Cosby, Wooden, and the Supreme Court’s Busy Day

On today’s podcast, David and Sarah talk about five, yes, five Supreme Court opinions, including ...

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On today’s podcast, David and Sarah talk about five, yes, five Supreme Court opinions, including cases involving criminal law, state secrets, and social media moderation. They mainly focus on a fascinating case that asks, when are ten crimes one crime?

Show Notes:

–Wooden v. United States

–United States v. Tsarnaev

–Cameron v. EMW Women’s Surgical Center, P. S. C.

–United States v. Zubaydah

–Supreme Court Order List

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  1. Avatar photo
    Jason Gibson

    You didn't succeed in convincing me on the mcdonalds coffee case. But you did succeed in reminding me that there should always be a hesitation for anyone to pass judgement on a case unless they have looked at ALL the facts

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    Gabrielle G

    Did Sarah just admit to setting honey traps for her former boyfriends? 🤣🤣🤣

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      Sarah Isgur vertical-nib Author

      let's just say i didn't work very hard to "protect" them ;)

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  3. Tngraham

    A few comments on the episode:

    (1) On David's discussion of Section 230 and the sexual trafficking case: I wouldn't at all want to take away from the urgency of making sure Facebook feels responsible for preventing crimes from being committed on their platform, however in my opinion he is somewhat myopic and overly dismissive of concerns about free speech on what is actually a quasi-public forum. He is myopic in that he tends to focus his attention on public figures like Donald Trump and Alex Jones and too dismissive of the concerns of the hundreds of millions of people who are prevented from expressing commonplace ideas and opinions on their platform. His response would be "It's their platform." And it is. But the telephone systems belong to the phone companies and there are fairly robust protections for speech on that platform. I think Justice Thomas is correct that social media platforms are no longer directly analogous to the bulletin boards and media comment sections which were the predominant model when Section 230 was written, and is now more akin to a platform that many hundreds of millions of people use to communicate with their friends and family. The law badly needs to be updated to better balance Facebook's ownership rights with responsibilities to avoid unnecessarily censoring people on what has actually become a quasi-public platform. For this type of platform, which purports to be a place for people to express their ideas, the standards which ought to govern attempts to restrict speech are the same kind of time place and manner restrictions that are used to restrict speech in public fora. And the sanction of banning people from platforms entirely (rather than just labeling or censoring certain posts) ought to be reserved for extreme cases. To the extent that a social media account is like a telephone, it ought to be about as hard to deny someone a social media account as it is to deny them a phone account (yes, there are some differences, based on the fact that you have to pay for a phone account and do not for a social media account). OK, enough of that hobby horse.

    (2) On Sarah's reaction to Sotomayor's dissent in the Cameron case, while I can see the value in trying to bring finality to decisions, I also think it's necessary to find a way to rein in what has become an increasingly common tactic that elected officials (particular AGs and their subordinates) use to evade issues for which they are actually responsible: just refusing to enforce laws with which they disagree (abuse of discretion in my book) and finding ways to avoid litigating cases about validly passed laws that they personally oppose. In the case of the Cameron law I'm glad it came out the way it did in that it prevented state officials from engaging in these kind of shenanigans to prevent a law being defended in court.

    (3) I agree with the outcome in the ACCA case and don't think it ought to be requirement for SCOTUS to take a case that they be able to give a clear definition that will definitively resolve every case in the lower courts. While I thought Gorsuch was quite persuasive with his lenity argument, I think it would be fine for them to overturn the lower court's decision as being a bad interpretation of ACCA even if it´s impossible to make an airtight definition of what an "occasion" is.

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    Young Riprock

    I would like to push back on the fact that Stella Liebeck's claim has been unfairly besmirched in the court of public opinion. The fact that she was seriously injured does not establish duty, breach or causation. As noted in the below described link, "Hot beverages such as tea, hot chocolate, and coffee are frequently served at temperatures between 160 degrees F (71.1 degrees C) and 185 degrees F (85 degrees C). Brief exposures to liquids in this temperature range can cause significant scald burns. However, hot beverages must be served at a temperature that is high enough to provide a satisfactory sensation to the consumer. This paper presents an analysis to quantify hot beverage temperatures that balance limiting the potential scald burn hazard and maintaining an acceptable perception of adequate product warmth. " "The preferred drinking temperature of coffee is specified in the literature as 140+/-15 degrees F (60+/-8.3 degrees C) for a population of 300 subjects." Notably, with consumer preferences between 135 to 155 degrees, a second or third degree burns can occur in as little as 1 second of contact. There is no way that Ms. Liebeck as a 79 year old woman could have gotten the coffee liquid away from her lap in the period of time. Once you add in the fact that Ms. Liebeck intentionally took the lid off of the coffee, it should have been a defense verdict.

    I would point out that James Angelichio states below that he can't get a sufficiently hot cup of coffee at Starbucks. Starbucks coffee (along with everywhere else) serves coffee WAY TOO hot for my tolerance. I don't know how you all do it or why you would subject your mouth to that. But you do, I know that coffee is served way too hot everywhere, thus negating the need to warn that hot coffee is too hot.

    Since I'm in a pushing back mood, I also take issue with the claim that Section 230 is border than its intended purpose or reforming Section 230 is necessary to provide more protection for victims of abuse. This already happened, it is FOSTA-SESTA and it has remained a solution in search of a problem. Further, the aggressive prosecutions relating to sex traffic against providers has made things more difficult for law enforcement because it has gotten rid of the best source of information they had. For example, Backpage "unlike virtually every other website that is used for prostitution and sex trafficking, Backpage is remarkably responsive to law enforcement requests and often takes proactive steps to assist in investigations," wrote Catherine Crisham and Aravind Swaminathan, both assistant U.S. attorneys for the Western District of Washington. If you are looking for guests on the topic of the scope of Section 230, I would suggest Ari Cohn (FIRE alum) or Elizabeth Nolan Brown.


    https://pubmed.ncbi.nlm.nih.gov/18226454/
    https://www.stephanpeskin.com/wp-content/uploads/sites/1400864/2020/08/hot_water_burn_scalding_graph.pdf
    https://reason.com/2019/08/26/secret-memos-show-the-government-has-been-lying-about-backpage/

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  5. Avatar photo
    Will Roberts

    This was a more complicated episode than usual. Usually you do a good job in boiling down legal jargon. But I found it hard to follow the career criminal act conversation even after listening twice.

    But to boil it down the guy who robbed the the storage units could have been tried for multiple offenses but it was considered one occasion under the act? If it was more than one occasion he would get a stiffer penalty?

    How does this apply to other crimes like murder? If one kills five people in a bank robbery is this charged less harshly than someone who kills one person a day in a series of bank robberies spread over several days?

    I understood the rule of lenity conversation and how it applies to the case but I had trouble following what mens rea has to do with the case. What does one's state of mind have to do with whether one's offense is one or two occasions?

    The Texas lawsuit about facebook and sex trafficking I found different than the McDonald's case and the obligation to warn. In the McDonald's case there is a certain temperature at which coffee will not serious burn customers. So it seems the remedy is clear. But in the facebook case there is no clear guidance as to how much facebook would have to pay to ensure that all sex traffickers are removed from its sight. As you mentioned facebook has spent millions of dollars on the problem. So I think the allegation that facebook is choosing profits over safety is not supported by the facts. What would be a hypothetical amount that would ensure safety? The suit doesn't seem to have any amount in mind. I feel bad for the woman involved. But it doesn't seem facebook has the same liability as McDonald's or that the cases are similar in terms of fact pattern.

    If section 230 was reformed to address this problem. What would that reform look like? David suggested there needed to be reform in this area to prevent criminal behavior and I agree. But what would that look like? He didn't provide an alternative.

    I agree the Cosby case is has a detestable outcome. But the prosecutor messed up and the rule of law must be upheld.

    Perhaps we can distinguish between justice and the rule of law. I don't think justice was upheld in the Cosby case. But the Rule of Law was. Sometimes justice can't be done in this life for the sake of having consistent rules that form the basis of an ordered society. But it is better than anarchy.

    Did the grab bag of cases at the end have some common thread? Or was it just a series of cases Sarah was interested in. Sarah introduced them as if they had a common thread. But I failed to see what they had in common beside the fact that Sarah was interested in them. They seemed to be unrelated cases in law and fact to me. Maybe I just missed something.

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  6. Avatar photo
    Michael Harris

    Regarding Wooden v US. Bar room brawl hypo: when you assault multiple people in a bar room brawl, you would get an assault charge for each person you assaulted.

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    Justin Perry-Naw Dawg Doctrine

    I think I fundamentally disagree with Kagan here. There's a more apt comparison. The word serial is key. When a spree killer or serial killer is considered, even if the crimes happen in the same night, they are still treated as separate occasions. I fall with Gorsuch or Kavanaugh here. This seems insane to me. Ten different people were wronged, period. How is this not ten different crimes? Honestly, this feels like academic spillover into a really obvious question.

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    CP

    David, you simply must watch “It’s Always Sunny,” especially the first ten seasons or so. It’s absolutely brilliant. And there are lots of lawyer jokes, whether it’s Charlie believing himself to be an expert in “bird law” or the entire episode of “Reynolds vs. Reynolds: The Cereal Defense.”

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  9. Avatar photo
    Will Roberts

    Also could facebook satisfy it's duty to warn by putting a warning label on facebook as McDonald's put a warning label on coffee? Could they put a label on everyone's facebook page that reads something like, " warning facebook is a social media platform with millions of users. Why we spend millions of dollars to weed out bad actors we cannot guarantee there might not be some users who are criminals of various kinds. If you connect with someone on facebook that you have not met outside of our platform you do so under your own risk."

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    Ben Connelly

    Producer Caleb came in for some grief on this episode! You know I think David and (mostly) Sarah should be careful about biting the hand that feeds them, so to speak.

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