Did the Biden Admin Violate the First Amendment?

How biased is Advisory Opinions?

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It’s a grab bag show for David & David: Mark Meadows takes the L in Fulton County, the Fifth Circuit issues an injunction against the Biden administration, and Argentina gets ordered to make a $16 billion payout. Plus: Vanessa Oterro, founder of the Media Bias Chart, joins the show to drop some data on why you should definitely keep tuning in to Advisory Opinions.

Show Notes:

-Judge Jones’ Ruling in Meadows Case

-Poem David French was referencing (probably)

-Media Bias chart

-Argentina’s $16 billion payout

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Comments (35)
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  1. Avatar photo
    Rlreinovsky

    Great episode! Sarah, while you are on maternity leave I hope you are listening to Revisionist History, because I’m really looking forward to a conversation on this podcast about the current season and your thoughts on Gladwell’s perspective on the second amendment.

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  2. Helbock

    If Trump goes to prison under current circumstances and prosecutors and if we get a republican president in 2024 then Biden and his son are going to prison. Do we really want to start this sequence? How can we now get out from under this sword of Domiciles.

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  3. AndrewC

    Great episode! I am torn now between excitement at Sarah’s return and sadness at David Lat’s departure. My only hope is that he may become a more semi-regular guest, particularly if the cases discussed are ones he has some points of disagreement. Regardless, thanks for keeping the podcast going strong David L. I appreciate your guest co-hosting and congrats on the high rating AO

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    1. Davidbenjaminlat

      Thank you, Andrew—I appreciate your kind words! And I'm always delighted to join David, Sarah, or both of them on AO.

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  4. Avatar photo
    Ian Fillmore

    The purpose of the first amendment’s free speech clause was to protect individuals from government control of their speech. It was NOT to protect the government’s ability to “persuade” private companies to curtail the speech of individuals. To use the first amendment as justification for the latter is Orwellian.

    In the pantheon of protected speech, I consider “government speech” near the bottom. I’m wondering if we should just consider ALL government speech presumptively coercive. (I thought we all agreed during the MeToo movement that when power dynamics are sufficiently imbalanced, even speech that seems non coercive on its face may in fact be coercive due to those power imbalances.) The burden would then fall on the government to prove its speech was not coercive. Would this force government officials to think carefully before they speak? Absolutely. Would that concern me? Not at all. The people with the guns and prisons should be the most circumspect in what they say.

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    1. DJ

      The government used to ask Facebook and YouTube to take down ISIS recruiting videos. Do you think that shouldn’t be allowed?

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      1. Avatar photo
        Cogitatio

        I think the first question is whether or not the ISIS recruiting video is a US citizen's speech or not. Free speech for the world is aspirational, but not constitutional. Free speech for US citizens is a matter for the Constitution.

        And if ISIS started using US citizens to sponsor the videos to get around it, then we enter the question of what the government can legally do to those citizens, both in a constitutional free speech sense, and in a legal sense (aiding and abetting terrorism, etc.)

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      2. Avatar photo
        Ian Fillmore

        I think the government should bear the burden of showing that its requests to take down ISIS recruiting videos are not coercive.

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  5. Wegmanss

    The subject of social media moderators having to subject themselves to hours of vile material and what that can do to their health reminded me that I served on a county Grand Jury once. If memory serves, we met every other week and heard 30 to 50 cases each time we met. Most of the cases seemed to be sexual assaults, drugs and robberies. I came out of each session feeling like I'd been covered with slime. I cannot imagine how a prosecuting attorney can do that job for any length of time without damaging his/her psyche.

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    1. Avatar photo
      Sethallenbarrera

      Several years ago, I worked at a used bookstore alongside a former defense attorney who left the profession after getting very burnt out. He said something very similar. Defending those who are accused of such offenses seems to have a similar effect.

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  6. MathewA

    I would love to see a more in depth look at the problems of people essentially being blackmailed into taking a plea deal vs getting the jury trial that the constitution guarantee's as well as the trade off's.

    It provides incentives where an innocent person might plead guilty to a crime they didn't commit because the chance of taking it to trial means jail time goes from months to decades. That just isn't right.

    On the flip side, more people getting jury trials would break our current system.

    And if we were to have changes, what would a rational system look like?

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    1. Davidbenjaminlat

      You might be interested in Professor Carissa Byrne Hessick's book, "Punishment Without Trial: Why Plea Bargaining Is a Bad Deal" (2021):

      https://amzn.to/3sQjCh7

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  7. P Satter

    David, the English children's poem you partially quoted when discussing the 5th Circuit was this one:
    "There was a little girl
    Who had a little curl
    Right in the middle of her forehead.
    When she was good
    She was very, very good
    But when she was bad, she was horrid." (part of a longer poem by HW Longfellow)

    The nursery rhyme that compares boys and girls is a different one.

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    1. Avatar photocircle-angle-nib
      David French vertical-nib Author

      That's the one! Thank you!

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  8. Hcreedlaw

    1. I'm curious whether the raters are given material 'anonymously' to minimize preconceived ideas about where the source would fall on the chart before evaluating that particular piece. Like if they know a piece is from Infowars before they read it, they are already going to have ideas about its reliability and bias.

    2. I wonder how the particular articles/episodes are selected. One of the AO episodes being evaluated was on litigation financing. It seems like some topics lend themselves more to revealing any bias. Like I wonder if the episodes following the Dobbs decision would have a different outcome. What if the three episodes selected are not really representative of the source as a whole?

    3. I like the chart, but it does seem hard to truly distinguish between reliability and bias. Wasn't The Dispatch created to be a reasonable/reliable conservative news source? That's the main reason subscribe to it. Is AO really that far off of that? I actually think you're more reliable if you recognize your bias (as David F. does regularly), but that doesn't mean that the bias isn't there.

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    1. MathewA

      1. Good point, though might be hard to do in some instances. Especially with a podcast where you might recognize it.

      3. I would agree that everyone is biased even people that strive to be 100% objective. That being said, obviously it's on a scale. Some people try hard to be objective. But others clearly don't, and instead just throw red meat to the partisans

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      1. Hcreedlaw

        Agree on both. But with #3, it seems like that goes more to reliability? Bias and reliability just seem to not be easily separable. As someone else commented, that seems to contribute to the bell curve. If something is extremely biased, it usually is not going to be reliable. I guess something could be unreliable but not biased (lots of opinions but equally disparaging), but I'm not sure it could be the opposite.

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  9. Biglaw_Blues

    Judge Jones' opinion really gravitates around only a small section that says---basically---"the Hatch Act defines the outer limit of Meadows federal duties since the Act bans (loosely) "campaigning" while in office, Meadows conduct was for the campaign, therefore it was not part of his duties. No removal"

    That doesn't make any sense.

    Judge Jones is basically saying that because the Hatch Act creates a *violation* when doing X while on official duties, Judge Jones will rule as a matter of law that Meadows' conduct essentially could not violate the Hatch Act. I.e. "I'm going to read this as outside the scope of his authority because otherwise there would be a violation of the Act." But why?

    That's important for Jones to get to this end outcome, because if he found a violation of the Hatch Act, that is necessarily conceding that he was acting under color of his office.

    But the Hatch Act has zero enforcement if the President doesn't enforce it, and President Trump certainty wouldn't. Even if Biden were to retroactively enforce it, it's only a small fine and "discipline." Meadows would be more than happy to just concede he violated the Act.

    There's a bevy of federal law and policies prohibiting federal officers from violating rights. If we applied the same logic, removal could *almost never happen* because you just say "well, XYZ defines the outer scope of conduct, federal policies say you can't murder anyone so that's outside the scope, therefore no removal for the FBI agent charged with state murder for a shooting on duty." Everyone would know that's crazy, but "no campaigning" just *feels* right.

    Jones didn't even analyze the federal defenses, essentially making the color of office as defined by the corpus of other rules a threshold question. So the FBI agent charged with state murder couldn't even raise his federal defenses because Jones' theory cuts off the legs with one neat trick. "Nah, it's just not in your office otherwise that would be violating some policy!"

    Just because Meadow's conduct may have violated (a relatively toothless) other provision of law is borderline irrelevant for the analysis. His conduct is fully capable of *both* violating the Hatch Act *and* triggering removal. The color of office is an independent analysis and so be it if it also violated the Act.

    I honestly feel like this whole Hatch Act thing just picked up by the Twitter hivemind by partisan, but credentialed, actors and got into the air so much that no one really challenged it. "Well all these famous commentators are saying it so it must be a serious theory."

    I could go on about President's law enforcement capacity, other federal defenses such as against the Hatch Act itself, etc etc.

    I'd take this appellate brief in a heartbeat. The removal standard for federal officers is supposed to be a quick look, Jones is making it a minefield. If the DOJ had any integrity they would brief in support of Meadow's removal to protect the federal interests at stake if this becomes the removal law.

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    1. Davidbenjaminlat

      As David (French) and I said on the pod, we have concerns about Judge Jones's analytical approach. By adopting this "heart of the charge" analysis, the judge arguably adopted the prosecution's theory of the case and assumed something he was supposed to be deciding. So there are grounds for a reasonable appeal.

      On this Hatch Act point, though, David was very careful to explain that the issue is NOT about the application of the Hatch Act to this particular situation. This isn't actually a Hatch Act case.

      Instead (and as I've argued before here in the comments), the Hatch Act merely reflects a preexisting, commonsense distinction between (1) the official acts of a federal official and (2) actions not taken under color of federal office. And in that sense it provides a useful analytical construct. But there are other bodies of law that might also provide useful constructs—e.g., "under color of state law" for 1983, respondeat superior in tort law (even though nobody is claiming this is a 1983 case or a tort-law case).

      In this particular case, is it your view that ALL of Meadows's actions were under color of federal office? Or are there some that you would concede were not under color of office?

      As I've argued here before, the "color of office" language has to have some meaning; it has to be doing some work. The statute could have been drafted to cover any and all actions taken by a federal official, "as long as that official holds federal office" (or something like that). But that's not what the statute says. And I think Terwilliger lost some credibility with the court by being so stingy at oral argument in acknowledging what actions would not fall under color of federal office.

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      1. Biglaw_Blues

        (big fan btw, despite disagreeing on this topic!)

        I agree this wasn't a Hatch Act case, Judge Jones just made a mini-trial about it because he gravitated his analysis around it---incorrectly, in my opinion.

        As to color of authority, that's a well-used term that has a broad meaning, derived from common law:

        In Mesa v. California, one of the leading cases on FOR, the Court cited to C.J. Taft in Maryland v. Soper, 270 U.S. 9, 33 (1926), who stated,
        "There must be a causal connection between what the officer has done under asserted official authority and the state prosecution. It must appear that the prosecution of him, for whatever offense, has arisen out of the acts done by him under color of federal authority and in enforcement of federal law, and he must by direct averment exclude the possibility that it was based on acts or conduct of his not justified by his federal duty.
        _________________________________________________________
        But the statute does not require that the prosecution must be for the very acts which the officer admits to have been done by him under federal authority. ****It is enough that his acts or his presence at the place in performance of his official duty constitute the basis, though mistaken or false, of the state prosecution.****" 489 U.S. 121, 131–132.

        Judge Jones cited Mesa in a block quote, Opinion at 14, BUT OMMITTED THE REST OF THE OPINION AFTER THE LINE I ENTERED.

        (But the officer in Mesa **failed** to raise a federal defense at all. Which is not the case for Meadows, and more similar to Jones' analysis. It's an interesting read in light of this ruling btw)

        Likewise, in the 1983 context:
        "As the Court of Appeals correctly understood our cases to hold, to act "under color of" state law for § 1983 purposes does not require that the defendant be an officer of the State. It is enough that he is a willful participant in joint action with the State or its agents. Private persons, jointly engaged with state officials in the challenged action, are acting "under color" of law for purposes of § 1983 actions." Denis v. Sparks, 449 U.S. 24, 27 (1980) (White, J.---Gorsuch's mentor). So it's even broader than just "what is the scope of your employment" re respondeat superior, it's more akin to waving the flag and asserting the power of the state.

        Color of authority is a common law term, and when statutes use common law terms the presumption is that they carry their common law meaning. Black's Law Dictionary defines "Color of Authority" as "That **semblance** or presumption of authority sustaining the acts of a public officer which is derived from his **apparent title to the office** or from a writ or other process in his hands apparently valid and regular" (emphasis added), available at https://thelawdictionary.org/color-of-authority/.

        I'm applying bread and butter terms, Jones is the one innovating here, and being dishonest with citations.

        Edit: See generally, Steven L. Winter, The Meaning of "Under Color of" Law, 91 MICH. L. REV. 323, 326 (1992), available at https://repository.law.umich.edu/cgi/viewcontent.cgi?article=2391&context=mlr.

        Fascinating article that I think David (French) would enjoy. See especially page 361 where the author discusses (maybe intentional?) brutalizing of the term in removal cases by Justice Frankfurter.

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        1. Davidbenjaminlat

          I think I'm coming around to your view that Meadows should prevail on the "under color of federal authority" prong. If I'm allowed to mention another legal podcast in these pages, Ken White and Josh Barro of "Serious Trouble" agree with your point that it wasn't meant to be a high bar. That said, they think the defendants face a challenge under the "colorable federal defense" prong—and I tend to agree.

          Ken thinks that if the Eleventh Circuit reverses, which he thinks is a real possibility, they might remand to Judge Jones to have him undertake the "colorable federal defense" analysis. That would be the usual approach, but I do wonder, given the exceptional circumstances of this case, whether the Eleventh Circuit might undertake that analysis itself if it rules that Judge Jones go the "under color of" analysis wrong. It would be unusual, but I think that (1) it could be justified on the grounds of judicial efficiency, since sending it back and having it appealed a second time would drag out the litigation even further, and (2) there was an evidentiary hearing here, so the Eleventh Circuit has a decent record to work with.

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          1. Biglaw_Blues

            Also a fan of Mr. Popehat.

            I agree on reverse & remand for proper reconsideration of the issue. The Motions Panel they got is pretty crappy. But the Merits Panel may save them, and what are the odds they pull 3 dems again? (This is the logic that hemorrhages money at Blackjack, so feel free to dismiss lol).

            I think it was another mistake of Jones---assuming he viewed the correct outcome to be 'Meadows loses'---because he should have ruled additionally/in the alternative Meadows loses on both prongs "but I do not rule which way"

            But the reason, I assume, Jones didn't mess with the colorable federal defense is because if you presume that Meadows was acting under the color of his authority (which he was, even if he was wrong to do so), the defenses get much stronger. So Jones cut his legs off at the threshold.

            The mostly likely scenario in my rank speculation is that CA11 still remands for consideration, but gives a rule of law section in their opinion that is the de facto law of the case anyways.

            On the merits, I don't see how just saying everything is unconstitutional is colorable. Regardless, a smart associate with Westlaw can find enough to cross the finish line on "colorable"----it's a drafting problem.

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  10. Michael.Mcchesney

    My brother spent more than a decade working full-time as a moderator for Huffington Post comments. I had actually gotten him that job when I briefly worked there part-time. I lasted three months. I was fired for approving a comment that criticized Arianna Huffington, but did not, in my opinion, violate the TOS. The amount of truly vile things you had to read in that job had to be seen to be believed. I really worried about my brother's health because of it. However, the Huffpo was acquired by several companies, and eventually, Verizon decided to replace their moderators with software. That was almost seven years ago, but I imagine that software was some kind of early AI. These days, my brother has a much better job, in most ways, at least. His commute has gone from walking downstairs and turning on his computer to traveling from Putnam County to lower Manhattan. He also doesn't receive Oscar screeners in the mail anymore. The HuffPo moderators had voted to join the Writers Guild, and movie studios sent screeners to everyone in the union, not just those with Oscar votes. I know he misses that perk.

    When I was a practicing attorney, I worked primarily in litigation defense and never had to deal with collecting a judgment. But after I became a “recovering attorney,” I had a dispute with a landlord that caused me to relapse a bit. The landlord refused to respond to any of my certified letters, causing me to file a complaint with the NYC Office of Rent Administration. By the time I won my judgment, I had moved. While I wasn't been sure what my next step was, my friend Geoff used to have his own practice where he did landlord-tenant law before becoming a teacher. He told me that I could file the judgment with the clerk and then have a city marshal collect all the rent from my old building until the judgment was satisfied. I filed the motion but never had to go to a marshal. The day after I filed the judgment, I got a call from a paralegal offering to settle my claim for 20% of my judgment. I told her that if they had wanted to settle, they should have made an offer before I had won a judgment. She then told me that one of the two owners of the building had died, so everything would be tied up with his estate. I countered that the building was owned by a corporation and the death of a shareholder didn't affect the debts of that corporation. I told her not to worry about it, I was just going to have the Marshal collect all the rent from the building until the judgment was satisfied. She said she would talk to their client. I received a check for the full amount via FedEx the next day. Thank you, Geoff.

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