That Nationwide Injunctions Concurrence

David and Sarah start with a short talk about Elon Musk and his quest to ...

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David and Sarah start with a short talk about Elon Musk and his quest to buy Twitter, then talk about a fascinating 6th Circuit concurrence that’s the best two-page explainer of nationwide injunctions that’s available anywhere, and they wind up with an extended discussion of library book bans, and how to judge what’s best for kids.

Show Notes:

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  1. Casey M

    I would like to hear a Sarah and David's takes on The Dropout. Having heard John Carreyrou's podcast, I think the series takes it easy on the lawyers involved. I was particularly disappointed that we are made to feel sympathy with one of them at the end because she won't be able to find a job after working at Theranos. I would really like to hear what a lawyer's obligations are when it comes to facilitating a client's abusive or shady, but probably legal policies. I understand that an attorney is obligated to defend clients who do heinous things, but I don't think they are obligated to help clients carry them out.

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  2. Les

    Sarah, if you like the show "The Dropout" and the details of the Elizabeth Holmes story in general, I would highly recommend listening to the podcast by the same name by ABC News. There are six episodes telling the story that were released in 2019 and then a series of episodes that picked up when the trial began and followed it through to the verdict.

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  3. DRHanson

    David asked if anyone knew the 2nd Black player to play in the major leagues, and several people gave the common answer of Larry Doby. You will get a different answer if you ask true baseball history buffs such as members of the Society for American Baseball Research, or SABR, to name the first and second Black players in major league history. (Full disclosure: I’m a SABR member.) Most SABR members will tell you that the first Black major leaguer was Moses Fleetwood Walker, who played in the original American Association (which is recognized as a major league) in the 1880’s. The second was his brother Weldy Walker. Their presence on a major league roster led some white players, most notably Cap Anson, to refuse to play against their team if they were on the field. That refusal led to the establishment of the major league color line which was broken by Jackie Robinson decades later.

    But recently the answer to David’s question may have become even more complicated. Research by a SABR member has uncovered evidence that the first major league baseball player who would have been considered Black under the customs of his day may have been William Edward White, a mulatto former slave who played 1 game in the National League in 1879. However, White was relatively light-skinned and successfully passed as White throughout his adult life. So while he would have qualified as Black under the “1 drop” custom of his time period, the public was unaware of that status during his lifetime and he never had to deal with the pressure and ostracism that the Walker brothers, Robinson, or Doby had to face.

    Here is a short SABR biography of Moses Walker: https://sabr.org/bioproj/person/fleet-walker/ Here is a SABR bio of Weldy Walker: https://sabr.org/bioproj/person/weldy-walker/ And here’s a SABR article about William Edward White: https://sabr.org/gamesproj/game/june-21-1879-the-cameo-of-william-edward-white/


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  4. Vitaly

    I like David's idea about books in a library. All new books purchased for the year should be reviewed by the librarians and, if applicable, the members of the board. Explicit books can be checked out with parental permission. This solution involves parents without banning books outright.

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    Ian Fillmore

    Honest question: How do you know (or suspect) that a current Supreme Court precedent is "no longer good law?" What factors go into that?

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    Jim McC

    I think a clear distinction should be made about what constitutes a "book ban." Removing a book from a school library- or even a public library- is not a "ban." As noted elsewhere in The Dispatch empire, "Banned in Boston" was a sales pitch in places like NYC, where they sold books that had, per Wikipedia, "been prohibited from distribution or exhibition in Boston, Massachusetts." A book being prohibited from distribution or exhibition is pretty close to a textbook definition of a ban (though a total ban would include a ban on possession).

    A governing body removing books from a publicly-funded library (school or otherwise) is not a ban. I agree that more latitude should be shown than some statutes provide, but Sarah seems to have the right prescription here. Have a process, make it transparent, and stick to it. However, any process will necessarily be somewhat subjective; e.g., "I know it when I see it." Someone will have to judge. Right now, that person is the librarian who stocks the shelves; having a publicly accountable school board or even a municipal governing body provide a check does not strike me as outrageous. I am pretty die-hard on the free speech front, and am perfectly happy to have all kinds of material available to purchase and read in a free market. But David's objection on free-speech grounds has no limiting principle, to the point where it didn't sound like he saw any acceptable means of removing something like "Gender Queer" based on its content, even if he would personally not like to see it in the school library. I think Sarah has the better argument there, but even she doesn't quite take it far enough. If we're going to have publicly-funded institutions, someone has to have the ultimate authority to decide what can be displayed there, and I would prefer it be the most local institution possible that is accountable to the populace. I don't sense creeping fascism because a county school board decides certain titles are beyond the pale., and since they can't name every single one in a statute or ordinance, general guidelines will have to suffice, and perhaps individual cases be adjudicated by the board.

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    PaulH

    I do think the use of the word "banned" to describe removing a book from a school library is more than a bit overwrought. School libraries carry some books and not others. That it is determined that a book is not appropriate in a particular library does not seem particularly significant to me (whether a book is removed or not ordered seems irrelevant to me) and hardly merits the term "banned".

    I also doubt that there is much significance to the fact that 42% of the books that were removed had a POC has a primary or secondary character. Is there any evidence that the rate is actually disproportionate? My guess is that more than 42% of YA books written today actually have a black, Hispanic, or Asian as a primary or secondary character.

    Ultimately, these all seem like local decisions that we should not care about very much (like drag queen story hour). School districts can decide for themselves what books they wish to curate. And if you are displeased with your school district's selections or selection process then making a complaint to the local authorities is fine. But nothing I have heard suggests that these decisions actually implicate free speech as either a legal or cultural matter or that they should be a matter of national concern.

    Far more concerning is when a a large national bookseller such as Amazon caves to pressure from activists and decides not to carry a book (such as Abigal Shrier's book on transgender girls) solely because the activists disagree with the opinions expressed therein (Amazon eventually reversed itself). That is a direct assault on our culture of free speech and actually has national implications. It is an attempt to crush dissenting viewpoints. (And, FWIW, it is the type of non-fiction book that is unlikely to ever be "banned" by a school district but only because it is unlikely to be ordered by a school librarian --despite being highly relevant to a high school demographic).

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    Beach004

    Pedantic quibble: Sarah, I have always heard Roger B. Taney's name pronounced to rhyme with "pain"; do you have reason to believe it should rhyme instead with "lawn"? David, I'm on firmer ground with "primer"; when it refers to a schoolbook or the like, it is pronounced "primmer." But--love the podcast, as a total non-lawyer.

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    Jake

    On Sarah's comment that "Twitter isn't going to become Pornhub": Twitter already has explicit pornographic content. It is not about creating some decent space for people to express themselves. It has always been about what level of policing of opinions that don't fit the progressive media consensus they can get away with.

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      The_Mat_Man

      Yes, a particularly poor off the cuff analogy.

      https://www.cnn.com/2020/12/15/business/pornhub-videos-removed/index.html

      Pornhub removed a majority of its videos as they were "unverified" content where it was unclear if the uploader had the rights to upload said video.

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    Jason Gibson

    Personally I find it chilling that a bust of any supreme court figure would be removed because of their opinions.

    I mean it doesn't get any more orwellian than that

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    1. Brendan Bossard

      I agree with you insofar as all justices should have busts at the USSC to help historical memory. Removing Taney's bust would be unwise because it "erases" that part of history. If he were to have a unique statue for some reason above and beyond the mere fact that he served, I would have no problem with removing it.

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        Jason Gibson

        Agree

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