Sore Losers and Dr. Phil

Gorsuch a babe.

By and
116

Sarah and David have some legal catch-up to do but first on the docket is some rank punditry on Donald Trump’s endless legal saga.

The Agenda:
—Why is there a delay on Trump’s cases?
—David explains NetChoice v. Paxton
—McElrath v. Georgia update
—No Labels considers Nikki Haley
—Dr. Phil’s our guy
—Home Depot and free speech
—NCAA name, image, likeness rules
—AO dating app update

Today’s episode is supported by Burford Capital. Follow the link to learn more: http://burfordcapital.com/ao

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Comments (116)
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  1. Rodrubert

    I would like to hear the argument against carrier as being defined as the service provider for delivery of network payloads. Verizon and ATT would be examples. GMAIL, Facebook, X, Instagram are applications. They are not responsible for movement of data, they pay carriers to do that. They are simply interactive applications.

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  2. 44cpond

    Kinda random, but I feel a website that reads you Google's legal terms of service to help you fall asleep is something this community would appreciate and needs to be made aware of if you aren't already. Enjoy and sweet dreams!

    https://www.zzzuckerberg.com/

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  4. Tony.Inch

    Sorry, I'm a bit late commenting on this BUT...
    Both Sarah and David were a little too flippant re SCOTUS agreeing to hear the Trump immunity case.
    Where was the punditry? Where was the outrage? With this decision, they (SCOTUS) are ONLY helping
    Trump delay this trial until it will already be too late to start it. This is a critical case that needs immediate attention (remember Bush v Gore?). Maybe Sarah and David agree with what SCOTUS might be saying in doing this.."Let the voters decide". That may not turn out so good. Tony

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      squarooticus

      One of the things I appreciate about AO is the (mostly) dispassionate analysis of the topics from a legal perspective. There are no shortage of outlets you can patronize to satisfy your desire for various kinds of pearl-clutching and conspiracy theorizing about literally every decision or official action that might go Trump's way for one reason or another. I could, for instance, subscribe to the NYT if I wanted that. I instead choose to subscribe to the Dispatch so I can get a reasonable conservative perspective on notable issues from reasonable people (and to that end I tend to skim or skip content from Nick and Steve).

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    squarooticus

    I feel like David is trying to have it both ways with his analysis of de-platforming, specifically with the common carrier vs. op-ed analogy.

    It seems to me that EITHER social media sites can be common carriers and are consequently not responsible for the content posted there by users; OR, they can effectively be publishers of op-eds, choosing which user content reaches other users, but are then responsible for that content from a legal perspective, e.g., with respect to libel law.

    It does not make sense to give platforms the power to censor content arbitrarily and also disclaim any responsibility for the consequences of those choices.

    There is a grey area for basic filtering, e.g., of spam (akin to telemarketing calls) and possibly of offensive words, but the more complex the filtering the less likely it is to pass the common carrier sniff test.

    (Caveat: IANAL.)

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    1. BenP

      My understanding is that the purpose of section 230 of the CDA is explicitly to allow social media sites to moderate content without being held liable for it. I think you'd need to get rid of 230 for your position to hold.

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        squarooticus

        No contest.

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  6. Austin from Atlanta

    Do the sore loser laws only apply to running for the same office? There are countless examples of people who run for president in a primary, lose and then are on the ticket as a VP (our current VP, for example.) Candidates often run for senator/governor and then drop “down” to run for a house seat in the same cycle. I also think of the famous Murkowski write-in campaign in Alaska. She wasn’t on the ballot but was still “qualified” to receive votes.

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    Patterico

    We are told in this podcast at 9:30 that an October trial "would clearly violate the DOJ's policy on not, basically, holding criminal trials that could affect an election . . . It's generally . . . Labor Day has been roughly the guidepost . . ."

    And yet . . . DOJ doesn't seem to agree,

    https://www.nbcnews.com/politics/justice-department/trump-classified-documents-case-florida-courthouse-appearance-rcna140687

    "Notably, prosecutors from the special counsel's office signaled during the hearing that the DOJ's policy against taking actions close to an election does not apply to the federal indictments against Trump.

    "Cannon raised the issue of the DOJ's '60-day rule' against taking actions that might affect an upcoming election. Speaking for the government, Jay Bratt said that the policy doesn't apply to cases that have already been indicted and are being litigated. He said the department's public integrity section reviewed the rule to ensure the special counsel's office would comply.

    "'We are in full compliance with the justice manual,' Bratt said during the hearing, which Trump attended in person."

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  8. Kashmus

    Not relevant to this episode, but a district court has just found the Corporate Transparency Act to be unconstitutional. I’m a past chair of the NSBA, the plaintiff in the case. Tried to paste the decision here but couldn’t. Here is the caption information.

    UNITED STATES DISTRICT COURT
    NORTHERN DISTRICT OF ALABAMA
    NORTHEASTERN DIVISION
    NATIONAL SMALL BUSINESS )
    UNITED, d/b/a the NATIONAL )
    SMALL BUSINESS )
    ASSOCIATION, et al., )
    )
    Plaintiffs, )
    )
    v. ) Case No. 5:22-cv-1448-LCB
    )
    JANET YELLEN, in her official )
    capacity as Secretary of the )
    Treasury, et al., )
    )

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    1. Sdsnyder

      I just finished reading this 53-page opinion holding the Corporate Transparency Act unconstitutional. Very interesting discussions featuring Necessary and Proper Clause, Congress' powers to regulate commerce, oversee foreign affairs and national security and impose taxes, and standing.

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      1. Sdsnyder

        A link to the opinion was posted on LinkedIn; see if this works: https://lnkd.in/edZwEx5U .

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  9. BenP

    Regarding some of the justices seeming pretty ignorant about section 230 and social media: does this suggest that they aren't reading the briefs ahead of time? Or that their clerks are doing a bad job of summarizing the important precedent, arguments, and facts for them before oral arguments?

    Usually during oral arguments I hear justices referring to specific portions of the briefs, and I take that to imply they've read these. Am I being naive?

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  10. R. James

    I think Sarah and David were too quick to dismiss Haley's possible candidacy with No Labels. Especially when they made a more persuasive case for why the Sore Loser laws would be found unconstitutional than would be upheld. This is especially the case when SCOTUS is going to likely rule against Colorado barring Trump from the ballot in June. I also find it hard to believe that a Secretary of State would act to bar Haley from the ballot in the wake of a potentially 9-0 or 7-2 decision striking down Colorado's attempt to bar Trump from the ballot. Even if they did so I would think that the Courts would expedite review like they did in Trump's case and it would be resolved before Election Day. It is also worth pointing out that Trump will appear on next week's primary ballot in Colorado despite the on-going court case over it.

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