A

Hey, everyone, it's Sarah Isger. Before we get into today's episode, I want to share part of a conversation that happened live at our term recap event. We're grateful to the ACLU for sponsoring the event and for this break, we're going to share a piece of it. SCOTUS blog executive editor Zach Shemtob sat down with ACLU National Legal director Cecilia Wong for a wide ranging discussion. It's the kind of conversation you don't get very often. Two people who think seriously about the law talk candidly in front of a room full of people who care as much as we do. I'm not going to spoil it. Just listen.

B

Let's now move to what many consider to be the biggest case of the term birthright citizenship. You argued that case before the Supreme Court. This was your second argument.

C

Only my second argument. The court, yeah.

B

Yes. Be totally honest with me. Scale of 1 to 10, 1 being, you know, you're getting coffee from Starbucks, not nervous at all. 10 being abject horror about before arguing before the court. How nervous were you going in there?

D

99.

C

It's like all the lawyers, I think in the crowd will understand this. It was the most high stakes and stressful task of my professional life because any case in the Supreme Court, any argument in the Supreme Court has enormous stakes and will have broad ramifications. But, but this case was one where millions of Americans had a cherished pillar of American life, birthright citizenship, being called into question by the President of the United States who was promulgating a theory of the 14th Amendment that only 15 years earlier was a fringe white nationalist project that would bubble up in state legislatures here and there and that were basically didn't go anywhere. And I myself am a 14th amendment citizen. My parents had not yet naturalized when I was born in Oregon. I can't tell you how many people said to me going into the argument in the months I was preparing for the argument, you know, we're all counting on you, you know, thank you. Thank you very much.

B

Very helpful.

C

But when the time came, and this is a part I think lawyers will, you know, understand, once you're there at the lectern, all of that falls away. And you are just talking to these nine people. I've had that experience in every argument I've ever done, Il Pellet argument I've ever done, in every trial I've ever had, you know, high stakes cross examinations. You know, you, you prepare and you prepare and you're nervous and you're stressed out and there's so many stakes for your clients and for other people who are interested in the outcome. And then it's showtime.

B

And also have to ask what was your reaction like when heard? For sure, it seemed that the president was going to attend oral arguments.

A

For more on the full conversation between Cecilia Wong and Zachary Shemtob, go find it at the YouTube link in the show notes. You won't want to miss the rest. Ready? I was born ready. Welcome to Advisory Opinions. I'm Sarah Isger, that's David French. And we're gonna do a little more Supreme Court stuff forward facing cert grants, the big ones to look at that we're gonna cover for oral arguments when we get back in October, in November, as well as a little more backward facing a dissent from a cert denial on defamation as well as some of the think pieces. I wanna get into them. There's gonna be more to come, but let's start digging into the other think pieces on the Supreme Court in particular, are any of the justices political? Even if we don't think the court as a whole is political? And lastly, the circuit decision heard round the world this week. Florida's Stop Woke act stopped in a 2 to 1 11th Circuit panel decision. David and I maybe don't see totally eye to eye on this one, but more important than all of our actual legal topics is the addition of another French.

D

Well, technically another Delosure. This is my, my oldest daughter has had her third child over the weekend. Rose. Little, sweet, sweet Rose Sarah. She's 36 hours, 40 hours by the time we record this old. And I can already tell this kid is awesome. This kid is amazing. She's so precious, she's so kind, she's so sweet.

A

Kind. Your 36 hour old granddaughter is not kind that I'm sure of at this point that she has not displayed any amount of kindness. Because David, as we all know, for the first two weeks they're not even like they're there yet. They haven't woken up yet. And I think it's going to be amazing. And I am rooting for you, Rose, to really prove your name wrong. I think this girl is going to be hell on wheels. And I can't wait for Rose to be the most ironic name given to a baby ever. And for us to look back on this podcast and your grandfather just saying how, how kind you are. I want you to throw punches, girl.

D

Every Rose has its thorn. I mean, according to Poison, right? I mean so yeah, absolutely. No, Rose is fantastic. She's healthy, mom is healthy and we are and two other grandchildren are ecstatic to meet little Rose.

A

Sarah.

D

I just can't even tell you how cute it was when they met her for the first time. Just their unbelievable joy. Like, they, they were just, it was bubbling out of them. It was so neat. It was so neat. But we're all very sleep deprived in the larger French Delosier household because we have been pouring all our energy and efforts into helping our kids with Rose. So if I say something less than exactly, perfectly right, this podcast, that's my excuse.

A

I will give Rose this. Her timing was impeccable because there was the chance that she was going to come for like the last day of the term and it was going to throw off our whole schedule. So Rose is my favorite of your grandchildren. Just so we're clear, like already.

D

So Rose was born on 711 and we were trying to do a sort of a family pool as to when exactly she would be born. And my pool was she was going to be born at 7:11am on 711 and weigh 7 pounds and 11 ounces and I missed it.

A

I don't know though, not bad. I was a 7 pound, 11 ounce baby, so.

D

Oh, really?

A

Yeah.

D

Well, fantastic.

A

I don't know why I know that. All right, David, let's do a podcast. Well, David, we have plenty of Supreme Court stuff to talk about, both some cleaning up left to do, but also some previewing to do. Let's start with the preview. Let's look forward for a change, and then we'll look back once again. So we have lots of cases already cert granted for the fall. Remember, the Supreme Court's very unlikely to add any more cases over the summer to the merits docket. But those cases are ready to go for the, you know, October and November argument sessions at least. And there's, you know, on the one hand, David, I think it's fair to call it a quiet term so far because we don't have those major separation of powers cases because they took care of all of the Donald Trump executive order type stuff and, you know, administrative agencies and all of that. We don't have any of that on the docket right now. But boy, if we were just judging it by culture war stuff, we've got plenty. So let's start with the most recent one that we haven't talked about, and that's the assault weapons ban case out of Illinois. Let me read to you here from the cert petition that was granted last term. This court denied Certiorari and Snope v. Brown, a case raising the constitutionality of Maryland's band on the AR15 platform rifle. In his statement respecting Denial, Justice Kavanaugh pointed out that there is a strong argument that AR15s are in common use by law abiding citizens and therefore are protected by the Second Amendment, and that it is analytically difficult to distinguish the AR15 from the handguns at issue in Heller. Justice Kavanaugh noted that there were several other cases pending in the courts of appeals raising the same issue, including this one, and stated that this Court should and presumably will address the AR15 issue soon in the next term or two. Well, here we are, David. It has been granted. Thoughts? Feelings? If politics is expectations and the Supreme Court is adjacent to maybe just part of politics, aren't the expectations here already set? So is this a big case?

D

Yeah, that is a really good question, Sarah. And I'm going to say no. Maybe yes. And here's the no. And then the maybe yes. So the no is this that this is a ban on assault weapons. It does not appear that they're also dealing with the ban on large capacity magazines. Okay, now that really matters. Okay, that really matters if you're thinking through the case. So this is what. This is how the cert petition characterizes it. Subject to a few minor exceptions, Cook county criminalizes the sale, transfer, possession of any assault weapon. Cook county identifies semiautomatic rifles as part of this category both by feature and by name. The lengthy list of over 100 specific rifles banned by name as well as quote, copies or duplicates thereof includes the popular AR15 and AK47 platforms. The features based band covers the same rifles in their standard configurations, banning any semi automatic rifle with the ability to accept a magazine holding more than 10 rounds of ammunition if it has one or more of the following features. And then it goes through features like a pistol grip, any feature capable of functioning as a protruding grip that can be held by the non trigger hand, a folding telescoping or thumb hole stock, a shroud attached to the barrels that kind of encircles it, allowing the bearer to hold the firearm with a non trigger hand without being burned, a muzzle brake or a muzzle compensator. And the ordinance also bans any conversion kit, part or combination of parts from which an assault weapon can be assembled. Now why does this matter so much that I highlight the gun, the rifle itself, and not the magazine? Because the reality is that an AR15 or an AK47 without a large capacity magazine is not that different from a standard deer rifle. In other words, now there are Deer rifles that are bolt action, meaning you've got to work, use the, you've got to work the bolt action every shot you fire. Or more commonly they're semi automatic that they will fire every single time you pull the trigger. This is a very common thing in like a deer rifle 3006 that people use for deer hunting. That's not necessarily banned by this. And so what is an AR15 without the magazine attached to it? Well, it's a semi automatic rifle that looks very deadly and scary, but it's just a semi automatic rifle. The thing that makes the AR15 so dangerous compared to say a normal deer rifle. With a normal deer rifle, you know, I don't know the exact number of, of rounds that are in a normal magazine for a deer rifle. What, five maybe? I'm sure it's been so long since I've fired a deer rifle that listeners will tell us, but without the magazine, the rifle isn't all that super dangerous. It's when you marry the semi automatic rifle with the 20 or 30 round magazine, in some configurations you can have even more that it becomes what you see like on television, what you hear about, you read about. Like when there is a mass shooting, it's the marriage of the semiautomatic rifle part with the magazine. So now if this case isn't also about the magazines, a ban on the magazines, what you're really looking at is just it's a semi automatic rifle that can, has the ability to accept the magazine. And I don't know, Sarah, I think that's a lot less interesting case because what is an AR15? What is it that makes it particularly dangerous? Now I know the statute says it's capable of accepting the magazine, but if you say have an AR15 rifle and only a five round magazine, that's not the thing that everybody's terrified of. So that's why I'm looking at this case and saying, okay, this isn't exactly the kind of case that's dealing with the rifle and the magazine. The combination that makes the AR15, you know, so both popular and notorious.

B

Yeah.

A

So just to do some terms here, semi automatic means that the gun itself automatically loads the next bullet into the chamber. But all of these guns are one trigger, one bullet comes out. And so in that sense, the vast majority of handguns are also semi automatic. We just don't call them semi automatic handguns very often. So handgun small barrel, usually semi automatic. Again, you can have the little twirly thing that you know, the bullets are in the circle, but Again, for the most part, a revolver.

D

Yeah, yeah, the twirly thing. Yes.

A

They are also semi automatic most of the time. And always one trigger pull, one bullet. Then you have sort of standard rifles that you mentioned. Again, you can have a bolt action where you have to pull back the thing to load the next bullet. That's more unusual because again, we have technology that automatically loads the next bullet. So they are also generally semi automatic. They have the long barrel that shoots out the gun. And then we have these guns that we're talking about, David, we'll call them the scary looking ones. I guess to Justice Kavanaugh's point about the similarities between the handgun at issue and Heller and a standard AR15 without the large capacity magazine, or let's just exclude all of the other little accessories for a second, the pistol grip, stuff like that. Is the AR15 more deadly in terms of how fast the bullet is traveling, the caliber of bullets it carries, perhaps, versus a semi automatic handgun?

D

Yeah. So an AR15 shoots a.223, which is a very small bullet. It's just barely above in size a.22 caliber like in the, the little guns that, you know, kids would often be their first gun that they would go plinking with shooting cans off of, you know, off of picnic tables, you know, that kind of thing. But the.22 is, is not a center fire. It's called a rimfire rifle. It has a lower propelled degree of, lower amount of, of gunpowder and it leaves the barrel at a much lower velocity. These higher center fire, they have more gunpowder, they have a, they're very high velocity. So 223 or 5.56 millimeter, which is the, the millimeter, they are very high velocity. They have a lot of range. They don't have a lot of stopping power necessarily, but they have a lot of range. And the difference between a 9 millimeter handgun, which is the standard handgun that people carry, is the 9 millimeter handgun has got a lot less range than the AR15. A lot less. And so while it may fire off as many rounds when you pull the Trigger as an AR15, it's a lot lower velocity, it's got a lot less range, it's got a whole lot less accuracy, which is why even in close quarters, you know, the M4, which is sort of the, it's the military version of an AR15 that has three round burst capacity, which is you pull the trigger and essentially a three round burst fully automatic. That's one of the differences between the military and the civilian. Even in close quarters, in the military, you're generally going to be using that rifle rather than your, your pistol. As one of the guys I served with in Iraq said when he was talking about a time when he pulled his pistol and he actually used his pistol in combat, he said, when you're pulling your pistol, it usually means something has really gone wrong. Otherwise you're not using that. That the rifle is clearly superior.

A

Okay, so it's not irrational to ban the assault weapons bans versus a handgun weapons bans. But under the Second Amendment, maybe those are not cognizable differences.

D

Yeah. You know, Sarah, this is where this gets really interesting because when. When we've been talking about text, history and tradition, which is the test, and we've been applying it to things like a ban on carrying a weapon or a ban on carrying a weapon or a ban on like say somebody with a domestic violence restraining order or like the Hawaii law where you're talking about sort of a default common law rule that says you can't have one on private property without the express permission of the property owner. All of those things mean that they're easier, I think, in my view, to apply history to because you're really talking about the circumstances in which you can carry a weapon. That's what that's about. That's been a perennial issue throughout the history of owning firearms. Where can you carry them, when can you carry them, who can carry them? This is what can you carry. And the quirk here is we're going to be watching text, history and tradition applied to a gun that did not exist at the founding. Now, do not come at me with, oh, but you're not aware of the, the Johnson783, the experimental fully automatic musket that somebody, you know, whatever, like some random thing that has been that was percolating that somebody had figured out to how to make that wasn't Anything like an AR15, but might have had, you know, proto early ancestral, like the bird that the velociraptor came from. The bird and the velociraptor are not the same thing, like going back to Jurassic Park. So we're talking about something that did not exist that we're going to do a text history and tradition analysis of. In all likelihood, Sarah, and we. That is going to be fun. So.

A

Well, I know we are expecting a lot of comments from gun owners, but let me just head off at the past, some of our comments from paleontologists. No, velociraptors did not come from birds. And by the way, neither did Birds come from velociraptors, actually different lineage, although birds did evolve from that era, including some things that might look like dinosaurs, not the velociraptor, but they did have feathers, so that's kind of cool. Those feathers were not for flying, though. Flying actually evolved from feathers, not the other way around. And we'll get lots of comments on all of that as well. Let's move on to some of the other.

D

Wait a minute. I saw a documentary called Jurassic Park.

A

I know you did.

D

And this was discussed at length, Sarah. So I'm not sure it was like

A

the premise for the whole thing. Right. The pelicans at the end. Exactly. RIP Sam Neill, by the way.

D

Oh, that's right. Oh my gosh, I cannot believe you're disrespecting Sam and Neal. That. That is right. But that was a very shocking. Gosh, that was a couple of shocking losses over the weekend. Lindsey Graham, Sam o'.

C

Neill.

D

Yeah, so incredibly sad.

A

All right, David, we've got several more grants to talk about. This one's a big one. Suncorp Energy versus County Commissioners of Boulder County. So here we have Boulder county suing under state common law theories of nuisance and trespass in conspiracy. By the way, energy companies like Exxon Mobil for climate change related injuries and the energy company defendants arguing actually this has been preempted by federal law. And David, are we going to get into some preemption law? Because in the past we've talked about whether something like Mississippi accepting mail in ballots is controlled by the federal statute that says, you know, quote unquote election Day. But this is going to be something we're talking about called field preemption. By virtue of Congress passing various pollution related laws like the Clean Air act and others, have they field preempted states from doing anything related to this, even if they haven't passed a specific law contradicting it? Field preemption? I don't know. It's kind of a fun text versus precedent thing going on here because. Right. If Congress didn't pass it in the text and say, and we are by virtue of this law preempting state laws that deal with pollution. What is field preemption? If it's not written in some law, it's a judicially made doctrine. And we have a few conservatives that are against judicially made doctrines. Then again, those conservative justices also are probably against states going hog wild here on trying to find common law lawsuits to bring against corporations.

D

Yeah, field preemption is very interesting. It, it strikes Me as something that is not unlike the was it Justice Stewart who said, you know it when you see it when it comes to what obscenity is. Yeah, that's how field preemption feels to me. There's a certain amount of congressional regulation that is so much regulation that it means that the state can't also regulate how much regulation is so much regulation that it can't regulate. Kind of in the eye of the beholder a bit. I mean, it's not entirely subjective. If there is very, very little wiggle room left in the statutory scheme, you know, then that's kind of broadcasting field preemption. But it is a very interesting doctrine that, as you said, is judge made, but it's certainly not without foundation. There have been area, there are areas of law that are very comprehensively regulated at the federal level. And I think the, you know, one of the big issues comes when there is state regulation that appears to contradict the purpose of the federal regulation in a comprehensively regulated field. And that's where this often comes up.

A

Okay, so they argue field preemption. They then argued sort of traditional displacement conflict with the Clean Air Act. But then this one's also kind of interesting, David. They argue federal foreign affairs power, that the federal government has exclusive authority over foreign affairs and therefore preempts Boulder's claims. And because those claims would impair the federal government's effective exercise of foreign policy and that climate change is a foreign policy issue. Interesting. Maybe a little afield. That one is going to be, David, I think, you know, we talk about the most important case that's not the most important headline culture war case. I don't think there's even something that could be percolating out there to overcome suncorp as the most important actual economic corporate business docket case. That one's going to be number one by a long shot. Coming up next term, some other ones, David, worth mentioning. We've talked about this one a little bit. Whether Title 9 provides employees of federally funded educational institutions a private right of action to sue for sex discrimination, or is it just there to protect students? A little boring. Title 9 is nice for a change compared to what we'll be getting. Here's another one. So we're back to Colorado's anti discrimination cases. By the way, this is about Colorado excluding Catholic preschools from their universal Prek program. And the way that the QP is presented, whether proving a lack of general applicability Under Employment Division vs. Smith requires showing unfettered discretion or categorical exemption for identical secular Conduct, David, in this case, right. It's like what is the comparator? They didn't just say, you know, no religious schools. This is about these pre Ks, you know, wanting Catholic students, teaching Catholic doctrine, et cetera. This is such a version of the cases that we've had up till now. It's really just like one tiny step for religious liberty. Not even a particularly large one. Again, compared to some of these other ones that we've had that I think have been much larger. But I have to say, if you're just going by expectations, you had me at Colorado's non discrimination laws. This is getting overturned. Yeah.

D

The fifth isn't the new ninth, Sarah. Colorado non discrimination law is the night. It is. Yeah. Yeah. Whatever got into water in Colorado and the weaponization of the non discrimination statute. Wow. Let me just say, if the supreme court came within a whisker of upholding a Catholic charter school in Oklahoma, where charter schools have traditionally been considered public schools, I'm not in love with Colorado's chances in this case.

A

No, we'll be talking a lot more about that case. Some other ones worth mentioning, David. This one. Oh, I read this one a few times. So in Washington state, David, when a minor runs away from home, the question here is can the state without the parents knowledge or permission, to allow that runaway to get medical treatment for gender dysphoria? Now, what's sort of interesting about this is all the facts are not agreed to by the parties. Both of them have very different versions of what this law actually does in practice. And so while again, this may seem like kind of an easy parental rights case because you have more justices than not who are pro parental rights.

D

Right.

A

The facts here get weird. How this law actually get like works gets weird. I guess I'm a little surprised that they took this one. So definitely more to come on this

D

without the facts agreed upon. I mean, if you're talking about there's still disputes as to material fact. That does make it an interesting cert grant.

A

Yeah. The petitions are not in agreement here. Okay, then we have Republican National Committee versus Me Familia vota. Whether the National Voter Registration act or a federal consent degree prohibits Arizona from requiring voter registration applicants to produce satisfactory evidence of US Citizenship when registering with a state registration form. We've seen this before, David, when it came up on the emergency docket. Arizona, new voter laws. Again, we've seen versions of this in other states. This one will be a headline generating case. Whether it's actually an important legal case or not. I'm less certain. And lastly, we talked about this out of Florida, whether you have a 6th and 14th amendment right to a trial by a 12 person jury when you are charged with a serious felony. This is all, you know, incorporation and what exactly is a jury? Fun stuff.

D

That one is interesting to me. This is one of the few that I'm going to walk in, Sarah, pretty stumped. I'm going to be on a big learning curve on this one.

A

All right, David, when we get back from this break, I want to talk, want to look back a little bit. We've got a few pickups we need to do that we didn't get to cover at the time, including actual malice and Alan Dershowitz defamation law, as well as some of these think pieces that folks have been writing. In particular, I want to quote you something from Ellie Honig's piece and I don't know, see what we feel about it. We'll be right back. Hey everyone, it's Sarah Isger. We just had our term recap event and we are so grateful to the ACLU for sponsoring this event. For this break, we're going to share a clip between SCOTUS blog executive editor Zach Shemtaub and ACLU national Legal Director Cecilia Wong. They get into something genuinely fascinating, how the ACLU is leaning into originalist and textureless arguments in front of this court. Here's a piece of it.

C

This was a case where Trump came into office saying, I'm going after the worst, the worst. I'm going after criminal aliens, so called criminal aliens. And yet here he is going after people who are lawfully here in the United States under the auspices of a congressional program for the temporary protection of people who cannot be returned to their home countries safely. And what that meant for not just immigrants in this country, but so many Americans, is that none of us are safe from this president. And so we come out of this loss in the TPS case with really renewed energy to pursue legislative reforms and to not just to shore up temporary protected status and other forms of lawful immigration status, but really to put our foot down and say your immigration policies are abusive. They don't comport with American values. And so the moral of the story here with the TPS cases, with all of our losses, really, is that the Supreme Court is not going to have the final word on these issues. We just keep fighting. And despite the losses at the Supreme Court, you know, we keep prevailing in lower courts. We can go to Congress, we can go to state legislatures and our local government elected officials to really build the country that we want to be.

B

And when you argue these cases before the court, when you have or other folks, do you find yourself, I guess, slipping into originalist or textualist mode in a way that you might not have in previous courts? And if yes, for all I know, you may be a textualist and originalist. So I don't want to stereotype about the ACLU's views. But, you know, assuming that may not be your go to, what is that like to kind of talk that language?

C

Well, it is our go to now because you have a majority of this court that is very interested in this particular mode of interpretation. And so of course, in Himani, in Barbara, our arguments were based on original public meaning. We start with the plain text always. I think we're good lawyers. I hope we're good lawyers. And so of course any lawyer with their assault is going to use the modes of analysis and interpretation that are calculated to win cases. During one of my seven moots for birthright, one of my mooters who is conservative said, wait a minute, this is really weird. The ACLU is arguing original public meaning and the Trump administration's arguing policy. Something's wrong here.

A

That was Cecilia Wong, ACLU national legal director, talking with SCOTUS Blog's Zachary Shemtaub. Go listen to the entire episode at the YouTube link in the show. Notes A good night's sleep is an essential part of my job, and that's where the Sedona elite from Brooklyn Bedding comes in. I feel supported, comfortable and fully relaxed, which helps with falling asleep faster and waking up feeling genuinely restored. Brooklyn Bedding makes quality mattresses right in their Arizona factory. Combining American craftsmanship with honest pricing and thoughtful design options for every sleep style, cooling technology for hot sleepers, trusted support for spinal alignment and a 120 night comfort trial. They make it simple to find a mattress that truly fits the way you sleep. So go to BrooklynBedding.com and use my promo code advisory at checkout to get 30% off site wide during the summer sale. That's BrooklynBedding.com promo code advisory for 30% off site wide. Exclusive with my code BrooklynBedding.com promo Code Advisory. All right, David, this one maybe isn't a surprise. We've talked about defamation and that if you are a public figure, you have to prove actual malice, that the person who wrote the thing basically knew that they were lying about you and caused harm. Here is the dissent from denial in Alan Dershowitz vs. Cable News Network, also known as CNN. For those who haven't heard the acronym spelled out in a while, Alan Dershowitz sued respondent, a major news network, alleging that it defamed him. Because Dershowitz is a public person, our precedents require him to prove not only the elements of common law defamation, but also that the network acted with actual malice. Predictably, Dershowitz did not prevail under that exacting standard which this court created in 1964. Dershowitz now asked this court to overrule that case. Sullivan and related precedents. The actual malice standard for public figures bears no relation to the text, history, or structure of the Constitution. Instead, the founding generation believed that, if anything, public figures had stronger claims for damages when they were defamed. I and others have thus called for reconsideration of the actual malice standard for public figures. I would have granted certiorari to do so in this case. David. That was a dissent from denial written by Justice Thomas and joined by Justice Gorsuch. And so when Justice Thomas writes that I and others have called for this, he is citing Justice Gorsuch in a different dissent from denial. We have only had two justices that are interested in this, and I guess in the year our Lord 2026, I am surprised that we don't have four justices to revisit this.

D

I am, yes, I am a little surprised now. I do. Like we're. Now I. Can we say it's text, history and structure now. Is that what it is?

A

It's text, history. And each justice has a different one, including. I mean, that was Justice Thomas. Right. He's changing his own test. Depend. It's very. It's, you know, it's a grab bag for that third one.

D

Yeah. I mean, with this and a couple of circuit court cases we're going to talk about really are areas in which the Supreme Court could provide. We're talking about areas where the Supreme Court has been either expected to weigh in or people have hoped that it would weigh in. Now, on the New York Times versus Sullivan, this is a relatively new thing. This is relatively new to really have a press. And it's mainly coming from the right to get rid of the actual malice standard to make it easier for public figures to sue. Say, you know, it was New York Times versus Sullivan to sue the New York Times or the Washington Post or advisory opinions or the Dispatch over defamation. And I don't think there's any question that New York Times v. Sullivan is, you know, it's a judge made standard to me. The interesting question is, is there going to be any sort of reevaluation of the way in which we've been doing First Amendment case law for some time now. Where we are we going to bring replace tiers of scrutiny? Are we going to bring in text, history and structure into the First Amendment? And is New York Times v. Sullivan going to be or challenging New York Times v. Sullivan going to be the vehicle for that? But, Sarah, I have, and we're going to get to this a little bit in when we talk about the Stop Woke act in Florida here in a minute. But there's an interesting question about what should First Amendment doctrine be around freedom of the press? Because there is freedom of the press in the First Amendment and there's freedom of speech. And so you have two different things. How is freedom of the press distinctive from your general freedom of speech?

A

And don't forget, by the way, in that stolen valor case, it's not just freedom of speech. We have a case on point that there's freedom to lie.

D

Right.

A

The stolen valor case was someone lying about receiving a medal, which violated a congressional statute that, you know, criminalized lying about receiving military honors. And the Supreme Court struck down that statute saying, like, no, there's a freedom of speech even to lie. And so how does that run into defaming someone? And what about in our modern era where, like, everyone's a public figure? You're online, you said something on Twitter. Are you a limited public figure for the purposes of that Twitter comment, for instance? I mean, at some point the whole thing has fallen apart. This started with what was supposed to be government figures. I actually can, can accept that, that there maybe needs to be a higher standard to talk about government figures because we don't want to chill speech that's critical of government figures. But then it got extended to celebrities, and I don't know what they did that like the First Amendment would protect them less against defamation, for instance. And then now with social media, like, we're off to the races, everyone's a public figure. And I, I think this is a big problem. I'm not saying that I'm 100% for blowing up Sullivan and all of its applications, but I am 100% for the Supreme Court taking a case on this. It ain't 1964 anymore.

D

Yeah. One of the things that I think is interesting is that while New York Times v. Sullivan, for a long time, Sarah, it was very rare to see anyone win a defamation case. Very rare if they were a public figure. It seems to have gotten less rare that, you know, if you go back to the Fox News lawsuit, you know, the Dominion and the Smartmatic lawsuits. You've seen lawsuits against Rudy Giuliani, you've seen lawsuits against Alex Jones, you've seen lawsuits against Donald Trump, and you've seen a lot of them be quite successful. So the actual malice standards seems to have already migrated from something not unlike strict scrutiny, like, oh, good luck. Good luck. If you're a plaintiff to now, no, there's a body of case law that really does show what kind of. Because remember, actual malice isn't actual malice. It can also include recklessness. And so. And so there is a body of case law now that shows a path to winning these cases. And I actually wonder if what you're getting, in a weird way, is a kind of soft reversal of New York Times or a soft degrading of New York Times v. Sullivan to the point where there's so many successful cases that as a practical matter, sort of in the real world, the justices don't see a need to revisit because the.

A

It's percolating below.

D

Yeah, it's percolating below. And it's quite clear that you can meet the actual malice standard. And lots of people are doing it.

A

And David, it's kind of remarkable how quickly this has all happened. Remember, in March of 2016, my picture is on the COVID of the National Enquirer as one of Ted Cruz's mistresses. Other outlets then republish that, not, as, you know, allegedly, but as definitely true. And there was very little hope of me winning a defamation case because I was a public figure, but I wasn't for, like, those purposes. I was not a public official. I wasn't running for office. I was picked pretty randomly to be one of Ted Cruz's mistresses because I satisfied the public figure standard, I believe, and because they picked, you know, Amanda Carpenter as well, Katrina Pearson, all people who would meet a legal definition of public figures, even though, again, for the purposes of this conversation, like, no, I wasn't. You know, I did, like, cable news hits sometimes. Give me a break. I worked on presidential campaigns that made me a public figure, but there was no hope of really winning that at trial because of New York Times v. Sullivan. And now I think I could bring that case and have a pretty good shot, actually, to your point, on the degradation of New York Times v. Sullivan in just a decade.

D

Oh, I totally think in the year of our Lord 2026, the National Enquirer either would not run it or if it did, it would get out its checkbook. And, and now, and this has Happened so much, Sarah, that, you know, we've had a number of slanderous things. This might surprise you, but not everything said about me online is true.

A

Yes.

D

Yeah, not everything. And some of it is very definitely actionable. I mean, like, so definitely actionable that if it. If I didn't think, for example, the defendant was judgment proof, in other words, there'd be no way to collect money, really. And some of these folks, that's their dream. They want you to sue them, they want you to lash out because they want to be elevated, they want to try to be annoying, whatever. There's a weird way in which some people actually seem to court these lawsuits, but it's absolutely the case that 10 years from now, I look at the actual malice standard differently than I did 10 years before. But I'm actually with you, Sarah. I'm with you. I'm interested that there are only two justices so far who seem like they're willing to wanting to do this.

A

All right, David, let's move to some of these think pieces in the Wall Street Journal. Samuel Alito, a MAGA friendly justice with a new conservative legal vision. They had some interesting statistics here. In a hundred cases over the past decade involving a major Trump administration policy position or in which Trump himself was a party, Alito's votes aligned with Trump 89% of the time, the highest rate of any justice, according to the Wall Street Journal's analysis. When the sample is expanded to include all cases in which the first or second Trump administrations presented arguments, a universe of more than 300 argued cases and emergency appeals. Alito sided with Trump 79% of the time, also the highest rate on the court. And David, this is sort of interesting because I'm not totally sure I understand the universe of cases. The solicitor, that. That would be the first administration. So that's four years, four terms, and then one year of the second administration. Maybe we can count a half. I'll. I'll be super generous. Six terms of the Supreme Court. The Solicitor General's office has not been involved in 50 cases a term. That would be really weird to me. There's only like 60 cases a term. There's. It's not 50. So I don't know where they're getting the 300. I've reached out for clarification on that. I'm sure they have a definition that will make some sense to me, but I just want to flag at the top here that, like, something's a little bit weird about that. But if you look at the 300 cases which I think has a better definition that's more objective. Right. It's all cases that the administration presented arguments. And then weirdly, it says alito is at 79%, but the actual graphic says 78%. So I'm not, not sure what's right there, but. Okay, let's. I'll go with the graphics. I'm reading it for the rest of the justices. So Alito is at 78%, down to John Roberts at 66%, and then Elena Kagan is at 46%, down to Justice Jackson at 35%. So a definite distinction in the Republican appointed justices versus the Democratic appointed justices. But maybe not huge. Like sort of the degrees go down in kind of known increments, if you will. But this brought me to Ellie Honig's piece that I was just so into. So it's titled, Is the Supreme Court political? Depends on which justice you mean. And here's a part at the end that I wanted us to talk about. And that's why I read the Alito thing at the beginning. Five of the nine justices have become imminently predictable based on policy outcomes, whatever the law may say. Justice Clarence Thomas and Alito voted for Trump and conservative results in essentially every major case without fail. And at times, they contorted the law to get there. The same goes the opposite way for the three liberals. Neither Justices Sotomayor, Kagan, or Jackson cast a single vote for Trump or a conservative outcome in any case with broad policy implications, with the lone arguable exception of a decision permitting states to ban transgender athletes from women's sports, which saw the liberal justices partially concurring and partially dissenting. Given that their respective ideological preferences aligned nearly perfectly with their purport purported legal analysis, it's fair to label these five justices political. Can either side be right that Trump was legally correct on either everything or nothing? And David, we've gotten versions of this question from a lot of listeners. It's like, okay, okay, you guys are focusing on, you know, the Gorsuch and Kavanaugh split on Justice Barrett and the chief, you know, being the deciders. But what about these other justices? And in particular, we get a lot of emails about the three liberal justices being super predictable and switching their votes from when Biden is president and you have student loan debt forgiveness, clean power plan eviction moratorium to then Trump is president and you have federalizing the National Guard, tariffs, birthright citizenship, and they just switch sides. And it like, what is the legal through line other than different president, different policy outcomes? So the question for You, David, is, is Ellie Honig right that five of the justices are political? And is this what Professor Akilah Mar was getting at in our term recap that there's like, you know, the wisdom in crowds. It's fine if five are political because four aren't and it tends to make these good outcomes regardless.

D

That is such an interesting question. And it's, it's interesting on two counts. One just sort of the empirical numbers are very interesting. But also it's interesting because it's one of those classic questions that's not really answerable.

A

Correct.

D

Because you, you can, you can argue it until you're blue in the face either way. And there's no way to actually objectively decide it. Is it political for say, a Justice Kagan to support Biden win their student loans and not support Trump on tariffs? But wait a minute. There was a precedent set in student loans. So now does that mean that she's upholding star decisis? And so then the conservative justices are being consistent. She's being consistent because she has been one of the most stalwart supporters of starry decisis on the court. Like we could do this all day. Sarah, could I give you my. This and $2 will buy you not a cup of coffee.

A

Yeah.

D

Okay. That I think the judges are human and some justices are more susceptible than others to the push or pull of their underlying sort of policy inclination. And that whether this is something conscious or unconscious, I think that we all have it, every one of us, and we are able to resist it to varying degrees of success as far as how much of is our analysis weighted by our desired outcome. And I, I think that's an inescapable reality of human life. You are not dealing with Judge Tron 9000, you know, a something even more objective than an AI because we all know AIs go a little crazy. They hallucinate a non hallucinating AI and I do think at the edges it becomes maybe more the eyebrows raised. The eyebrows raised more at the edge cases. And you know, so Justice Jackson, Justice Alito on are kind of on each side. Justice Jackson is perhaps even the most pronounced, more pronounced than any of the other justices. And those are the ones where I raise the eyebrow. I do think it is fair to say of say, Justice. Justice Alito and Thomas, the way I would put it is they seem more hospitable towards populous slash MAGA legal arguments that in that I'm not going to say they're new legal arguments, but they're sort of new to our generation. In other words, they're, they're not what a conservative originalism would have sanctioned 10 years ago, but they're very much a part of the conservative legal movement now. And I feel like Justices Alito and Thomas are more hospitable to these kind of ideas that have been bubbling up more from the populist. Right. That or the, you know, the quote, unquote, America first. Right. Than we've seen from other justices. So I would say that yes, it's absolutely the case that a couple of the justices are more hospitable is also the case that Justice Jackson and to a lesser degree, but a still impressive degree, the three liberal justices are not hospitable to what's coming out from the Trump administration.

A

What's also a little bit funny about the Wall Street Journal story is it starts with that line from Lisa Blatt. I'm just trying to get Justice Alito's vote. Veteran litigator Lisa Blatt said as she was being peppered with technical questions about plea bargains. Both Blatt and her intended target were in on the irony. Very few advocates have that goal. Samuel Alito, deadpan, drawing laughter in the courtroom. Alito was acknowledging what everyone around the Supreme Court already knows. His vote is rarely up for grabs. And of course, what's funny about that, David, is that, as it turned out, was an 8:1 decision where justice Alito was with Kagan, Sotomayor and Jackson, and in fact, Justice Thomas filed a dissenting opinion about plea bargaining. Anyway, that is so.

D

That's amazing. I love it.

A

Feels a little bit weird to open with that anecdote.

D

Yep. But I do really, I found I first, I really enjoyed our live podcast, our charm review podcast, the the SCOTUS blog event. That was a lot of fun. Loved the panel and I've got to say I loved Professor Amar's formulation of the court as a wisdom of the crowds, the court as an entity, as opposed to just sort of viewing it as the court as nine distinct humans. It is an entity as well. It's an entity that a majority picks up one from here and one from there, but has directionally been maybe more, much more correct than not correct. I found that to be a really interesting and helpful analysis that I think reflects reality, that there is also institutional character, there's collective character and individual character. They both exist side by side.

A

Yeah, David, I guess for me, the question I didn't get to ask to David Latt and Professor Amar was about the evolution from a 5, 4 court, or I think more accurately a 4, 1, 4 court, whether it was Justice O' Connor in the middle or Justice Kennedy in the middle, like most Americans at this point, spent their lifetimes with that lineup at the court. And so you really did go into oral argument arguing to Justice Kennedy. And like a Kennedy clerk was the most valuable clerk you could hire because they spoke fluent AMK. But now, whether again, whether it's a 3, 3, 3 chord or a 2, 4, 3 court or whatever number you want to call it, having a lot of Justices up for grabs in the middle makes it more like a three body problem. Nobody is walking into oral argument these days with only one justice in mind. I think at minimum they're walking in with two to three Justices at mind and sometimes four or five as their potential fifth vote, which I again think this is good for the institution. I'm curious what David Latt and Professor Amar would have said about that. But I think they agree as well that a court that isn't easily pinned downable on one person's vote is a less politically lightning rod of a court. Like imagine if we had a single Justice Kennedy right now, we would still have all these hot button cases, we would still still have executive orders and presidential power stuff, but now it all be over one person's vote. I think that would be more dangerous for the court. I think it would make it look more political, in fact. And again, you go back to read those memos that the New York Times published about the so called birth of the emergency docket. I think that's been pretty debunked at this point. But the memos are fascinating. Long memo from the Chief justice, long memo from Justice Alito and Justice Breyer, et cetera, et cetera. And then two sentence memo from Justice Kennedy at the end where he's like, thank you for all your wise counsel. Here's how I'm gonna vote. It's like they were clerking for him. It was like you have clerk memos and then you have justice memos. And then at the top of the pyramid is Justice Kennedy alone being the justice of the Supreme Court.

D

Here's an interesting dynamic. We've never talked about this, Sarah. Why did none of the other eight Justices start swinging themselves just to sort of break up the dynamic a bit? Because it felt to me like a very unhealthy dynamic, just very unhealthy to have one justice exerting so much influence and control. And you know, maybe it speaks well of the other eight. They had their legal philosophy and they were sticking to it, by golly. And but you know, I, I would say the last time that I could look at a case and I could say, oh, they're aiming at one justice was Bostock when they were aiming at Gorsuch. But that's because it was a different court then. Justice Ginsburg was still on the court and they needed one swing justice and they identified Gorsuch as the swing there. Turns out they got Gorsuch and Roberts. But very interesting that to me in that historical time period that the court just went ahead, it was o' Connor for was sort of the swing for a while. Then it was Kennedy for a brief time. Felt like Roberts might be in that role no longer.

A

Well, if there's two quotes from these think pieces that I'm going to carry with me, it is first, the Ellie Honig quote. Can either side be right that Donald Trump was legally correct on either everything or nothing? Carrying that one with me. And then from former D.C. circuit Judge Thomas Griffin, majorities do not last, and presidents leave office when the tables turn, as they always do. The same citizens now demanding a judge loyal to a party or president will be grateful for an impartial one bound by the law rather than political pressure. That was in his piece in defense of Justice Barrett. All right, David, when we get back, we have a couple circuit cases, but you know what? I think we've only got time for one and I'm picking the WOKE Act.

D

All right, let's do it.

A

All right, David, we're tabling this Alaska Airlines religious discrimination case. It's a good one, but I think it can wait. Compared to the 2:1 decision out of the 11th Circuit about Florida's Stop Woke act, aka the Stop Wrongs to Our kids and employees. I think this made a lot of news, but it's worth just going over quickly again what it stands for. Basically, the provision at issue here disallows any training or instruction that espouses, promotes, advances, inculcates or compels students at Florida's public colleges and universities to believe any of eight concepts relating to topics like race and sex. I'll give you a few examples. One, members of one race, color, national origin or sex are morally superior to members of another race, color, national origin or sex. A person by virtue of his or her race, color, national origin or sex is inherently racist, sexist or oppressive, whether consciously or unconsciously. Three, A person's moral character or status as either privileged or oppressed is necessarily determined by his or her race, color, national origin or sex. I think you get the idea. So this was two. One with friend of the pod and very well known Circuit Judge Britt Grant writing the majority opinion against another conservative judge, Judge Barbara Lagoa, writing the dissent. People have compared this majority opinion to Judge Sutton's majority opinion upholding Obamacare back in the day when he was considered a frontrunner for the next Supreme Court opening. And everyone was like, well, that shut that door in his own face. And that this takes Judge Grant out of contention for a Supreme Court opening by striking down Florida's Stop Woke Act. I just like, I guess as a side note, a. You never know in life.

D

Yeah.

A

I have generally, I think, explained that I lived my life not trying to think about what implications something may have down the line because you just don't know where things are going. So better to make just the right decision for the right reasons in the moment. And, and the chips will fall where they may. Sometimes you'll be surprised, sometimes you won't be surprised, and that's okay, too. But David, if you talk to a lot of these circuit judges, and I don't think they're lying about this because it's just, it, it is, it makes sense, the likelihood of getting on the Supreme Court is so low, you have to have the timing of the opening that you're the right age when that timing happens, that the president happens to know who you are, higher staff who likes you. You know, maybe you have a clerk that's well placed. It's like lightning strike after lightning strike after lightning strike. So I don't know many circuit judges who live their lives thinking, well, I'd better keep everything going so I can be eligible for a Supreme Court opening that may or may not open when I'm in the age window to begin with. So just putting that aside for a moment, let's jump to the legal analysis. I actually found this to be a pretty hard case. David, I'll read you some parts here from the majority. For its part, Florida seeks to evade any First Amendment limitations at all by rigging together several speech doctrines to create a new rule that would quietly remove all free speech protections from the classroom. Because the government pays the professor's salaries, Florida says their speech is the state speech. Or because these professors were hired by and are paid by the government, everything they say in their classroom is, is really the government speaking emphatically no. The Florida defendants cannot put together half a donkey and half a camel and then ride to victory on the synthetic hybrid. This is not to say that universities and even sometimes State governments cannot exercise ordinary employee management, make ordinary curriculum decisions like which majors or courses to offer or otherwise ensure competent academic instruction. But there is nothing ordinary about the authority Florida seeks here. The level of control that Florida demands total would be inconsistent not only with our nation's traditional constitutional protections for academic freedom, but also with the doctrines Florida cobbles together to support its suppression of disfavored viewpoints. And she makes sort of four points in this, David. One, these are not managerial concerns. This is not about the efficient running of a classroom. Two, professors aren't civil servants implementing a government policy like in Garcetti or some of these other government employee speech cases. Three, the state was not acting in a traditional employer role. This was the legislature, not the state university board or you know, the dean or something like that. Four, this was not like again in these other speech cases, sort of a post hock single employee did a thing and now we're figuring out what to do about it. This is an ex anti chilling law. And so she notes those as four distinctions from some of these other cases. But this one, David, is the one that got me. Time and again the Supreme Court has made clear that, quote, teachers do not shed their constitutional rights to freedom of speech or expression at the schoolhouse gate, end quote. That would be Kennedy v. Bremerton, the case about the coach praying at the 50 yard line after football games, quoting Tinker v. Des Moines. The essentiality of freedom in the community of American universities is almost self evident. To impose any straitjacket upon the intellectual leaders in our colleges and universities would imperil the future of our nation. That's quoting from a 1957 Supreme Court case. Then she quotes circuit cases. These cases show that even when reserving space for academic freedom, university administrators and perhaps other government officials too, have a legitimate interest in ensuring that a professor's in class speech is both germane to the curriculum and professionally competent, but does not stretch into these ex ante type broad speech laws against disfavored speech. Okay, David, when I said that I thought this was actually a hard case, you winced as if I had kicked you in the shin during the World Cup. I know you don't think this is a hard case, but I think the line between sort of Germanness, curriculum and professional competence is a hard line to draw. I, I think I'm just anticipating all your arguments before you make them. I think you're going to say, yeah, but the STO Stop Woke act isn't particularly close to those. Maybe, but I don't know. I think states Ability to set what is and isn't going to be taught in the university setting isn't crazy, even if I don't like this law at all.

D

So a couple of things. The only thing that I think makes this a hard case is the Garcetti precedent, okay? And so if you're going to go back and you're going to look at traditional First Amendment jurisprudence around public employment, say the Pickering analysis, when you're talking about a matter of public concern, then there's a balancing test, et cetera, et cetera. If I'm litigating this case under Pickering, which is where I litigated professor speech cases before, then Florida, Florida loses. Florida loses, man. And, and just one thing to say about the, the actual elements. A lot of people will say to you. All this does is codify stuff that would be unlawful under Title 6 anyway, or Title 9 anyway, that these are discriminatory ideas that would be discriminatory harassment if articulated. No, no, no, no, no. Now, there are circumstances in which, if similar sentiments were repeated in ways where the speech was unhelp, where the expression was unwelcome and so hostile and pervasive as to essentially deny the person the benefit of the educational opportunity, that's what har. That's what racial harassment is under Title six. It is not. You heard something you don't like on. That's regarding race. That is not the standard, okay? So all of this speech is constitutionally protected. Now, there are certain circumstances in which, with additional factors, this kind of speech could be harassing or unlawful. But all by itself, all on its own, it is constitutionally protected speech under the Pickering test. Nine times out of 10, no, 99 times out of a hundred, if you are challenging this, you're going to to win. Now, what makes it hard is that Pickering isn't the last word on employee speech anymore. It's Garcetti versus Sabalis, which we have talked about. This is one of those cases I hate. And it is. It is the case that essentially says if you're an on the job, if you are a public employee and you're on the job, you're on the job. Speech is the government speech. It's not your speech. It is not protected at all. And then what they did in Garcetti, though, was to say when it comes to teaching and scholarship were reserving judgment. Not that they decided that it doesn't apply to teaching and scholarship, nor did they decide that it does apply to teaching and scholarship. Instead, they said, we're not dealing with that. And so what's happened ever since Garcetti has been a host of cases of which one of them I've had one of them where court of appeals decide that Garcetti does not apply. And what you're going to do is something more like the Pickering test. Now, the Supreme Court has not yet stepped in and say, okay, upon review, we're going to settle this and say that Garcetti does or does not apply to teaching and scholarship. That's the question mark that's hanging out. Most circuits have said, Garcia, especially at the university level, Garcetti does not apply. That if you're going to say that university professor speech is nothing but government speech, then you're choking out anything that looks like First Amendment protection, academic freedom. Now, at the same time, however, Sarah, and this is something that I just taught a class on academic freedom at Vanderbilt Law School last year, is what's so interesting and frustrating about Supreme Court rhetoric around academic freedom is they wax eloquent about the importance of liberty in the community of scholars. And we have case after case where the Supreme Court, especially going back to the Red scare and the McCarthy era and all of that, saying the community of scholars must be free. This is just re. You know, this is. But it's all dicta. It's all dicta. So what they end up doing is then just kind of applying standard First Amendment analysis. So if you're going to do a class sort of on academic freedom, one of the things you sort of have to say is what I'm calling academic freedom. The Supreme Court is just calling First Amendment jurisprudence at a university. And what this concept of academic freedom is, a separate and distinct legal concept, really tends to be more a matter of contract, where universities on their own grant an enormous amount of liberty to professors. But my basic view, Sarah, is that the Supreme Court, all of that rhetoric, that academic freedom is indispensable, I mean, even to the point where it says our culture will stagnate and die without it. Well, guys, well, say it clearly post Garcetti, because right now, if I'm a circuit judge, yeah. I'm looking at other circuits that have said that Garcetti does not apply to professors in the classroom or professors who are doing their research and scholarship, but their peers, they're not the Supreme Court. And so we're this is one of those cases where I think the case absolutely came out correctly. And I want the Supreme Court to grant cert and fix this Garcetti situation. I have no expectation they're going to overrule Garcetti, but have every expectation, unless they want to turn their back on decade after decade after decade. This is one of the. By the way, one of the most free speech courts we've ever had and one of the most free speech courts we ever had. Turning their back on a generations of expression from the Court about the vitality and the importance of freedom in the academic community to uphold a state speech code that prohibits constitutionally protected speech in teaching. Yikes. That would be an earthquake. Earthquake for the American academic community. And honestly, Sarah, it's hard for me to see the court being the San Andreas fault of America, of the American public university system. Because if academic freedom is gone, if you. If professors are just mouthpieces for state legislatures, I mean, you're talking about wrecking balls being taken to some of the most important institutions, not just in America, but the world. But the world when it comes to the ability to engage in free inquiry. And I. Yikes. I. I don't see the Supreme Court doing it. But I want them to close this Garcetti loophole or answer it. Give us clarity on this point. Because as much as I disagree with the dissent with Garcetti floating around out there with it unanswered about teaching and scholarship, you know, we need clarity on this.

A

Okay, so a professor proposes a course called Interracial Marriage, Colon Integration or Problematic. Can the school say, no, you're not teaching that course this semester? Because. Not because of, you know, workload. Like, because we don't like the topic of that course.

D

Well, I think it depends on a lot of different circumstances. If it's a biology professor. Yeah, they could say, no, it's in

A

the history department or poli sci or

D

like, whatever the Race, gender, and politics.

A

That's right.

D

Yeah, whatever.

A

It's in the right department. They just say, nope, we're not teaching that class. Too controversial.

D

No, I don't think they could do that.

A

Okay, so I don't think they could do that.

D

Now, I do think that Title 6 still applies. And so if they engage in conduct under Title 6, then.

A

Yeah, but that's like direct harassment. Like, a specific student has to be denied their educational opportunity because of speech, which is pretty hard to do unless it's directed at that student.

D

It's hard. Yeah, because we protect speech.

A

Okay, so we can have a class that's called this Racial Group is Dumber or Smarter than All the Other Racial Groups Come Discuss Seminar. It's in the correct department. They can't ban that.

D

Oh, I think that if the curriculum is Telling a black student that's in there that you're inferior day after day after day.

A

No, they're just. We're gonna go through the different. We're gonna discuss it. We're not, like, saying that. Yeah, for my purposes, say that like, it's not going to violate Title 6.

D

It's constitutionally protected speech.

A

But, like, your version, I think, feels even more extreme that the school doesn't really have say over even teaching courses.

D

Well, I think the school. So when I teach, I. So I teach. You've taught. And so one of the questions is, okay, there you have required classes and, you know, a required gen Ed curriculum. And then. Then they will often say, so, for example, Lipscomb gives me an awful lot of academic freedom to design my own course. And so I have designed a very fun law of workhorse for this next semester. If any of you students are listening to it, you're going to enjoy this class. You're going to find this interesting. But I. I do think that if you are granting professors the academic freedom to design their own course, you can impose requirements of academic rigor in the curriculum itself. But to sit there and to say that you cannot teach from a certain constitutionally protected perspective in a way that doesn't violate Title 6, I'm just not willing to go there, Sarah. I'm just not willing to go there. There are a lot of controversial classes taught in college.

A

In the physics class, the seminar the Earth is Flat. They can't stop you from teaching that.

D

They can absolutely stop you from teaching that because of academic rigor.

A

We're just going to discuss all the people who thought the earth was flat. And, you know, we can open it up to why you may think they were wrong, but, like, lots of smart people thought the earth was flat, and we're going to go study them.

D

Yeah, if you're talking about, if you like, you have a math class, and it is calculus 101. And they don't teach. Like, the calculus they teach isn't calculus. That's very different from teaching a class that essentially says, you know, as a result of centuries of oppression and hierarchy, people of a certain race are born with a greater sense of power and privilege than people who are in a different race.

A

Let's assume that every professor in this department wants to teach, you know, their interracial marriage is bad course, but nobody's willing to teach History 101, or everyone's teaching the Holocaust. Didn't happen. Like, there's just everyone in the history department wants to teach that Seminar. You obviously think that the history department can say, we're only going to have one of those courses and we will have a professor teach the Holocaust. Did happen. Who wants to raise their hand for that one?

D

Look at it this way, Sarah. You have three layers of academic freedom. You have institutional academic freedom where the institution has its own authority to sort of say, we are going to create the premier, premier military history department in America. Okay? And so what we are going to look for is military historians and somebody applies. Who is a historian of gender relations in 14th century France. You're perfectly free to say, no, this isn't. This is a. This slot is for a Civil War historian. Okay. Once you've hired your Civil War historian and you can even do things like, okay, our military history curriculum is going to have some required components. We're going to have a Bronze Age, Iron Age, Industrial Age, Nuclear Age, Drone Age, AI. You know, you can set it out like that. So there is institutional academic freedom to do that. And if somebody's been hired as a military historian to then say, nope, I want to do. I'm changing to the study of gender and history. They can say, you were hired as a military historian. Our curriculum is a military historian curriculum. And you have a lot of ability to sort of set the emphasis of the department. Then when teachers come in, they have a lot of freedom as to how they teach that subject. Like, what are they going. How are they going to teach what they were hired to teach? And then if, but then if a, if a university sort of says, okay, you professors have ability to formulate your own courses and to sort of offer electives and then to walk in and say, but they only have to be from a. Can only be from a particular point of view, and they cannot be from another point of view. You better be a private university at that point where the institutional academic freedom is being applied to. The only constitutional rights that exist are with the university. But when you're talking about a public university dealing with professors, the professors have their own First Amendment rights to assert against the university.

A

Can the state in law say there will be a course offered every semester that teaches that the Holocaust happened? We don't care who teaches it. We don't care what they teach during it. But there shall be one course in the history department every semester that is available that teaches the Holocaust happened?

D

Yes, I think so.

B

Okay.

A

All right. I don't think you fully convinced me, but this is why. Yeah, this is why these cases exist. Now, next time on advisory opinions, who even knows we have another Religious Liberty Circuit case out of the ninth Circuit. That is definitely worth a chit chat.

D

Oh boy. Yeah, the emails. In that case, Sarah, the emails.

A

Discoverability. Guys, be careful what you put in email when you are denigrating colleagues. All right, well, David, we'll see you next time on Advisory Opinions.