Between Persuasion and Coercion

The FBI spends their time on dumb stuff.

By and
142

Sarah and David look at the latest Twitter Files revelations, and consider whether they point to First Amendment concerns. They also look at the first case about transgender athletes making its way to the Supreme Court. Sarah then breaks down the grammatical debate happening in the comments section with a closing statement on why she was right, although rather unintentionally.

Show Notes:

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  1. Avatar photo
    Lawyer.Tksmall

    Those people named Mr. Small are very difficult!

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    Rjosephpaquette

    I have been thinking a lot about the transgender sports issue and title 9. It seems to me the hallmark of the policy was separate but equal. Shouldn’t that be simply extended to these “new” sexes that modern science has created. People with XY chromosomes but through medical procedures appear and live as females should have their own sports programs. These women are fundamentally different from people born XX chromosomes. Doesn’t title 9 simply require they also have their own sports teams and competitions?

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    1. Rbrafford17

      That strikes me as one of those conclusions that can be reached as an abstract logical endpoint, but which the courts are unlikely to arrive at as a matter of practical reality, similar to the idea of gender-neutral "all-comers" sports teams that was discussed. After all, how many areas have sufficient number of (as an example) trans soccer players to comprise a single team, let alone a competitive league?

      I don't have a better solution to reconcile the Title IX issue, admittedly. The traditional reading of the law seems hard to square with Bostock in this area and I don't see any realistic outcome that doesn't leave a lot of people pretty ticked off.

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        Rjosephpaquette

        Why isn’t there a female football team? Not enough females want to play. Doesn’t mean we throw out the separate but equal.

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    Marc Frischhertz

    I hope the SCOTUS takes the transgender athlete case, but this does not appear to be the case. While this is getting into the weeds, as I understand it, transgender athletes (male to female) are required to have testosterone levels below a set level. However, most rules only require these levels to be maintained for one year before competing. The science seems to show this isn’t long enough to negate the advantages of the higher testosterone for the years before.

    There needs to be a case where evidence is presented and if so, the science will show that the transgender athletes have an advantage that violates Title 9

    The advantage is best illustrated by looking at testosterone levels in the other direction. Imagine a male athlete takes testosterone shots to elevate his levels 10 fold for a decade. He then stops taking the testosterone for 1 year and his levels are now that of a normal male athlete. Does anyone believe that the 10 years of elevated testosterone is somehow negated by taking a year off?

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  4. CT

    For cowboy music it’s hard to beat Robbins, Marty – Gunfighter Ballads & Trail Songs.

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    Ben Connelly

    It isn’t just the amount of testosterone at the time of competition. One of the biggest factors is just the exposure males have during puberty. Someone born male who underwent puberty still has a competitive advantage even years later, even if taking testosterone blockers.

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  6. Avatar photo
    Ben Connelly

    Christmas for Cowboys by John Denver - cowboy song and a timely/festive one

    Should’ve commented that last time but I forgot.

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  7. Avatar photo
    Kevin M. James

    I'm just here to again recommend the landmark 1981 album _Urban Chipmunk_ for those who, like me, have a deep appreciation for both '70s/early '80s pop-country music and novelty records.

    More than four decades on, I still get a good chuckle out of their tongue-twisted rendition of "(Hey Won't You Play) Another Somebody Done Somebody Wrong Song".

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  8. Pamela K.

    Sarah and David, Many thanks for all of your hard work on this fantastic podcast. David said something last week that has stuck with me: "we need more lawyers explaining the law in the world" (rough quote). I agree 100%. How can we make this happen? Perhaps in your free time (ha!) you can launch an Explain the Law nonprofit campaign (aimed at schools, social media, civic groups?). You could recruit volunteers from among AO commenters, many of whom have deep knowledge of the law. I'm ready to sign up to do my part. Best wishes to you and other AO readers this holiday season.

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  9. Shenghiskhan

    Is it just me or did David and Sarah inconsistently apply their conclusion that coercion (as opposed to persuasion) is a precondition for state action as between the First and Fourth Amendments.

    They said coercion was necessary in the First Amendment context. But they also said a Fourth Amendment violation would occur if police enlisted your neighbor to break into your home to search for evidence. No coercion was needed because, in their example, a violation results even if the police merely persuaded the neighbor that a break-in would prevent crime.

    Turning to the First Amendment. What if the FBI convinced Twitter that democracy would be destroyed if Twitter did not censor you. Or if HHS convinced Facebook that thousands will die of COVID-19 if your anti-lock down posts were not taken down. That seems analogous to the Fourth Amendment example of police persuading your neighbor to break into your home to prevent crime. But Sarah and David changed their analysis to draw a bright “coercion vs. persuasion” line when it comes to the First Amendment. Maybe I am missing something, but I don’t understand why the state-action test would be different depending on the constitutional right at issue.

    To be clear, I am not saying the FBI interaction with Twitter amounts to state action. Rather, I just think the state-action test might be much fuzzier than a simple “coercion vs. persuasion” dichotomy.

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      Sara.Bush

      I noticed that nuanced application of their argument also, and I have no legal background. I do, however, know how to follow logic in the “if this, then that, or if not this, then not that”. Can’t have it both ways. This is sort of how I decided ahead of the SCOTUS decision on Title 42. Justice Gorsuch’s dissent follows the logic and letter of the law, not the solution of a particular social dilemma.

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  10. Paulkempf

    I'm reminded of the furor a few years ago over anorexic photographers' models. Activists objected that models were being incentivized to engage in self-destructive behavior, social pressure was brought, and advertisers responded. All without appeal to the courts. Baseball banned PEDs . Porn stars face challenges finding career opportunities post-porn. The point is, in all these cases the law has managed to avoid stepping in to valorize self-destructive/antisocial behavior. People with a pathological belief that their sex has been incorrectly "assigned" need help, not indulgence. Yet the full weight of our institutions is being brought to compel indulgence. Smh.

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