The Tech Term Arrives

Time to pop Tums for some spicy content.

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It’s a SCOTUS packed pod featuring an Alito dissent going into his ~feels~. Plus, AO is getting ready for the much-anticipated Tech Term(s), and Sarah needs David’s reassurance that everything will be alright. On the docket:

–Dueling certs over state actors blocking users on social media

–Alito bring out the hot sauce for shadow dockets debate

–The tweet the triggered David

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  1. Avatar photo
    Whit Waldo

    I'm a bit behind on listening to this podcast, but I wanted to share my take on it none-the-less. The attorney for Colorado at one point mentioned in brief, "This is crucial for the law to be able to protect [everyone]," and the counsel for the federal government said it was important to avoid a situation where a prosecution fails and the victim walks away thinking quote "even the law cannot protect me." It was only the two speakers for the various governments that took some position about the law protecting people and I find that to be a curious position. I think of the oft-assumed position that young people are glued to the news to stay abreast of all the latest changes in the law; I mean, we supposed prosecute people harshly to "set an example" - for whom else?

    But if one looks past their rose-colored glasses, I think the more realistic characterization is that the law is generally retaliatory. Until you do a thing, the law will not descend on you. There's the looming threat that you may increasingly do something that might cause the law to pay closer attention to what you're doing, but the notion that the law itself preempts criminal action seems laughable to me.

    The law doesn't prevent the robbery of a shop, stop the theft of a car, keep the guy safe that gets beaten up on his walk home, or limit the access of a stranger to my house - but it does prescribe what will happen next, namely that law enforcement (notably not law prevention) will attempt to capture the offenders, an evaluation of the accuracy of the capture will commence and if found guilty, a punishment is prescribed.

    Is this a common (albeit, I think a misplaced) notion that the law exists to protect?

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    Peter S.

    When David was trying to figure out how to express J. Kavanaugh's idea that the speech of the stalker may not be in dire need of protecting, I kept waiting for the phrase "Is the juice worth the squeeze?"

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  3. Shane Davitt

    For all of Justice Alito’s accusations of hypocrisy by his colleagues, it’s odd he doesn’t explain his own. His dissent doesn’t give a detailed comparison on why he allowed emergency relief in the other cases he cites, but not here. Of course, being on one side of an order doesn’t force you to stay there in the future, but that’s essentially how he treated his fellow justices with his cursory review of the merits for the stay.

    On the free speech stalking case, I’m also quite suspicious of an elevated mens rea, at least one of intent or knowledge. I was curious how Justice Gorsuch, and others I believe, we’re insistent that subjective state of mind could come in as “context” even if the standard was purely objective. (Justice Gorsuch could have been using this to advocate for a subjective standard, but he never connected the dots explicitly to my memory.) Listeners aren’t mind readers. The meaning of a speaker’s message to his audience and it’s effect on his listeners is entirely divorced from what he kept secret in his head. Perhaps testimony on meaning can unearth facts knowable to a listener and not provable by other evidence, but otherwise I think subjective intent is irrelevant under a negligence standard.

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    PaulH

    I am a strong defender of first amendment rights, but I think the reasonable person standard is the right standard to use in this case. Yes, context matters, but one can interpret statements in context without adopting a subjective intent standard-- a reasonable person would always interpret a statement in context. On the other hand, how can one prove subjective intent? Usually that is done, at least in part, by looking at a person statements. So the entire analysis would end up being circular and unworkable.

    I don't think the "notice" argument is strong. If the reasonable person standard doesn't provide notice in this context, then it doesn't provide notice in any context. And that would suggest vast swaths of American law are void.

    Note that I do have some concerns about changing standards. These days there are so many people who claim the mere statement of a political position they are opposed to, for example a pro-life position, makes them feel unsafe, one wonders if the reasonable person standard could be leveraged to silence dissident viewpoints. I think we are far from that, but I can see us getting there.

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  5. Adam

    I know you don't have time to do every suggested topic.

    But I saw this on twitter and it seemed like one of those one of topics that might be worthwhile.

    The article below is about many who has been awaiting trial for ten years. His public defender (not sure that is the right term since it is a private lawyer who was hired to act as his defender) withdrew from the case last year, and he has been without a lawyer since. The others who were also arrested simultaneously were acquitted in 2017.

    I am interested not just in this particular case, but also in the issues of why cases take so long to get through the court system.

    https://www.atlantanewsfirst.com/2023/04/26/georgia-man-behind-bars-10-years-still-waiting-his-day-court/

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  6. Brian L

    David's point about looking at the court through a philosophical vs a political lens makes sense to me, however the case of the elections never feels like a strong example. I think this is because when I hear "political" I'm actually interpreting that as "the judges personal/political philosophy" (as opposed to their legal philosophy). So cases that would ring true to me are ones that go against their predilections, not against their party.

    If I use this lens to look at election cases, my thinking is that judges may not be strong Trump supporters, and definitely don't want the judicial branch to be pushing legal boundaries in the heat of an election. So its not surprising that they'd decide the way they did & therefore its not surprising that they'd go against the party on elections cases.

    I'm posting this as another way of explaining what people might hear when someone says "political" not because I disagree with David's broader point.

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  7. Ben from Denver

    Here's a bill out of my home state that might be worth keeping an eye on... Colorado Senate Bill 23-172 (https://leg.colorado.gov/bills/sb23-172). The bill would, among other things, redefine "harassment" in our state's anti-discrimination statutes, and the new definition relies much more on whether the alleged behavior is subjectively offensive to the individual raising the claim. The definition layers on additional factors for the analysis that seem to further muddy the waters.

    I'm not sure whether other states have gone a similar route, but it seems to me like the proposed new definition could run into some First Amendment problems, and at the very least it will be much more difficult to interpret (I serve as General Counsel for a company in the Denver area, so this is a bill I'll be watching closely). I can't predict whether the bill will move forward and be signed by the Governor, but it seems to be heading in that direction. If it does become law, I'd be super interested to hear your takes on it!

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  8. Alvin

    I feel like the Twitter comment regarding "where this court is at right now" in the context of the abortion pills stay, is getting some short shrift.

    This is a court that could not find a way to enjoin the Texas abortion law (back when abortion was still a constitutional right). If it had been gun rights or free speech, I believe they would have found a way (as I recall, the hosts of this podcast expressed similar sentiments).

    This is a court who overturned precedent upon precedent in the Dobbs decision.

    Within the last few months, we are seeing the fruit of this courts institution of a "history and tradition" test for gun laws. Those fruits, by the way, elicited some strong feelings on this very podcast.

    I resonate with the sentiments in the tweet, and frankly, I'm surprised that the hosts of this podcast were not more surprised or at least felt a little suspense over it. The court only need 3 more votes to go the other way, and across Roberts, Kavanaugh, Barrett, and Gorsuch, I'm surprised that it ended up the way that it did.

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    1. MathewA

      Disagreed. The court is finally moving in the right direction, one that is started to be restrained by the actual consitution.

      The downhill slide was during the new deal when they started letting the federal government do all types of stuff that the constitution NEVER authorized.

      The federal government is supposed to be a limited one based on enumerated powers, not an almost unlimited one that is only restrained by the bill of rights.

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  9. Avatar photo
    Dustin Anglin

    Haha, I thought the spiciest take from Alito was accusing the FDA of not proving it wouldn’t just ignore orders it didn’t like since it had decided to relax enforcement of regulations in the past 😆🌶️🌶️🌶️

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  10. JP

    Kept hoping one of you was going to mention 12 Angry Men on the whole topic of what "I'm gonna kill you" means in different contexts.

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