed with anything. But again, I want to be careful not to say that I'm on the spectrum, but it is of great interest to me. And it certainly explains a lot about my life. We weren't looking for that sort of thing when I was a kid. And I've always gotten along very, very well with autistic people, for what that's worth. And I think that has to mean something. So I am very concerned about the rhetoric that I've been hearing from the Trump administration about autistic people. What is going on? What is with this announcement? And where is this coming from? As a woman of science, can you explain to me what this is about?

0:03:57 Jenessa: All right just to hit the science real quick because I'm sure people have picked up at this point, the general gist of the news that this is BS. This didn't come completely out of nowhere, but like mostly it came out of no where. It's sort of like if you were searching around with no expertise whatsoever and just trying to find like any search term plus autism, you might have come across, like always, it's also going to pull up ADHD and autism because, you know, neurodivergence is all a giant spectrum.

0:04:35 Jenessa: There are a few studies that have found a correlation with acetaminophen use in pregnancy and various neurodivergences. Most studies don't find it. So the scientific question is not, does it cause it? Because if most studies can't even find a correlation, correlation it would be very difficult to imagine there is causation hiding in there. The interesting scientific question is why do you find it and why do we not? And it's almost certainly even according to the people who found the correlation probably those studies didn't control for confounding factors. So why is the pregnant person taking acetaminophen?

0:05:18 Matt: I was wondering that. Exactly. Right.

0:05:23 Jenessa: To prevent fevers. And we know there is a possibility that maternal fevers could be causing changes in fetal brain development. Yeah.

0:05:34 Matt: That makes total sense. You're talking about body temperature, right? That totally makes sense.

0:05:38 Jenessa: Whatever infection the pregnant person has that caused them to get a fever that caused him to take Tylenol could possibly affect fetal grain development. It could literally be if autistic people are experiencing more pain, maybe in general, maybe in pregnancy. Maybe it's just autistic moms have autistic babies and they're also taking more Tylenol. There are some studies maybe showing higher pain sensitivity, sometimes showing lower pain sensitivity in neurodivergent people. It varies. There's like 101 reasons this could be happening. Nobody, nobody has proposed, nobody at least serious in this community has proposed. Oh oh yeah, there's a causal relationship here or else we would at least consistently find a correlation and we don't.

0:06:33 Jenessa: So this was kind of just a curious question because it could get us to an actual answer if we figure out, well, what is the Tylenol correlated with that might be correlated with the other thing that might causal to the other things? And instead we're just gonna go, oh yeah one correlation equals causation because, you know, whatever.

0:06:54 Matt: Well, how much which acetaminophen are they saying you have to take to allegedly, right? Okay. I see your hands in the air.

0:07:00 Jenessa: There's no number because it's not a thing.

0:07:02 Matt: Right. Okay .I was just wondering if there's, I mean, like a threshold, because like you're saying, that was my first thought was that people that take a lot of acetaminophene probably do have other health problems. And maybe there's other things we should be looking at as correlative to this. You know, again, I am not a man of science, but I basically understand how these things work. This announcement is not because there was like a new publication in, you know science or something right like a reputable journal

0:07:24 Jenessa: There are some studies finding weak correlations in reputable journals. Even the people who publish those studies have been writing like, we do not and have never proposed that this is causal. Like, please stop. You'll always find I'm sure you'll go out there and find somebody with a PhD who is actually qualified who will say it's causal, but the overwhelming consensus is like, no, whatever is causing us to sometimes find a correlation is not the cause. Was and it's exactly that issue you know studies that have tried to look at all kinds of different things that could be causing this how do you get somebody to document you know how often were they exposed to environmental toxins I don't know how would I know that like what am I supposed how am I supposed to even document that if I don'T know what's happening to me you know there's all kinds of issues with this talk to any of these researchers and often you are finding a lot of of neurotypical people who want to do research about neurodivergent people. But if they actually ask, autistic people and their parents are often saying like, yeah, I'm a lot less interested in the cause and I'm more interested in how to help myself or my child adapt to a world designed for neurotypical people to adapt to any particular symptom they're dealing with. That's what I care about is what are current environmental things I can do to help my kid because I don't want to eugenics my kid

0:09:06 Jenessa: Or myself I would like to be here and be happy and healthy so like maybe focus on that Okay, so yeah, scientifically this is nothing which is important from a legal perspective because if we're talking defamation that's step one right

0:09:18 Matt: Good start yes yeah no and I just want to say just before we move on that I mean just the remarks I just wanted to read for just a second So people can understand, I mean and I'm again I'm sitting here I I just did two intensive hours of reading about one of my special interests we don't have to get into it I'm standing here without my socks on because I can't wear socks and I'm actually very annoyed by the lighting in my office right now I should have turned it off as I usually do you. But this is where I'm coming from, just to give you some data points. Trump's talking about how a recent survey says one in 12 people or babies are born with autism. He says, how bad is that? And that just got my hackles up, of course. That's for young boys, baby boys, but also girls. Obviously, there was something really wrong, and we think we know what that is. I think he used the word disease at a different point to talk about it. And it's just, I mean, these are different kinds of brains. We're talking about different kinds OF brains. It is a spectrum. There's a lot of different ways to be autistic. When he's talking this ridiculous thing about about how 20 years ago it's 1 in 10 ,000 and now it's, you know, 1 in 12. It's because, as we both know, you knows, public schools were not looking for this. They weren't screening for it.

0:10:26 Matt: They didn't have IEPs the way they have now. And certainly when Donald Trump was growing up, nobody was talking about it or looking for it, except in the most extreme and obvious cases. That's just so obvious to me. The whole thing goes to how this administration, just the contempt that it has for science and for scientists and for people who use the scientific method. And now we have not just a lawyer, but a very bad lawyer in charge of HHS making these decisions.

0:10:50 Jenessa: I forgot he was a lawyer.

0:10:52 Matt: It's easy to forget. Can't blame you there. A guy who's got really strong opinions about medicine and science who has no qualifications in any of it.

0:11:02 Jenessa: And a guy who's not personally affected by this. So it's really easy for him to say. The whole thing is so frustrating. Even when we were talking about, oh, he says 1 in 12, and that makes it sound so bad as he says it, that's 8%.

0:11:19 Matt: You're right. And I don't have the kind of neurodivergence, but I can do that equation. So thank you.

0:11:23 Jenessa: I think that's probably a little high for an estimate, but it doesn't sound super off. Like ADHD estimates are currently 5%, which I happen to think is a little low. I thinkthat's missing quite a few people. It's not like totally wild. And the problem is they want you to believe that everyone they're talking about is this caricature they're going to give you of somebody who is completely nonverbal, noninteractive, can't live independently and like I don't want to throw those people under the bus those kids exist those adults exist and they have every right to be here and they're part of our community and you can't get to them without getting to me you're going through me to get to them but they are a minority of the community they are one part of the spectrum of the community uh in many cases this is autism plus intellectual disabilities or other developmental mental disabilities and they want you to think of their version of like a worst case scenario of how terrible it is and it's like okay yes there are people struggling on all ends of the spectrum but like neurotypical people are struggling too like everybody just needs to freaking relax parenting is hard being an adult is hard everything's freaking hard you're only making it harder for everybody mm

0:12:41 Matt: Yeah and I do want to remind everybody that we don't talk about Asperger's anymore because Hans Asperger was a Nazi who contributed. He did a lot of work on autism and a lot actually, I think, very good work from what I understand. I haven't read a couple of books about this. Autism was briefly one of my special interests and just to get meta about it, but he condemned children to death and he participated in a system. I mean, he did actually, it's a mixed bag. There's no, sorry, there's no mixed bag with Nazis. He was still a Nazi. But at the end of the day, there is a reason we don't talk about Aspergers anymore because it's just not, it is It's not even a name we want associated with any of this because that's where these things go. And the way we're talking about mental health and disabilities and the homeless right now, it's all of a piece, right? It's all the same thing.

0:13:27 Jenessa: That whole idea of like oh there's autism and then there's asperger's syndrome there's controversial historical takes of the extent to which he meant to do it this way but at its core that was differentiating the kids that were going to be saved because they had value to society and the ones who were going to go to a death camp yeah that's why we don't make this distinction anymore between like oh the smart ones like no there's people with higher support needs and people with lower support needs and we're still part of the same group that's where this ends that is always where this ends if you let people start getting away with

0:13:49 Matt: That's right. That's fine. That's great. That's fair. And this kind of language is, yeah. So again, we're not saying that's what's going right now. But this is what we have to guard against. And it's certainly adjacent, yeah? And of course, I have to point out before we move on that Tylenol only became available without a prescription in the United States in 1960s. So there weren't autistic people before 1960, I guess is...

0:14:12 Jenessa: This it's where it starts yeah

0:14:26 Matt: Okay. Or I guess just the people were getting prescriptions. I don't think it was basically acetaminophen, I think, because it was started to use in the 50s.

0:14:26 Jenessa: Apparently not it was like it technically was invented earlier but in terms of like commercial use no it wasn't like on the counter in the drugstore it clearly there were autistic people throughout all of history because it's just a different way of your brain peeing

0:14:39 Matt: Right. Some version of it. Right? Have you read a single thing about Isaac Newton? Probably one of history's greatest autists. Yeah. No, of course. Anyway, okay. We could talk about this quite a while, but let's talk about defamation, the

0:14:55 Jenessa: Turing Okay, knowing that this is beyond bullshit and so it's a false statement that is step one of defamation could could you sue over this Tylenol? I'll skip the elements and cut straight to the chase when it comes to the administration. Sovereign immunity is gonna pretty much be an absolute bar to this. So what is sovereign immunity? This is gonna seem strange because people hear about the government getting sued all the time, but the default rule is you cannot sue the federal or state government. That would include suing specific individuals individuals who acted in their official capacity unless you waive this immunity. So the state gets this from the 11th Amendment. The federal government is pretty much just common law, like you couldn't sue the king, the sovereign. Yeah. So it started in like English common law for RFK Jr. as secretary of HHS to start announcing some health finding they came up with. For Trump to repeat what his cabinet member said, it's obviously acting in their official capacity. Wildly incompetently, but still within their capacity. In many cases, the Fed and states have waived their immunity and allow themselves to be sued. There is the Federal Tort Claims Act, which waives sovereign immunity for most torts for the federal government, but they list a bunch of exceptions. These are torts for which you cannot sue the Fed. And in that list is slander and libel. And it also says very clearly, this is the only torts waiver for the entire Fed. So if there is anything explicitly excluded here, any federal employee acting within their official capacity, they are going to get absolute immunity under sovereign immunity if you tried to sue them for that official duty. Duty. Obviously, if they're in their personal private capacity, if he just was like, I think Matt Cameron is cheating his clients, yeah, you could totally sue that. That's got nothing to do with his job. This has everything to do with their job. So you're pretty much screwed if you want to come after them

0:15:55 Matt: King. That's sovereign immunity, right? I mean, that's really what it comes back to, is you couldn't see the king. Yeah. Sure.

0:17:33 Jenessa: For monetary damages. Under the Administrative Procedures Act, you can still sue various executive agencies to get injunctions you know if they start putting this up on the website um in general the fact that they're saying it any order that comes out of like oh we're going to on this basis say that you should blah blah blah they could totally try to get an injunction the basis would be if the decision is there's a long list but I pulled out a couple I think are relevant. If the decision was arbitrary and capricious, that has a long legal history, that definition of basically just you made your decision on the basis of nothing.

0:18:20 Jenessa: Abuse of discretion, that one's iffy. It's probably within their discretion to make this kind of decision.

0:18:27 Matt: And these are APA, Administrative Procedures Act claims, basically. Yeah, sure.

0:18:29 Jenessa: Yes, yes, that's correct. Without observance of procedure required by law, I think you could argue there are procedures that HHS needs to follow to come up with these standards. They almost definitionally can't be following if they're coming to this conclusion.

0:18:42 Matt: How definitive was the statement? Were they actually saying there's a direct link?

0:18:50 Jenessa: So it's been said by multiple people in multiple places over and over again. So it is going to be tough to pin down exactly who said what and when. My understanding, one critical point is they keep saying Tylenol. So by saying not acetaminophen, but Tylenrol, the brand name, it's much more more obvious that you are invoking, I know that's not technically an individual, but corporate people. Certainly you are damaging their brand. You're calling out a specific corporation. If you just said a chemical, you might have an easier time getting away with this.

0:19:10 Matt: Capital T. Right. Yeah? No.

0:19:29 Jenessa: My understanding is they have pretty explicitly said like, this causes autism. Like at a minimum, like pregnant people stop. Well, they're definitely not saying pregnant people. I'm sure it's like women. Stop stop doing this ever. Stop having pain relief in pregnancy. It is critical to note this is one of the only pain medications approved for use in pregnancy, so of course it's just make sure you suffer. Yeah, take away the only thing. Oh, by the way, have more fevers, which could easily increase miscarriages, increase neurodevelopmental disorders like autism. Like, yeah, just whatever.

0:19:52 Matt: I didn't even think of that. So take that away too. Wow.

0:20:10 Matt: Well, it is biblical doctrine that you are supposed to suffer during pregnancy.

0:20:12 Jenessa: Exactly I literally I'm not kidding I think that is part of their evangelical worldview is you should suffer in pregnancy and birth so perfect take away a pain med that's not a problem they could try to get an injunction if there was some specifics around stop whatever policy you're gonna initiate if it comes to like just stop defaming us you might be able to pull it off I mean technically you'd be suing for a tort. The immunity is usually about monetary damages. There's tons of exceptions for injunctions to say, the courts have said under common law that, yeah, of course, if you're violating a law, I can sue you and say, please stop violating a law. It's often reserved for constitutional rights. Defamation is more, it's all wishy -washy. So maybe they could try to get an injunction depending on what specifically is going on. The place where I think it will be way more solid is coming after anybody who repeats this. Just to hit those defamation elements real quick, false statement. It is a statement that is factual, not opinion -based. It's like X causes Y. That's very straightforward there. Publication or communication to a third party. I know when people hear publication, they kind of tend to assume that means like either that you have to write it down or you have to like say it on the news. That can be like gossip. It's a really broad terminology.

0:20:16 Matt: It's in Genesis. Yeah right. A Facebook post, right? I mean, it could be anything.

0:21:49 Jenessa: For purely private individuals, it could literally be private gossiping that gets around town is enough. So this is more than enough. Damages, obvious. It might be per se because you're saying like they are bad at their business. Definitely Definitely in general, their stocks are tanking. This is never going to go away. People are going to believe this terrible thing.

0:22:16 Matt: Sure, they heard it from the president, and I mean, a president and HHS secretary that no one should take seriously, but apparently people still do, and it is still the president saying it, and coming back to your point about how this is capital T Tylenol, the brand name, because we all know, going to a drugstore, that you can go to the one right next to the Tylenols, and for a few bucks less, you can get a acetaminophen, generics.

0:22:37 Jenessa: It's identical chemically.

0:22:39 Matt: It's interesting to me, it's like they're really provoking the company at that point. They don't have to say Tylenol.

0:22:43 Jenessa: The only thing I can think, okay, if I try to imagine like a more logical world where there was a medication that was common over the counter, probably what you would do in any of these press things, you would say the chemical name and you would probably say, commonly known as brand name or marketed as brand name. As soon as it's gone generic, it is really hard to like call out because not only is there Tylenol and a generic, in theory you can, acetaminophen exists in other brand name products as well. So it's not just Tylenols.

0:23:22 Matt: Ficodin, right, has acetaminophene with opiates, right?

0:23:25 Jenessa: Yeah, actually that's certain opioids. That's exactly their function is to combine multiple medications, cough syrups. So yeah, calling them out specifically is going to make this way easier. They are going to be a public figure. Everybody knows the names. You're going to have to hit actual malice. But like, here's the thing. Either you know it's false, you have serious doubts that it's true, or you are deliberately avoiding confirming the accuracy before you publish.

0:23:56 Jenessa: Yeah, you're going to check that box. I think even for RFK Jr., who has convinced himself that this is true, you don't get to be delusional. Like one of the standards is ignored obvious contradictory evidence or used a methodology for verifying facts that was so flawed it suggested a willful blindness to the risk or falsity. You're not getting around this.

0:24:21 Matt: So frustrating because you're the HHS. There should be such a high standard for the things they put out. It should be the highest standard. People are listening to you.

0:24:29 Jenessa: They're going to almost certainly get sovereign immunity from monetary damages, getting injunctions, maybe depending on if they put out a policy related to this. But to get everybody else, if you are repeating it, you're not immune because the president said it. Like, that doesn't make it okay. Your average person could probably the first time get away with saying, like, I was just repeating what the secretary of HHS said. Like, I had perfectly good reason to believe. I rely on that.

0:25:03 Matt: It's a solid defense.

0:25:03 Jenessa: What you would expect is that Tylenol is watching everyone like a hawk, and you're going to get a cease and desist that says, hey, here's all the evidence that's false. Say it again. Like I dare you. Because the second time you say it, you can no longer deny, essentially actual malice. You knew or should have known you were lying and you said it again anyway. Take two, I think they will get anybody if they sent them a cease and desist.

0:25:32 Matt: I just have to point out the insanity that we're talking about the fact that you could be sued for libel for repeating something said by one of the premier health agencies in the world, or that should be, I guess. I don't know if it really is, but it feels like it should be.

0:25:43 Jenessa: It is bananas. Every health organization has been like dropping statements. The World Health Organization, American Medical Association, American College of Obstetrics and Gynecology, Like, everybody is dropping statements about, like, this is nonsense, talk to your doctor before you take any medication if you are pregnant, because, like—you know, pregnancy is its own thing, and you want to make sure you're being safe, but, like… No! Keep doing what you're doing. We want you to be safe and healthy. The risks of not taking it when you have a fever, oh my god, it is purely the sovereign immunity, I think, that is going to protect them. Anybody else just repeating their words, I think there is a possibility news organizations playing what they say may have to comment on it.

0:26:36 Jenessa: If you just play it and say, well, Kennedy said that, moving on, you're probably not liable, right? But if you indicate you agree, you could get hit with the suit or get hit with that cease and desist and need to not say it again. Could you have to say hey, Kennedy just said this to protect my own ass from defamation, I'm gonna tell you it's false. Like maybe, it is very close to the line.

0:27:05 Matt: Still, I can't totally get my head around this. And I guess like, so if he just comes out tomorrow and says that Campbell's tomato soup causes leprosy, like, I mean, can they just, right, based on nothing?

0:27:12 Jenessa: Then what? It would be the same thing. As long as he says it causes a disease, I guess if he said it causes you to be broke, you'd be like, well, that's not within the official capacity of HHS. So yeah,

0:27:26 Matt: I mean having eaten a lot of Campbell's Tomato Soup, it is an indicator that you might be broke, but it's not, that's correlation, not causation.

0:27:33 Jenessa: There you go. Look, I am no defamation expert. I'm running through the elements the way I would have run through it in law school. The immunity stuff is something I studied pretty extensively. I was going through here running all the options on like absolute and qualified. And there's absolute and qualified privileges specific to defamation. And it all just ends up being not necessary because the sovereign seems so clear.

0:27:59 Matt: Right. So I can drop a footnote here from my own experience before we move on, which is that I did look into trying to sue ICE for defamation once because I had a client that ICE, this is a very prominent case from a few years ago, that was getting a lot of attention, and ICE decided they were going to shut it down by saying that my client had a criminal record, which he didn't. That's one of the ultimate forms of libel, right?

0:28:20 Jenessa: Yeah. Easy.

0:28:20 Matt: If I just went out in public and said, hey, you guys know that Jenessa has a criminal report, right, like, again, and nobody should be judged for that, and it's not something that's private information, and it is something people judge very hard for, like just the fact that there is a criminal record, not saying what it is, but just the act that she's been arrested or she's been charged with a crime, right?

0:28:37 Jenessa: Oh, Yeah. Right.

0:28:37 Matt: That's classic defamation if anybody else did it. But I called them and I was like, can you please issue a correction? You can't just go out and say my client has a record because you want to. And they're like, no, we're not doing that. It's old news at this point. That's what I was told. It was old news. I mean, this is days ago. And I looked into it and it's even worse. The FTCA exception I found, you're talking about, but it's Even worse for law enforcement.

0:29:03 Matt: They can just say whatever they want about you. And that just seems wrong. I mean, it is wrong, obviously, but they need more power.

0:29:09 Jenessa: Yeah, it was strange to me that, like, there's the FTCA that says, like We waive our immunity, you can sue us for a tort And then it's like, but not these, laundry list of torts It's like alright, well then what the hell was the point of this?

0:29:25 Matt: Yeah, yeah. So it was very interesting. Thank you. I didn't know anything about that. And I'm just going to go turn down the lights real quick because my senses are being assaulted. And we'll come back and talk a little bit about what's going on with Jimmy Kimmel and the FCC.

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0:31:21 Matt: Okay, we're back and my office is dimmer. I was very excited when I learned that this office just came with a dimmer switch. I want to talk a little bit about the last time that we recorded on Rapid Response Friday, the Jimmy Kimmel news had just dropped, but we hadn't had the full news about the FCC's interference, which we're just talking to Jake Tapper today, actually. We're going to be airing that episode closer to the time his book releases in a couple of weeks. And he had mentioned several times, and we talked about it a bit, about this being just about the worst First Amendment violation that he'd heard of, right? An attack on the press, right, of the FCC basically saying in public, Brendan Carr of the FTC saying in public Jimmy Kimmels, frankly, tepid comments, And he was working from the best information that he had about the shooter at the time. It wasn't really mocking anything. There was no, like, it wasn't even really a joke. It was just a statement about how they were trying to cover for him. And I just want to thank Devin Hollywood for this question, which got a lot of likes on Patreon. And that's again at patreon .com slash law if you want to participate and pitch in with some ideas. Asking if this falls under the First Amendment, how this works. When Brendan Carr of the FCC says something like, when you see stuff like this, I mean, we can do the easy way or the hard way. These companies can find ways to change their conduct and take action, frankly, on Kimmel or there's going to be additional work for the FCC ahead. And as Jake Tepper noted today when we were talking about this, I hadn't caught this, but he specifically mentioned Disney, not ABC. And this is an ABC show that Kimmel had. And he mentioned that because there's a big merger happening. As everyone has correctly noted, that is the kind of thing that Trump loves to interfere with at this point. So they're directly threatening not just FCC action, but potentially interfere with a merger, which is a pretty big deal. And that's a huge incentive for companies. So the question here from Devin, and it is an interesting one, because the First Amendment starts with Congress shall pass no law.

0:33:07 Matt: So is it a First Amendment violation for the FCC to step in, which has an executive agency, and try to pull somebody's license or to interfere with local stations as they were here? Local affiliates, just because of Carr's comments. Nextar and Sinclair, which of course are huge, huge conglomerates that own so many local news stations now, they both announced they wouldn't be airing Kimmel. So that's basically canceling it. Like that's what you're going to do. And then ABC pulled the show. Now he's back as of now, as I understand it, but this was pretty scary. And again, I don't really care about Jimmy Kimmel personally, but I care about anybody getting pulled off the air by the FCC for something they say, especially something like this. It's just tepid. So I wanted to take on this question because it is an interesting one, that it's not Congress passing a law, it's an executive agency interfering. Now, obviously, we all understand the spirit of the First Amendment. This is wrong, that you should not have the government getting involved with the press like this. Now, shout out the Campaign for Accountability. They filed a bar complaint against Brandon Carr pretty quickly, which

0:34:05 Matt: I think is great. This is the kind of stuff we were talking about with the director of the 65 Project back a few months ago, which I think is such an effective way to fight authoritarianism in the government of filing bar complaints when people deserve them, ethics complaints against lawyers, because as I have said, almost every episode, I feel like at this point, fascism requires lawyers, authoritarianism requires lawyers. These kinds of bloodless transitions of power require attorneys to make them happen. So these kinds of market points, I think can be very effective. Brendan Carr is a lawyer and he knows better. And that's what they're saying in this is that you're threatening government action. So Carr's defense was that there are FCC rules against what they call news distortion, but that's ridiculous. This is a talk show hosted by a comedian. It's not news distortion. Like they've never ever disciplined Cleveland, a talk show host for this. The FCC, by the way, has only found news distortion in nine cases since 1969. The last time was in 1993. And typically, even if a news broadcaster knowingly disseminates false information, potentially including, you know, Tylenol causes autism, that might be an interesting crossover here, these stations kept their licenses and they didn't have any consequences. They just get like a slap on the wrist, they get a letter, basically, they put a letter in their file, right? I mean, it's just, there's not polling licenses, but it it has to be a pretty extreme thing. So we can look at the first news distortion allegation in 1969. The doctrine as it exists now was started then. And it was actually over a program run by CBS called Hunger in America.

0:34:17 Jenessa: Get over yourself Fox News

0:35:29 Matt: And they was alleging that it was showing footage of a dying infant that they claimed was dying of malnutrition. There was an allegation that this was completely false and that CBS had distorted the news by directing interview statements when they're talking to doctors. And the FCC, basically, they took a look at The Evidence. They declined to go go any further, and they decided it wasn't enough. Again, you want to be super careful and hands -off with the news. Generally speaking, you wanna give the news a broad latitude. It is one of the purposes of the First Amendment is to make sure that we have a robust press. Now, again, we live in a world where OANN exists, right? And Fox exists, and Fox was openly pushing election conspiracies to the point that they got themselves sued by Dominion and other people, right, and successfully. And that, of course, is the argument, is that the marketplace of ideas includes the the ability to sue somebody when they just completely distort the facts. But I wanted to point out a case just last year, which is the last time that a government official tried to punish First Amendment protected speech. And this was actually a case in New York with the director, the Department of Financial Services issued guidance to New York State banks and insurance providers. And they just kind of suggested that banks and assurance providers should cut ties with the NRA because of public health and safety, which, you know, I can see that.

0:35:59 Jenessa: Exists, if come on yeah sounds kind of reasonable to be fair public health

0:36:42 Matt: Right. And they were looking into an insurance provider that was insuring gun owners, even if they committed crimes and, you know, it was recommended by the NRA. It was like something they were promoting. So like, yeah, I mean, an unlicensed insurance provider to begin with. It was found, though, that this is a unanimous court.

0:36:50 Jenessa: Seems not great supreme

0:36:58 Matt: This is a unanimous Supreme Court last year in NRA v. Vullo. Even though some of the insurance affiliates were doing illegal things, Vullo still could not punish the insurance company's conduct because the conduct is speech.

0:36:57 Jenessa: Court right I look forward to this court being totally consistent and also upholding that you totally can't infringe on the speech of private organizations that are

0:37:23 Matt: Right. Well, yeah. Well we'll see how that goes because I'm sure they'll be getting some of those cases soon enough with all the retaliatory stuff we've been seeing. Just a quick read here from Sotomayor's majority opinion. The court reaffirms what it said back in Bantam Books, that government officials cannot attempt to coerce private parties in order to punish or suppress views the government disfavors. What Brendan Carr did was chilling, like the way he said it and the way that he was immediately jumping in to get involved with the conduct and speech of a talk show host, of somebody who's just commenting on the news much as we do on this program. We cannot see that. And I was actually, I will say, this is rare that I say this these days, but I was moderately encouraged that there were a number of Republicans that did say something about this is kind of pushing our limits, even now, even these Republicans. And some of them even claiming that Charlie Kirk wouldn't have wanted this. And that's probably true from what I understand about the things he said about the First Amendment, at least. But I'm not going to comment anymore about what Charlie Kirk may or may not have believed. I just think that this is promising that the FCC went this far and is getting that kind of pushback and that Kimmel is now back on the air. We did have a couple of of questions from patrons this week about the H -1B visa. I'm calling it a fiasco. In fact, one of our patrons did also call it a Fiasco because it is one of these things. It's like the tariffs where it's just so obviously self -harming. Like it's like, is the federal government okay? Like, are they really trying to hurt themselves and us that much that Donald Donald Trump would announce that there's now going to be a $100 ,000 fee. It's incredible. $100 .000 for an H -1B.

0:38:50 Jenessa: Liberal like come on

0:38:57 Matt: Now, I'm not good at percentages, but the current at most, if you're a larger company, the most you're going to pay for extra fees in H-2Bs are $5,000. So that is an incredible marking up there. There was a lot of panic about this, and I was very concerned because obviously H-1Bs are very important. And I think most people associate them correctly with the tech sector and with Silicon Valley because that is where a lot of them go. I think Amazon is the single biggest H -1B employer. So I understand that perspective. But at the same time, H -2Bs are used on Wall Street. Not that that matters, but more importantly, they're used in rural hospitals. There's quite a number of residents and other doctors who are here on these kinds of visas. They're sending them to places where it's hard to get doctors, where the doctors are needed.

0:39:07 Jenessa: It's a little big oh wow

0:39:39 Matt: We've got enough threats to hospitals already with everything that's going on in this country. And doing one more thing to keep people out of red states, from people who would otherwise want to practice medicine in places where Trump voters live. Nobody thinks about that. And honestly, so much of it is just open racism against Chinese and Indian citizens who are making up a lot of these visas.

0:40:02 Jenessa: They're also a huge portion of overseas grad students in PhD programs all over universities um there are many people who are on H-1B visas working for pennies to produce all kinds of extremely valuable research I had a lot of friends in grad school who were, you know, all of us were there surviving on poverty wages and keeping the entire university alive. There was the year I left, the grad student union went on strike and the college was pretty much shut down.

0:40:42 Jenessa: We taught the vast majority of the classes. We do the vast minority of the research. When grad students are gone, it's all over. These students are not taking spots from Americans who were like really wanted to go to a PhD program and couldn't get in. They're hurting for this cheap labor they would love to have more people in it willing to do that extremely difficult work

0:41:09 Matt: Also, think about, even if you're not getting an H-1B, because I should say there's 65,000 H-1Bs given out. There's a lottery system because there are more people that want them. Higher education and nonprofits are cap-exempt, so there are are opportunities there for students to get them. But at the same time, no matter where you're coming from, one of the major incentives for people to come and study at American universities is they might have the opportunity at an H-1B visa. And that is a temporary visa. It's for up to six years. It is not necessarily a pathway to citizenship. It can only be that if your employer decides they like you enough that they're going to file a permanent immigrant visa for you. I have issues with the H-2B program, as was Bernie Sanders and other people. I think it works. I think it's good. I thinking we need it. I thinks it needs to be reformed. And I think there are are real issues with it. I'm not going to say it isn't a problem, but the solution to that is not to impose a $100 ,000 fine, which is what it is. It's not even a fee. You're talking about a fine. And the law, by the way, requires that employers pay that. You can't even offer to pay it. Even if you desperately want a job in the United States and you're willing to pay $100K to get one of these jobs, which honestly, if you're coming from the place where your opportunities might be limited otherwise, it might be worth that investment if you are going to get set up in a career in medicine in the U .S., maybe. But your employer has to pay that, so what employers, is, I mean, they have to really want you, that you are a superstar.

0:42:20 Jenessa: I totally thought it was you pay it which I just thought was like oh okay well then nobody's kind of like what are you gonna take out a mortgage to come here but But the employer, I mean, that just means grad schools just won't do it. They're not going to pay $100 ,000 to bring you here to pay you $18,000, $10,000 a year or whatever to do 60 hours a week of work. No, they're not doing that.

0:42:47 Matt: By law, the immigrant is not allowed to pay that fee. And that's how it works with all these fees, because they don't want to encourage the kind of corruption where...

0:42:52 Jenessa: Well, that's fair. Yeah. Okay.

0:42:54 Matt: And also just to be clear, the H -1 is one of those where you have to show that there is not an American worker that's going to be affected by this, that these are the kinds of things you're talking about. These jobs exist and that they need to be held by somebody and that you put it out there to the world and you don't find a qualified American worker and you need this. I am obviously an immigration specialist, but you have to pick your lane as an immigration specialist. I don't really think there are very many people who do everything. And pretty much you do deportation, asylum, family visas, or you do employment visas. They're very specialized, very technical. And my office does plenty of them. I just don't do them myself. Okay. So that's what's going on. And I will say, just like with the travel ban, there was enormous amounts of chaos that immediately came out.

0:43:30 Matt: There were people outside the country who thought they wouldn't be able to return because it was so badly worded that it made it sound like people outside of the country wouldn't build a reenter until they paid the fee. That's not what they said. And that they had to clarify that.

0:43:41 Jenessa: You're meaning like it sounded like it applied to people who already had the visa?

0:43:45 Matt: Yeah, it was that poorly written. But this is exactly what happened to the travel ban, where it was so poorly drafted and announced that nobody knew what it meant. And CBP had to issue on September 20th an update to the original memo to put in bold that this proclamation only applies prospectively to petitions that have not yet been filed. It doesn't affect anybody who's already filed one, and that it's really going to just be for the next lottery season, the next time it comes around, which is the deadlines in April. If you wanted to do harm to the American economy, if that was your goal, you're doing a pretty good job. That's a great way to do it, to drive away people coming here in these high-skilled occupations that require bachelor's degrees and experience in training, where you have to show to get the visa that you're not going to take an American worker's job. Why would they come here? And why would employers ever do any of these programs again, right? I mean, I do understand that the protectionism they're going for here, but it can't be based on data, as I understand it. And also, for what it's worth, I have to think it's going to take a while to work its way through the courts because this is so exceptionally massive, like such a huge fine. And it's so beyond what I understand to be a regulatory acceptable for what the government can do. I mean, it's just a sick joke to impose a fine that high.

0:44:53 Jenessa: Yeah, I'd imagine that, again, it hits that abuse of discretion standard, right? Like, this is so far outside what you were allowed to do.

0:45:01 Matt: And you're still going to have to get a company that says that they are going to be affected by having to pay this, which means you have to wait. And because we're waiting until the next lottery season, it could be a little while before there's actually a finding on that, right?

0:45:10 Jenessa: You know, how many companies want to be the one that sued over this? It's a huge barrier that might just persist.

0:45:19 Matt: I'm glad you mentioned that because the very worst thing besides the money itself is that there is an exception at the end that says basically the DHS can waive this for anyone it likes, anyone it wants to, or give the Trump campaign some money, or say nice things about Donald Trump, or make a deal. So this is something, again, think about Amazon, top employer for H-1B holders. He hates Amazon. This is an easy thing you can hold over Amazon. Hey, you want to waive the $100,000 fee? I got you. Just here's what you're going to do for us. This is all negotiation, the same way the tariffs are, where you can make all these side deals with all these different companies and countries. It's just so obvious corruption. I should have mentioned that up front, that it's just built in. It's just in the text of the order that it's corrupt.

0:45:29 Jenessa: Oh, so just complain and we'll waive your lawsuit. Oh God.

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0:46:05 Matt: I want to talk about today's footnote, which is you, and something I wasn't aware until today, that you were taking the patent bar. And I've always wondered about the patent bar. So tell me, first of all, why are you doing this to yourself?

0:46:16 Jenessa: Boy. Well, so there's a lot to it. Okay, so the good news, I'll say I'm not selling my soul to Amazon anytime soon. My plan is not to suddenly switch careers. Really what it came down to, I kind of always had this in the back of my head, even from when I went to law school, because the patent registration exam is like the official name for it. You can't even take it unless you have a STEM degree.

0:46:46 Jenessa: So my PhD is neuroscience. That's one of the ones that's listed as an acceptable field. Basically what that means is most lawyers, most law students can't even take it. Most people had, you know, history or English or political science. It makes for a really good job market because it's just narrowing the pool significantly.

0:47:10 Matt: Not that many people.

0:47:11 Jenessa: I would have to refresh my memory. I think it's possible you can take it without being a lawyer if you have those degrees. Now, I don't think you could possibly pass this thing. It's extremely difficult and it is legalese and it's knowing how to do legal analysis. So I think it would be very difficult for someone who is not a lawyer.

0:47:32 Matt: I'm sorry. I'm so tired that I thought you just said, I couldn't possibly pass this thing, and I took it very personally.

0:47:36 Jenessa: Oh no! No, no, no. The royal you. The everyone.

0:47:40 Matt: You're probably right either way. What's in this thing like how hard is it all

0:47:46 Jenessa: You as in the scientist who is a lawyer, I believe it would be extremely challenging to both take the exam and to work in this area of law, because you have to do a ton of legal analysis. I don't quite know how you would get through it.

0:48:00 Matt: Well I'm an English major so I think it'd be hard for me too but sure

0:48:05 Jenessa: The law itself, I would say, I don t think the laws around patent law are terribly complicated or terribly scientific, to be clear. The act of writing a patent application, it helps that you have some sort of scientific background, not even necessarily in the field that the invention comes in with, just to know generally how these things are kind of written. In. Any lawyer could do, once a patent is issued, either defend that patent, you know, file a lawsuit because somebody's infringing, or if your client gets sued because of infringement, defend that lawsuit. But to do what's called patent prosecution, which is not what it sounds like, it's practicing missing, apparently.

0:48:27 Matt: It makes sense when patents kill people you gotta in the system of patent justice there are there are lawyers and they're yeah

0:49:05 Jenessa: It's so strange sounding. It means going in front of the Patent and Trademark Office and arguing you should issue this patent because, I think even to draft the documents, obviously a person can represent themselves and draft their own, you have to take and pass this exam. That is a limited pool of people. If you can pass it and get through, you are qualifying yourself for a range of employment that would pay extremely well that not a lot of other people are qualified to do. I really enjoyed it. I took patents in law school. I aced it. It's really interesting, like all the analysis of like what is novel and what is obvious and how to, you know, make it specific enough that it keeps other people out, but not so broad that it is too vague and gets rejected. It's just really cool. And it's based in the constitution.

0:50:04 Jenessa: Like it's a really old thing. This is not some recent invention. I like the concept. There are parts of it that are really fun and interesting. One thing that I think is really awesome about the idea with patents is, you know, instead of like a trade secret where you're just going to like, okay, we're going to do everything we can to keep this secret. And then for like forever, we're we're going to be the only people doing this. But as soon as somebody reverse engineers it, oh well, right? With a patent, in exchange for getting this temporary monopoly, you have to tell the world how you invented this and how it works. And the standard is a person having ordinary skill in the art has to be able to recreate what you did.

0:50:53 Jenessa: So it's supposed to a foster invention that you say, for a little while, I'm going to have a monopoly on this. That doesn't mean you can't do it. You just have to pay me. But you're going to also see exactly what I did and be able to innovate and build on it. Even while I have the patent, you can build something that uses it and you would just have pay to be part of it and get your own patent on on the combination of the things. So in theory, it benefits innovation. And just from a legal aspect, I find it really cool. It is the backup plan to end all backup plans because, good God, do I not want to work 70 hours a week for corporate hell just filing documents that patent nonsense? I don't really want to do it.

0:51:45 Matt: So what do you want to do with

0:51:47 Jenessa: If I don'T take this test now, I'm never going to do it. I'm still fresh -ish out of the bar. I am still in test learning mode. I was given a window to take it when I set up my registration that goes through to October 22nd inclusive. So of course that will be the day I'm taking it because what is ADHD if not having zero planning and complete procrastination? But yeah, I'm gonna see how it goes. It's the lowest stakes test I've ever had in my life because there's pretty much no consequences if I fail this thing.

0:52:21 Matt: This sure it's just for fun you're just having a good time taking a a test. I get it. I love taking tests. I'm one of those nerds.

0:52:25 Jenessa: It's one more qualification and it's cool stuff and I can have it under my belt if, I don't know, something interesting happens. And I don' t know, maybe fight drug patents. I hate that shit. So it's not too bad. The test center charges you like 200 bucks. And then for some reason, and also the patent office charges you 200 bucks for the privilege of taking the exam. Now, how is that not the same thing? I don't know, but they make it very clear.

0:52:44 Matt: That's cool. How much does it cost to take the patent exam?

0:53:05 Jenessa: These are two separate fees and it's like, all right, whatever.

0:53:05 Matt: This sounds like an innovation that somebody got a patent for this ability. Sure.

0:53:11 Jenessa: Honestly, probably. And then there's either the like super expensive prep courses are like literally three grand, or you can do what I did and pay like 150 50 for the cheap prep course. And then there's probably going to be some fee to, maybe I already paid it, to like, if you pass, you can get your like, I don't know, membership, whatever the heck it is, license, whatever that's going to pay. So it's really not that bad, especially when you think about the bar exam with like all the fees and blah associated with that. So yeah, it's not too bad.

0:53:44 Matt: And potentially for the investment, I mean you could recoup that pretty well. That's a good ROI and I mean it's good paying jobs.

0:53:51 Jenessa: I'm still loving my nonprofit work and my voting and disability rights stuff, but it's there if the world falls apart and nobody ever wants to pay anyone to do voting rights ever again.

0:54:03 Matt: Sure and not to overstate the obvious but there aren't that many lawyers with PhDs in STEM.

0:54:07 Jenessa: It's true. Yeah.

0:54:08 Matt: Good for you. That's awesome. I knew nothing about that so I wish you luck. I am sure you will be reporting reporting back. Interesting to hear how it all goes. So that's our footnote for today. Thanks to patrons for contributing. Please go to patreon .com slash law if you'd like to sign up and join the community. Really appreciate our patrons every time, every week, every day. I really, really can't do this without you. Everybody else listening, of course, we love you too. We'll be back next week to talk about some more golden age Warren Court type stuff. Back with more on the news next Friday. Let's see what the news brings us.

0:54:14 Jenessa: See

0:55:13 Matt: How much, I see in a minute from this thing you have to take to, okay, I See Your Hands in the Air. Yeah, I mean, having eaten a lot of Campbell's tomato soup. It is an indicator that you might be broke, but that's correlation, not causation. I'm sorry. I've, I'm so tired that I thought you just said I couldn't possibly pass this thing. And I took it very personally.

0:55:33 Jenessa: No, no. The royal you. The everyone.

0:55:36 Matt: You're probably right either way, but.