You Must Have Misunderstood Law

Trump’s legal drama — Judge Cannon returns! Ken Paxton opines! Fraud alleged! — will be discussed ...

By and
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Trump’s legal drama — Judge Cannon returns! Ken Paxton opines! Fraud alleged! — will be discussed at last… But first, Sarah and David preview what promises to be a spicy term for the Supreme Court (with not one, but two Section 230 cases!). They then pass through a culture war cul-de-sac via Judge James Ho’s clerkship boycott of Yale law students, and conclude with a tribute to Judge Laurence Silberman. 

Plus: the committed listener will learn the truth about how Sarah ended up in The Federalist Society.

Show Notes:

–David’s amicus brief

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  1. NP1626

    I thought it was this podcast where I heard David speech about the "every creative is a monopoly" legal theory in the 303 case - can someone point me in the right direction? Or if anyone has an opinion on why that theory is flawed - any reading linked would be great!

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    Young Riprock

    I went to law school 10 years ago and I didn’t even know what the Federalist Society was until after law school. I just went to presentations that sounded interesting. I never paid attention to who hosted the presentation.

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  3. Roger Ellis

    Possible topic for future episode. Houck and other FACE act violations. Are these legitimate, constitutional prosecutions? Or is this bs stirred up by the right?

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    Sully

    With respect to Yale. Is it acceptable if a Judge won't take someone who graduated from University of Iowa? What about a respected but non-Ivy like Northwestern or Stanford? So long as any of those are acceptable then there has to be some sort of mechanism for a school moving out of an acceptable quality range just as there should be for moving into it.

    The main argument against judge Ho seems to be "but it's Yale and that's really prestigious".

    Well, tough toenails. You can only ride prestige for so long before it becomes apparent it's merely a façade. Does it suck for some particular students, sure, but it's also very good for some other, also very capable students. It's not like Yale students won't have any opportunities for clerkships and this is the system working as intended. A market is the sum of the individual actors and this just moved the market for Yale grads down a very tiny bit though may be more of a warning shot across the bow.

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  5. Sean

    The answer to the OLC memo is a president can be indicted while in office, but they can also pardon themself and nix the indictment or investigation, so an indictment is pointless.

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    Seth B

    When listening to the Judge Ho discussion, I felt like a cartoon character with a little devil (Sarah) and angel (David) hovering over my shoulders, each making their case. "Hmmm... that's a good point", I'd think, only to be followed by "Ah, but THAT's an even better point", and so on and so forth in an escalating series of reappraisals.
    In the end, the angel wins.
    Great episode, you two.

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  7. Tngraham

    On the social media/regulation cases, I disagree with your framing of the disagreement between the two parties as being between "moderating more" vs. "moderating less." That framing is tendentious and blurs issues that ought to be kept separate. It is not about more vs. less so much as about what ought to be moderated/censored. That is, there are two separate questions that need to be answered:

    (1) in what circumstances *may* a social media company censor the speech of a user of their site?

    (2) in what circumstances *must* a social media company censor the speech of a user of their site?

    With regard to the first question, lefties and people emotionally attached to Section 230 tend to want to say that social media sites should be allowed to censor whatever and whenever they feel like it. Their opponents, most of them conservative, think that there should be sharp limits on this, and that it ought not to be allowed to censor people on social media platforms unless what they are saying is either illegal (e.g., because it is defamatory, obscene, and so on) or is inappropriate in time, place, or manner.

    As for the second question, left-wing types tend to advocate for making social media companies censor aggressively (e.g., against "disinformation"). More libertarian types tend to think that there should be very few cases in which social media companies are forced to censor.

    Speaking for myself, I think the answer to question 2 above is that speech must be censored only when the speech in question is actually illegal--i.e., that there is some legitimate legal basis for requiring that a social media company censor a post. As for question 1, if your speech isn't illegal, in general it shouldn't be censored (although it should be subject to some time, place, and manner restrictions of the sort that apply to true public fora).

    In short, social media companies should only be held accountable for what their users say when it violates the law in some way, and they shouldn't censor their users otherwise except to apply time/place/manner restrictions.

    As I've said on multiple occasions, I think that social media is much more analogous to a common carrier than it is to a newspaper or publisher. The latter analogy guided the creation of Section 230 but it is not a good analogy anymore, if it ever was. Social media is a new wine and it doesn't work with old wineskins.

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  8. Michael.Mcchesney

    I attended college at SUNY Albany in the 1980's where I joined the College Republicans. My freshman year, most of the members of the College Republicans joined a new organization to campaign against continuing to fund NYPIRG. The New York Public Interest Research Group was a nonpartisan, but left wing organization that, like PIRGs in most states, was founded by Ralph Nader. Every 4 years there was a student referendum to allocate $6 of every students activity fee to NYPIRG which then used the money primarily off campus to work toward left wing goals. The campaign was vicious and nasty. At one point Ralph Nader came to speak on campus and called us fascist sons and daughters of the ruling class. It was not the last time I was called a fascist while a student there. We ended up winning the referendum by 6 votes. But we had pissed off the student government so much they voted to give them the money through the regular appropriation process. I ended up becoming a plaintiff in the Atlantic Legal Foundations lawsuit challenging the constitutionality of their funding. We sort of won in that they could no longer claim every student at a university with a NYPIRG chapter as members. But they got to keep getting the money. I also remember when the College Republicans sponsored a talk by a Nicaraguan Contra. There were left-wing protesters outside that promised they wouldn't disrupt the talk. But as soon as the speaker started talking they started shouting him down. It was covered on the local news and the protesters did not come off well.

    I ended up choosing to go to Washington & Lee University for three reasons. It was the highest ranked school where I was accepted (19th by U.S. News & World Report). It was ranked 2nd in quality of life by the Princeton Review. Yale was ranked first and Harvard ranked last. Finally, also according to Princeton Review, it had the most politically conservative student body. I just thought it would be interesting to find out what that was like. What I found was that students could express controversial opinions without being attacked and not just conservative ones. There were liberal students who could express liberal opinions that could be discussed calmly and rationally. I definitely came away from college and law school believing that conservatives were more tolerant of diverse opinions than liberals. The Trump era has definitely disabused me of that belief.

    I joined the Federalist Society and ran for vice president, but lost. My consolation prize is they made me president. The guy who had been elected president had transferred to UVA and the guy that had been elected vice president didn't want to be president because he was also president of a Christian organization. He asked if I would like to be president and I said yes.

    We ended up bringing Clarence Thomas and Robert Bork to campus as speakers. Ken Starr had just been appointed Independent Counsel looking into Whitewater and I asked Judge Bork what he thought that would do to his chances of being on the Supreme Court someday. He said “I don't know what he was thinking! He'll never be on the Court now because he will either find something and the Democrats would never confirm him or he wouldn't and the Republicans wouldn't.” I also invited a lawyer from the Atlantic Legal Foundation to speak about Conservative Public Interest Law. I had worked there the previous summer and one of the cases I worked on involved the Waters of the United States. The case involved trying to turn some wetlands into a golf course. If that wasn't public interest law, I don't know what would be! Well actually it was only a driving range and we were negotiating with the Army Corps of Engineers to fill in some of the wetlands in exchange for creating new wetlands. I also did a lot of research into regulatory takings. I can't recall ever being at a golf course (other than mini golf that is). But that will change next month. I'm looking forward to Naples. I just hope it hasn't washed away.

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  9. Will Brisley

    Sarah, escheatment is pronounced “es-cheat-ment” not “es-sheet-ment”. The c is not silent!

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    DougAz

    My disagreement with you, Masterpiece and the Amicus brief is what I will call a flawed analysis or lacking, in the extrapolation of this "religious test".

    First, when you are in a business where everyone actually applies at least a nanoamount of creativity, your creative mind is essential to job performance. Especially engineering, designers, marketers and on.

    Secondly then, there is an ocean of difference between ART, Commercial ART. I know well, as my bride for 45 years has done both. Predominantly the former as a world shown textile artist. Industrial designers, cake makers, web designers, architects, and on, are in the Business of providing 8hr/day, 40+hrs a week their product to customers. That product uses their creativity. It's for sale as an article of Commerce. It is absolutely not Art as a conception made for no one but the pure expression of the artists mind. Different.

    Third. We must extrapolate all such rules and laws to see their fair and objective effects. Do we want to head here? Meaning:

    I refuse to provide my faux painting skills for interior households for blacks, because they are an anathema as are Jews, to my religion. (This is an argument example and of course I dont believe that's right..@readers).

    We could evolve to a world on main street of stark separation and bigotry based on this religious claim to Commercial services.

    A daily Commercial service business doesnt make ART.

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