Billable Hours by the Millions

Money makes Big Law go round.

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Sarah and David catch-up with non-SCOTUS cases starting with…

-A multi-million dollar lawsuit involving Musk’s Twitter deal

-A bold move by a judge blocking state actors and social media workers meeting over protected speech

-Tennessee’s latest push in the culture war with a ban on gender-affirming care

-A bullied child, a MAGA hat, and the First Amendment

Show Notes:

-David French for The Dispatch on convincing versus coercion

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Comments (129)
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  1. Avatar photo
    PaulH

    With regards to the Wachtel fees, Sarah and David mentioned a California law that governs legal fees; but I am wondering how that could be relevant. The Wachtel engagement letter almost certainly states that it and all matters relating to it are governed by New York law (where Wachtel is HQ'd and where Twitter must conduct business) and the merger agreement itself would be governed by Delaware law and the case itself was litigated in Delaware. I can't see on what basis any judge would consider applying CA law to the dispute.

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      Charlie

      We have a lot of out of control judges in this country. The law isn't what is written it is what the judges want it to be. :(

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    Jmccuva

    I got a late start in listening to this episode, and I was struck by the discussion around the big tech/free speech injunction discussion; perhaps less from a legal analysis point of view than from a tonal one, particularly with respect to the concerns around coercion, in comparison to the Kennedy v. Bremerton case, and particularly from Sarah.

    When the Kennedy case was being argued, it seemed to me that Sarah put a lot of emphasis on implied coercion in the analysis of whether a teacher or coach's actions or speech made students feel that they might suffer punishment or retaliation of some sort (e.g. less playing time, more stringent grading, etc.) if they didn't participate in some religious expression. In this case, the authority of the coach and his implicit power to make life more difficult seemed to concern Sarah, independent of any actually demonstrated threats or actual retaliation. Indeed, I think the result of that case suggested that the specific facts may have won the day for Kennedy, but the decision was highly tailored to those facts, and one need not consult Sarah's tattoo to reach a different outcome with very slight factual differences.

    When a federal agency had oversight over a social media company, though, S&D seemed much more comfortable with a bright line standard of "actual threats" as opposed to strong suggestion. However, no matter how powerful, well-lawyered or wealthy these companies may be, the ability of the government to make their lives more difficult and costly stands as an implicit threat even when no specific threat is issued. The fact that the CDC has no enforcement power mitigates, but does not remove, this concern; if someone high up in the Trump or Biden administration disliked the way Twitter responded to CDC guidance, it's not hard to imagine a higher level of scrutiny suddenly being applied from, say, the IRS or the FBI, a la Lois Lerner or J. Edgar Hoover.

    So while the analysis of the judge's injunction may be correct in declaring that it was over-broad, it struck me that both David and Sarah were far more sanguine about the implicit chilling effect of the executive branch's ability to cause problems for non-compliant companies, particularly in light of their concern around implied coercion by a state actor within the school system.

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      Charlie

      CDC doesn't have power to enforce much of anything, and it is interesting that so called pro life conservatives want to prevent the government from doing anything to prevent mass death from pandemics.

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      1. Avatar photo
        Jmccuva

        Charlie,

        I'm not sure what you're inferring from my piece, but while I already pointed out that the CDC's lack of enforcement power is not relevant in the age of the unitary executive, I have no idea what you mean by "prevent the government from doing anything." If the only thing the government could possibly do is lean on social media companies to censor their users, then I suppose that qualifies. If, on the other hand, the government could, hypothetically, incentivize and subsidize the rapid development, approval and deployment of a vaccine and make that vaccine available (voluntarily) to the citizenry, that might also, if you squint, fall under the heading of "doing anything." Perhaps there are those who object to the government doing anything at all to prevent mass death, but since that's neither explicit nor implicit from my comment, it seems like a complete non-sequitur to me.

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    2. MathewA

      good comparison

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  3. Billboyd99

    Re breast implants and minors...I told my wife, a Dallas Radiation Oncologist, David's post about "10x more breast enhancements vs gender affirming..." Her reply: "Oh, I bet it is 50x. Or more. It is so, so common."

    So there you go! Yikes.

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  4. C.Webb

    I hope we are getting a repeat of nerdy August. Did we ever get the Yellowstone Caldera podcast? I live in the blast zone and would like to know my odds.

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      Dave T

      Yes! Me too!

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  5. Brandon Hartley

    My apologies for this post that doesn't really address this podcast, but I just listened to the Honestly podcast featuring our very own Ms. Isgur. I've clearly been spoiled by AO in to thinking that most accomplished lawyers are highly rational creatures that uphold the law first and foremost, and consider outcomes as a secondary result only. Then Harry Litman convinced me otherwise. From trying to argue that Grutter is "obviously dead" despite 5 justices arguing the exact opposite, to refusing to note the differences between speech and basic business service, to the absurd logical contortions to try and paint the Harvard case as not really concerning anti-asian discrimination, to arguing that the circuit court issues are somehow binding on the supreme court . . . It was an embarrassing "I care little for the law but only whether or not it supports my preconceptions" nonsense (or, at least, it sounded that way to my untrained ears). This is all just to say that The Dispatch is lucky to have you!

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  6. Richard Kennedy

    Re: bullying. I received a yearlong onslaught from my second grade teacher. It started with a general request from her at the end of the day for anything new to contribute. I advertised my mother’s Good News Club that afternoon at my house (Flannelgraph Bible stories and homemade cookies!). This was during the 1960 Presidential election and before the Prayer in Schools decision. I was stood in the corner for the remaining minutes. Every Wednesday she repeated the request and I pushed the Good News Club to the same result.
    She would call me out suggesting I should emulate my namesake (Sen. Kennedy), my response,” who?, my name is Richard”. The corner. And on, all year. I got “people” wrong on a spelling test. She pointed that out to the class that I thought the word was “pee-ah-ple “. I asked that if that were not the case, why I got the word wrong. My home, the corner.
    It actually fortified me for moving to Jim Crow North Carolina the following year. I became more careful about speaking out with a Yankee accent target on my back, but speak up, I still did. I pointed out the bad taste at least, of the “N” word, common among my peers at school, but not the teachers in class. And my pastor at a church picnic. But I certainly never thanked the aptly named Mrs. Brawley for the experience.

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  7. Khodge

    I think the thing that gives me the most angst about the government making requests to companies like Twitter is that it is done not in the light of day. If some crackpot legislator makes a comment in a public forum where all have the opportunity to hear what is said I think it is less problematic than if it is done in a private conversation where it seems more "nice little company you have there, I would hate to have something bad happen to it".

    Why should these requests fall to the government to make anyways? I think that should be left to private individuals, organizations, PAC's etc. . . It is not the role of government to police private corporations' individual policies unless they run afoul of the law. That is not an appropriate use of taxpayer money and all government employees are paid by taxpayer dollars.

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  8. Stephaniemorain

    Having "experimental treatment" as the standard seems problematic, particularly in the context of pediatrics, for which a substantial proportion of medication use is "off-label," given the insufficient research and evidence base to guide dosing, efficacy, and safety of medications in the pediatric context (over 1/3, based on one systematic review: https://www.ncbi.nlm.nih.gov/pmc/articles/PMC6677268/ )

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      Charlie

      To make matters worse, it is really difficult to get approval to do research in children, and even more difficult to do research in pregnant women. We are so terrified that one child or one fetus might be harmed by an investigatory drug that we are willing to sacrifice thousands to death from, for example, COVID.

      This is on top of the COVID deniers and junk science proponents who are also pushing mass death.

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    2. MathewA

      Good point.
      I would argue though that states still have broad police powers to regulate within their state (even if it's FDA approved), and this goes double for minors.

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  9. Bradgreenwald

    I found the discussion of the social media case to be quite odd in light of D&S's general free speech absolutism. Although I understand that precedents might not support the ruling in this case, I would have been interested in hearing a "steel man" presentation of the opinion, because there seemed to be some things to like in there for the free speech crowd. I found it particularly disconcerting that David referenced once of his favorite anecdotes about the college speech rules with a savings clause as an argument AGAINST the ruling -- it seems to me that the case is actually analogous - I think the Justice Department probably CAN sort out those fine details of jurisprudence that perhaps a college student cannot, and, although of course the companies are also sophisticated legal actors, they have ZERO financial incentive to not just agree.

    And the fact that the executive branch can use its ability to "convince" to manipulate political speech seems not at all desirable constitutionally or institutionally.

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