Clients Don’t Always Listen

Plus: dealing with defamation.

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48

It’s a marathon episode as Sarah and David try to figure out:

-Will WilmerHale charge the university presidents for their testimony prep?

-Is the ACLU making a comeback in NRA v. Vullo?

-What’s up with Trump’s gag order?

-How to correct a chief justice

Show Notes:

–Students Call for Genocide, Presidents Smirk

-NYT: One Law Firm Prepared Both Penn and Harvard for Hearing on Antisemitism

-SEC v Jarkesy

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Comments (48)
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  1. Avatar photo
    Clay

    "Who will rid me of this meddlesome priest?!?!" I have always loved the Simon Schama correction to this popular quotation.

    He said that Henry actually said, "What miserable drones and traitors have I nurtured and promoted in my household who let their lord be treated with such shameful contempt by a low-born cleric! "

    That is epic. The passive aggressive just radiates in intensity.

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  2. BenP

    I still don't understand how the Deadspin writer's line about "hating Black people and the Native American at the same time" can be construed as a false statement of fact. The writer knows nothing about this kid, as is clear from reading the article. All that he knows comes from what he saw on TV. Which means he's guessing, or inferring, or opining.

    It's a stupid guess/inference/opinion, one for which Deadspin and the writer deserve all the criticism they're getting. But how can it be read as a claim of fact? It's another way of saying "people who paint their face black and wear Native American garb at a football game are being racist." As opposed to "I know this kid personally and lemme tell you what a racist he is".

    For comparison, Nick Sandmann lost his defamation lawsuits against various media outlets after they misrepresented his actions. Seems like his case should have been much stronger than this one.

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  3. Avatar photo
    Bill Dyer (aka Beldar)

    Ms. Isgur & Mr. French, I routinely listen to podcasts at 1.25x normal speed, including yours.

    The software should NOT be changing the pitch of anything, unlike speeding up an analog tape recording or record: You shouldn't be sounding like chipmunks.

    Instead, at 1.25x normal, you just sound 25% more sure of yourselves, and very silver-tongued and quick-witted. That's the sweet spot for my taste, and keeps my attention (which is generally split between other tasks, including driving or computer games, while I'm listening).

    I wish that the sound player widget Dispatch Media uses on its webpages had a speed adjustment setting, in fact. And I wish it had a 10-second forward and back button: The ability to re-select or move to a particular location in the podcast on the Dispatch Media widget could NOT BE WORSE and still be functional at all. This is like very bad freeware; I'm sure you could get a replacement for a trivial cost.

    Using a fourth-rate widget sends the wrong message to your members who're trying to access Dispatch Media podcasts ON THE DISPATCH MEDIA WEBSITE, which is where you should be wanting your members to regularly return. Instead you're sending your listeners to Spotify or Apple or whoever else is monetizing your content, mostly for themselves.

    (And to save you the trouble: I'll forward an email version of this comment to members@thedispatch.com, since I know there are others besides our AO hosts who're actually more likely to be tweaking what's under the hood, or at least directing the webmonkeys in their tweaking. Also still waiting for a fix on the "ShowMoreShowLess" garbage text insertions when long comments are edited.)

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    1. Israel.D.Gale

      I've been complaining to The Dispatch for months about the hokey 3rd-rate media player on the website.

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  4. Avatar photo
    Treadmill

    I found the segment on Trump's gag order interesting but ultimately unsatisfactory because Trump's speech and the actions (or reasonably anticipatable actions) of his audience neither fell nicely into "heckler's veto" or "meddlesome priest" categories.

    It seems that there needs to be some third category of "constructive veto" where if you want the state to stop somebody's speech, simply commit crimes (or raise the plausible specter of crime) in the name of the speaker's message, even if the speaker did not explicitly or reasonably call for the crime.

    I think why this has not been addressed yet in law is that we are in a new age of anonymous activist threats - SWAT-ing, doxing, and its ilk are all common now, and not as risky for their perpetrators as other crimes often are. It took a manifesto for us to understand what the heck the Unabomber was all about, and that ultimately led to his capture. Explaining the reason for your crime is now faster and potentially more anonymous. Further, activists need not perform the crime themselves, only roll the ball slightly further down the path into a violent echo chamber. There's always a whacko willing to go the last mile.

    It is concerning to me that if I were an activist who wished to kick "Libs of TikTok" out of the public square, I would only need to issue a credible death threat against all targets of that account's criticism, thus proving that the speech is dangerous and the speaker should be gagged. Anybody who delivers criticism in the public sphere is at risk of this sort of asymmetric attack.

    Maybe there's existing caselaw on this sort of action and Trump's actions in the public speech sphere are different in kind (I'm not a lawyer, just a schmuck on the internet), but I haven't seen any commentators address it yet.

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  5. Avatar photo
    Xsearnold

    Not sure if anyone else mentioned this, or not, but the KC Chiefs colors are NOT red and black; They are (essentially) red and white. While it's true that the outline of the arrowhead is black, the Chiefs uniforms prominently feature red and white, with gold highlights. Now, if that 9-year old had painted his face half-red and half-white, the whole "black-face" nonsense would have been avoided! (And the apparent "hatred" of whiteness would have cancelled out the "hatred" of "redness." ; )

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    1. BenP

      Yes, this. If the photo was at a Raiders game, no one would have blinked. But the Chiefs are red, yellow, and white.

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  6. Avatar photo
    Bill Dyer (aka Beldar)

    Whether a bill gets sent, and whether it gets paid, are two different things, even at BigLaw firms.

    But I expect the witness preparation time will indeed be billed.

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  7. Bryan Dinner

    Reposting very relevant comment from Kevin from last podcast that David and Sarah must have missed: “The recent history at MIT with regards to free speech is very relevant to this conversation, and has been omitted in every news article and conversation that I have seen on this story thus far.

    (Full disclosure: I am a graduate of MIT, and a non-faculty instructor at MIT, and have paid close attention to MIT policies and adherence or lack of adherence to classical liberal values for some time.)

    In brief, following the dis-invitation of Prof. Dorian Abbot to speak at MIT in fall 2021, MIT launched an Ad Hoc Working Group on Free Expression. The working group issued a follow up report and recommendations in fall 2022, and drafted a Statement on Freedom of Expression and Academic Freedom (modelled on the Chicago Principles), that was adopted by the faculty with minor edits in December 2022. You can read it here:

    https://facultygovernance.mit.edu/sites/default/files/reports/2022-09_Proposed_MIT_Statement_on_Freedom_of_Expression_and_Academic_Freedom.pdf

    President Kornbluth publicly endorsed this statement as institute policy in a message to the entire MIT community last February, and has been providing updates on the effort to establish the principles expressed in the statement within MIT policies and procedures. While I have at times struggled with President Kornbluth's tone (up to and including the recent controversial testimony), the content of her underlying message has consistently been aligned with this new statement, and it would have been extremely disappointing to me as a member of the community if she had abandoned these newly articulated principles the very first time they were tested in a difficult situation.

    For those who care to read more, it is very nicely summarized by the MIT Free Speech Alliance here: https://www.mitfreespeech.org/mit_statement_on_freedom_of_ex.php”

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  8. David Keating

    David, I'm sorry to read the horrible news about Nancy's illness, and I will pray for her recovery.

    Regarding the Trump gag order, it seems to me the court should have exempted witnesses who are public figures (Gertz v. Robert Welch, Inc) from the restraint. That seems like an obvious line to draw.

    As you both pointed out, Bill Barr, Mike Pence, etc., are not going to be intimidated, and I doubt other public figures would either.

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  9. Sean Smith

    Referring to your brief discussion of whether or not Bruen was radical or "revolutionary," I got into a good conversation with another listener in a thread on an earlier episode about why SCOTUS came up with the "THT" analysis exclusively for Bruen. For quite some time I was baffled by the emergence of THT and couldn't fathom what purpose it served. What emerged from that conversation and from my further pondering of it afterward was that while THT seems such an odd, sudden, poorly explained departure from the tiers of scrutiny framework that preceded it, it becomes more oddly compelling the more I think about it where gun rights in particular are concerned.

    Backing up a bit, the tiers of scrutiny were/are problematic and far from perfect. And they certainly don't derive from anything that could reasonably be called "textual" where the Constitution is concerned. The whole idea of a judge determining what level of scrutiny a policy should get based on how "fundamental" the right at issue is has always bothered me. For one thing, if a right is explicit in the first 10 Amendments, its being tautologically fundamental is the only reasonable conclusion I can think of. That should be the end of it--government loses. But whatever its faults, the tiers of scrutiny framework is well-established and broadly accepted, and we've managed to make it work reasonably well these past many decades.

    However, with the 2A issue in Bruen, SCOTUS found itself in a bit of a dodgy situation. Either anything infringing on the 2A impedes the exercise of a fundamental right and gets strict scrutiny, hence practically no gun regulation--however moderate or reasonable--can be upheld, or SCOTUS has to try to explain how a right the framers deemed important enough to list second only to speech, the free press and religious freedom nonetheless somehow isn't fundamental. Good luck with that!

    Of course we have a long history of recognizing that government may, in many instances, impose regulations on firearms to keep them away from people who have no business having them, including policies that long predate the republic. So there was no way the 2A gets fundamental right/strict scrutiny status, and SCOTUS determined a third way was necessary. While I disagree with this conclusion, it certainly isn't insane.

    I DO disagree with it, however, because to me that isn't a particularly difficult circle to square without departing from tiers of scrutiny. In fact it's ridiculously simple: Preventing innocent people from getting shot is about as "compelling" a state interest as exists. It's literally the most basic reason for having any kind of government, period. All strict scrutiny would require is that a policy restricting gun ownership be narrowly tailored to that interest. So yes, a lot of silly gun laws that merely inconvenience the law-abiding and haven't demonstrated any causal nexus to improved violent crime trends would fail the test. But those most sensible people already agree on--background checks, no guns for violent felons, people with mental illness or severe drug/alcohol dependency or people under FAPA protective orders, and similar no-brainer stuff would remain unaffected under that standard. So in the end there was really no reason to depart from tiers of scrutiny.

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    1. MathewA

      Yep I think it's clear that 2nd amendment should get strict scrutiny just like the 1st amendment, and it's also clear that the vast majority of gun regulation is unconstitutional.

      I would agree in part with the reasoning in US v Miller 1938 that in fact the 2nd amendment in particular protects civilian use of small arms as of the type used in the military. Definitely including semi automatic weapons, and probably including actual machine guns (though I would be willing to support a constitutional amendment banning those if it stopped the rest of the gun regulation).

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      1. Sean Smith

        I think getting caught up in "machine guns" (which, it should be noted, are very heavy, belt-fed weapons usually mounted on a bipod or tripod, not handheld rifles/carbines that have a full-auto option) is a very dumb red herring for people to get bogged down in. Actual machine guns are virtually impossible to use for any sort of garden-variety criminal activity, and fully automatic handheld weapons are no more dangerous or deadly than others because they're exceedingly difficult to control or fire accurately. How "deadly" is a weapon if most of the bullets you spray with it fly over the heads of your intended target? I'd rather face an adversary with a bullet hose than one placing accurate, well-aimed shots with a semiauto. The former is going to do a lot of missing and empty his magazine so quickly he'll be spending most of his time reloading. The latter is scary as hell.

        So yes--ban "machine guns." Seriously, who cares?

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  10. Kyle C

    David, I just watched this great video about the gun culture in Switzerland. Very interesting.
    https://youtu.be/wnBDK-QNZkM?si=OX408Mbb4ANvPZNH

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