Free Speech Re-Education Camp

We sure do like our buckets.

By and

Sarah and David divide and conquer in an especially busy episode. Following a bright announcement from host emeritus, we delve into…

  • Trump’s possible defense against the Manhattan DA
  • Congress moving forward on a TikTok ban, but is it constitutional?
  • Is a bad joke to an admissions officer relevant to the Harvard discrimination case?
  • Stanford Dean’s public letter
  • A memo for young lawyers.

Show Notes:

-Watch: Sarah and David on YT

–There’s a problem with banning TikTok. It’s called the First Amendment

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Comments (89)
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  1. Avatar photo
    Ian Fillmore

    Dean Martinez saw fit to send all Stanford Law students to a remedial course on the first amendment specifically, and the culture of free speech more generally. Does this amount to an implicit acknowledgement that the current curriculum at Stanford Law School is deficient? In Dean Martinez's letter, she clearly refuted several questionable legal arguments (can we call them arguments?) made by the protesters. I think she was trying to model for these students what legal argumentation is supposed to look like.

    So big picture question, do law schools more generally need to take a close look at their curricula? Have law schools strayed too far from their core mission of training competent lawyers? If so, do David and Sarah have thoughts about what a law school curriculum should look like?

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  2. Avatar photo
    Ian Fillmore

    Congratulations to David and his family!

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  3. Cjonespam

    Forgive me if this has been addressed elsewhere, but I'd love to see Sarah or David comment on something Ken White (aka Popehat) recently wrote on his blog:

    "Personally, I like and respect many people affiliated with FedSoc, even though I increasingly see the organization as a force for evil in American life and a plausible vanguard for a dark period of totalitarianism, ignorance, and bigotry. I wouldn’t go to a FedSoc event because I can clearly imagine my grandkids cringing in horror that I did so 30 years down the path they’re following."

    https://popehat.substack.com/p/stanford-law-responds-appropriately

    David's spoken well of Ken in the past, and I don't think most people would argue that Ken's an unhinged progressive. Furthermore, I think Ken and David generally of the same mind when it comes to their opinion of the recent SLS letter.

    But reading that comment was somewhat jarring when I was listening to the most recent AO podcast, as D&S basically paint a picture of FedSoc as being a completely reasonable bunch of sane conservatives standing up for their values in an extremely hostile environment. And maybe it was when D&S were at law school... but it sounds like it may not fully be the case at SLS these days.

    To be clear, this has NO bearing on whether the judge had a right to speak - of course he did. But I'd appreciate getting AO's take on whether there's a fuller picture to be painted about the FedSoc these days.

    Thanks!

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  4. Avatar photo
    Ben Connelly

    Ouch that joke made me cringe. People in positions of authority (except for our shameless idiot politicians) are often held to an “appearance of impropriety” standard: there may be no actual impropriety, but they can’t even do anything that might be construed as impropriety (abusing their positions). In this joke, there may be no actual racism, but there is the appearance of racism. Given the context, that is enough. It is a damning indictment.

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  5. Jim S

    This was the first time I ever fast forwarded through most of the podcast.

    It is clear that the Stanford disruption is near and dear to Sarah and David but we are at 4 hours and counting.

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    1. App_esq

      Same. For first time ever I have just outright skipped a few recent episodes. It's not that I disagree with them at all on the disruption; rather, it should only take about 10 minutes to explain the obvious problems with the disruption.

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  6. App_esq

    I find your interpretation of the joke strained. I interpret the joke as one at the *idea* that Harvard discriminates, not as a joke that it actually does. I think the former is a much more natural interpretation. I grant that, assuming the joke is admissible, that the interpretation is a question for the fact-finder.

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  7. Avatar photo
    Adam

    Not going to lie, I grew up in Bellmore, New York, and had no idea about its place in the judicial history of equitable tolling!

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  8. Austin302

    I don't think a Goodyear Blimp pilot would enjoy the benefit of strict scrutiny if they argued with air traffic control...

    Another great episode, though I think you were too quick in the TikTok discussion to decide that strict scrutiny must apply to legislation that affects *methods* of delivering speech to the public. The government regulates methods of delivering speech all the time without meeting that high standard of review. Blimps, news helicopters, drones, skywriting planes, airplanes towing banners, and lots of other aircraft (and boats, trucks, etc.) are often used primarily as methods of delivering public speech, yet their operations are heavily regulated without strict scrutiny. The government must meet the highest standard if it wishes to restrict the messages that these aircraft deliver, but it only needs a rational basis to restrict flight paths, airspeeds, altitudes, and (perhaps most relevant to this discussion) even bar aircraft from flying at all unless the operators can affirmatively prove that the aircraft is constructed and equipped in a manner that regulators have decided is safe for the public. (The same goes for boats, trucks, etc.) Wouldn't the same principle enable Congress or a state legislature to use the same test (rational basis) to control or restrict an application's functionality - i.e., its method of delivering speech to the public, or delegate a regulator to do so, if the legislature made a finding that this method was a public safety risk?
    Of course, there are factual questions about whether or to what extent an application's functionality endangers the public, just like there could be questions about how much danger a Goodyear Blimp or a news helicopter poses to the public, but aren't those questions for the legislature to answer under a rational basis test?
    Finally, if the legislature decides that a phone app's functionality endangers people in their twenties (and not just teenagers), why should the legislature need to meet a higher standard of scrutiny to protect young adults from this alleged risk?

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    1. MathewA

      "Finally, if the legislature decides that a phone app's functionality endangers people in their twenties (and not just teenagers), why should the legislature need to meet a higher standard of scrutiny to protect young adults from this alleged risk"

      Well at least at the federal level I would ask where in the constitution it authorizes the federal government to do such a thing.


      I think banning TikTok on national security grounds is reasonable. But I don't want a nanny state government banning stuff for adults just because it might be bad for them.

      Note I also support full legalization of drugs, prostitution, gambling etc

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      Ellison

      All good points. I am not sure what actual evidence there is that TikTok is causing harm. A lot of assumptions are being made on broad correlations.

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  9. Dani Harlan

    Love the pod! Law student here. Curious if y'all (yep, Texan) would ever think about putting out merch. A lot of us would love it. Thanks for all you do! Hope you're doing well.

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  10. Avatar photo
    Scarlette Tarte

    Speaking to Mr French...congratulations grandpa! And I very much have enjoyed your offerings at the NY Times. In the columns where comments have been allowed, I have greatly enjoyed the liberal vs conservative discussions that have ensued. That is exactly what the country needs more of. Most readers appear to have been supportive of the addition of Mr French to the lineup.

    Thanks for your thoughtful insights. I play wordle, then the spelling bee, then do the crossword then read the paper, and engage in the debate. If anyone does not subscribe, I reccommend it, just for the comments section of David's column. We need to be talking to each other, and David is doing his part. Thanks David!

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    1. Avatar photo
      Kmregan7

      Agreed although I'm going to add - I miss the French Press (and my ritual of getting up early on Sunday to enjoy the quiet, the first cup of coffee, and my perusing of the French Press and comments section).

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