This Is Not A First Amendment Thing, Man

Episode Notes

Transcript

Joe Patrice: Hello!  Welcome to another edition of Thinking Like a Lawyer.  I’m Joe Patrice from Above the Law.  I’m joined by Kathryn Rubino.

Kathryn Rubino: Hey!

Joe Patrice: As well as Christopher Williams also.

Christopher Williams: Hello, hello!

Joe Patrice: All of us of Above the Law.

Kathryn Rubino: Hey, how are you?  How as your weekend?

Joe Patrice: Wait.  Is that — what’s that question?  Are you initiating the small talk portion of the show?

Kathryn Rubino: I was trying to start it before you had a chance to launch your offense of sound effects.

Joe Patrice: You know, frankly, you did a good job.  I really did not have that open.  You almost got away with it.

Christopher Williams: Far too excited to press a button.

Kathryn Rubino: It wasn’t for those damn kids.

Joe Patrice: Yeah.  So, yeah.  Hey, everybody.  How is everybody doing?

Kathryn Rubino: I’m okay.

Joe Patrice: Good, good, good.

Kathryn Rubino: I am more than fully vaccinated now against COVID.

Joe Patrice: More than fully vaccinated.

Kathryn Rubino: Yeah, I got myself a booster over the weekend.

Joe Patrice: Nice.  Nice, nice.

Kathryn Rubino: Yeah.  Got a fever, a little bit of a sore arm that continues to today, but nothing bad.

Joe Patrice: All right.

Kathryn Rubino: Hey, Chris.  How was your weekend?

Christopher Williams: It was amazing.  I got to be the dog uncle that my little heart wished to be.  Shout-out to Adam Goldman.  What the hell was the name?  Dog sitting, dog sitting.  Yeah, that’s the term for it which was cool because I got to show them house and eat some really good food in the meantime.  I got some cuddles.  So, very, very masculine.  Very, very good weekend.

Kathryn Rubino: Nice.

Joe Patrice: Yeah.  Well, I’m going to push back against traditional notions of masculinity and femininity, but I’m also going to say my weekend was probably the opposite of masculinity then, because I purchased an immersion cooker.

Kathryn Rubino: So, now you’re super pretentious.

Joe Patrice: Yeah.

Kathryn Rubino: From just regular pretentious.

Joe Patrice: Well, I swore I would never do this, but —

Kathryn Rubino: Yeah.  I mean we’ve — yes, yes.

Joe Patrice: I swore I would never do this, because I mean I don’t understand why I can’t cook with the regular many different cooking devices that I have.  However, I got in my head, thanks to my devotion to Alton Brown —

Kathryn Rubino: Of course, it’s Alton Brown.

Christopher Williams: Good eats.

Joe Patrice: Yeah.  I mean, the best show.  Anyway, he does an eggnog recipe that he says should be aged for two months before you do it, and I was like, “Oh.  Well then, I’ve got to get started.”  It’s raw egg in it which of course he says — he makes the point is, in the United States incredibly safe, it’s like a 1 in 20,000 that you could have some salmonella problems, but you know, just in case, if you wanted to do that, you need to get pasteurized eggs, and I tried to figure out how you pasteurize eggs and apparently, you do that with an immersion cooker.

Kathryn Rubino: So you bought an immersion cooker in order to pasteurize your own egg in order to age your eggnog for two months.

Joe Patrice: I like my eggnog, Kathryn.

Christopher Williams: Why are you the way that you are?

Kathryn Rubino: Seriously, everything about the way that you choose to be.

Joe Patrice: I mean, it was good stuff.  Now, I’m going to try and figure out if there are other uses for it.  I think there are.

Christopher Williams: No, no, no.  Everything else will taste like two-month old egg.

Joe Patrice: No, no, no.  It’s apparently great.  Well, especially for things like stakes and stuff like that.

Kathryn Rubino: Yeah, I mean I feel like I was once trapped in a cocktail party with various people who liked to regale me with stories of their immersion cooker.  So, I’m sure there are things to do, but I feel — as I said at the beginning, it’s just more pretention.

Joe Patrice: Yeah.

Kathryn Rubino: But I tell you, the fact that you’ve already started your Christmas cocktail routine makes me feel a lot better, but wanting to pull out my own Christmas decorations.

Joe Patrice: Yeah.  Look, you’ve got to get on this early.

Kathryn Rubino: Well, I saw a memory on social media of this time last year, and this time last year, I’d put up my first Christmas tree.  So, yeah.

Joe Patrice: I’m sorry.

Kathryn Rubino: Yeah, yeah.

Joe Patrice: Wait, you know something —

Christopher Williams: You know Halloween didn’t even happen, right — yet.

Kathryn Rubino: I do.  I do.

Christopher Williams: Like there are a couple of things in between.  There’s spooky Christmas and then there’s food Christmas, and then Christmas proper.  You have to factor those in.

Joe Patrice: By the way, those are now the official titles of those holidays in Above the Law legal resources.

Kathryn Rubino: Jack Skellington would be pretty happy with that.

Joe Patrice: Hey.  So, I think we’re — and this is just me being a lawyer who is like hypersensitive to phrasing and stuff like that, but you said you put up your first Christmas tree and it got me thinking, is this that you have never put a Christmas tree before?

Kathryn Rubino: No, that’s not the accurate interpretation.

Joe Patrice: So, what do you mean by you put up your first Christmas tree?

Kathryn Rubino: Last year, I put up four different Christmas trees in my home, that’s what I mean.

Joe Patrice: Okay.  All right.

(00:05:05)

Kathryn Rubino: They had different theming.

Christopher Williams: I thought they were all our Lord and Savior capitalism?  What’s the difference?  I mean, Jesus, I’m sorry.

Kathryn Rubino: That is obviously the subtext.

Joe Patrice: Yeah, okay.  Wow! Okay.

Kathryn Rubino: But I had a mid-century modern tree.  I had a farmhouse Christmas tree.  I had a traditional tree and then I had d Disney tree.

Joe Patrice: Okay.

Christopher Williams: You know what, Joe, you can keep your pressure cooker.  You’re fine.

Joe Patrice: Yeah, yeah.  I actually don’t have a pressure cooker.  That is the one form of cooking I don’t have now.  I’ve got everything else I think.

Kathryn Rubino: My point is, if you have four Christmas trees to put up, and I’ve got to be honest, I’m thinking about adding five this year.  But if you have four that you’re putting up at a minimum, you have to start in October.

Joe Patrice: Yeah.

Kathryn Rubino: That’s just how time works.

Joe Patrice: Okay.  Well, I mercifully think we’ve come to the end.

Kathryn Rubino: This is supposed to be joined.

Joe Patrice: The end of small talk.  I don’t have a running of the clowns this week, but I guess we could get — I guess —

Kathryn Rubino: I feel like you just didn’t try.

Joe Patrice: In fairness, everybody involved in some of these stories that we’re talking about today are clowns.  So, I guess it fits with everybody.

Kathryn Rubino: The good news is we don’t have to listen to that sound effect.

Christopher Williams: You’re going to make them use it.

Joe Patrice: Yeah.  I mean, that just seemed like you were daring me.  Hey, so let’s talk about what’s in the news, and I think the biggest story in the legal space this week has been the story of Yale Law School.  It was a controversy that erupted there that then boiled over into getting a lot of people way more involved than probably deserved.  I saw a Washington Post Op-Ed suggesting it was like the end of free speech which seems a little bit much.

Anyway, so let’s talk about this case.  Who wants to give us that update?  Chris, you wrote a story about it all, but you took kind of a slightly different angle than some of the other people covering it.  But can you give us like the broad contours of the story?

Christopher Williams: Yeah.  So, in the turn of events, that surprised no one.  At Fed Soc, I don’t know if it was a Fed Soc bro, a Fed Soc sis or Fed Soc NB because there was no information given on the student.  But we do know there were two well.  Decided to have a little Shindig, you know, maybe to lure some people with chicken as most Fed Soc events do, but this wasn’t the run of the mill — this wasn’t Chick-fil-A chicken.

Joe Patrice: Yes, it was almost like it was aggressively the opposite of Chick-fil-A chicken here.

Christopher Williams: Yes, well seasoned, but no.  So, this was a party that we have Popeyes chicken and I think the way that the email was fairies, was basic bitch drinks, you know, all the things you’d expect at a Yale event.  It was at the person’s trap house which is what they referred to the Shindig location as, which I thought was goofy.  Like if you’re going to use racial-esque language, be more like subtle.  Use it like the literary reference.  Be like, “Hey, do you like Uncle Tom’s Cabin?”  Why don’t you cuddle when you’re talking about memory?

Kathryn Rubino: I like that you think Uncle Tom’s Cabin is more subtle.

Christopher Williams: Hey, I mean listen, it’s a fine line.  I mean there are traditionalists, you know?  You’ve got to have some literary content in there.  Trap houses too is too current.  But yeah, surprised, shit looked racist and then Black Law Students Association of Yale, shout-out to them I think.  They were like respectfully, the fuck, and — and there was a big fall out.  And then the thing that I found wild about the story was not that either a pseudo or actual racist things occur was that Yale had a straight up cafeteria list of apologizing for when the minorities get wronged.

It’s like if you’re in their dining houses which I’m sure are phenomenal, there’s a little den of deer minority group with an O or an A or an X at the end of it.  We are sorry that X occurred, maybe the word “again.”  We’re doing our best to ensure that — I don’t know, we’re making this campus a safer space.  X offender will do their best to educate themselves and ensure — you know, all the BS you hear whenever somebody says the N word at a college.  I mean, Kathryn’s covered and when teachers do it, or you know, just somebody stubs a biased teacher on the toe, whatever happens, whenever there’s something racial, the same apology happened.

But the thing that made this weird is the letter was written.  All the (00:09:35) to do was to hit send, and then (00:09:36) was like, “Nah, I’m good.  They’ve got a problem, but I posted.  They’ll come talk to me.”  You know, so like all these happen, like you learn about the details of how Yale handles these things, because there was like one student that was like, “I don’t care.”  And the other thing that I thought was interesting, just the sheer lack of not caring about the consequences of one’s actions.

Joe Patrice: So, my takeaway on it, I think there were several aspects — and this is something that always gets me about these racist incidents when they come up and the students claim, “Oh, we didn’t know.”

(00:10:10)

Putting aside whether or not it’s fair that they didn’t know, what got me was there were so many little things that were done in this story that all independently probably would not have seen particularly racist.  But all put together, it is almost impossible —

Kathryn Rubino: It’s the penumbra of racism.

Joe Patrice: Yes, it is impossible not to — and the problem is there is something in the kind of libertarian mind as who are the people who are largely coming to the defense of a Fed Soc kid of course.  In the libertarian mind, two plus two can never equal four.  It’s a series of two’s in their minds.  If you called this a trap house and just moved on with life, then I think you could just say, “Oh, he thinks he has a bad house or whatever.”  If you just served Popeyes as opposed to Chick-fil-A, I don’t think anybody would have even noticed a difference.

If you just said basic bit because it’s pumpkin spice season, I don’t think anybody would notice.  But you put all of those together and you’re pretty clearly signaling that you’re giving the black face a party as it seemed.

Christopher Williams: It’s like a Jackson Pollock painting.

Joe Patrice: Yeah.

Christopher Williams: You know, you see little spots of blue, little spots of black.  That’s fine, but you’re like, “Oh, wait.  What, 400 years?”

Joe Patrice: Yeah.  Exactly, and that is how the defense of it has largely gone.  We’ve seen this with — I mean, David Lat has a sub-stack that he runs now and he’s interviewed the student involved in this.  But like just reading that —

Kathryn Rubino: Yeah, and the student basically says to each of those points, “Oh, I didn’t know the meaning of trap house.”

Christopher Williams: Then why would you say it?

Kathryn Rubino: “Oh, Popeyes was just meant to signal Americana and basic bitch was just a joke,” or whatever, and then it’s exactly what you said.  It’s like each discretely explained a way as opposed to sort of looking at the overall effect of those things.

Joe Patrice: I mean, Lat also on Twitter over the week has been pointing out that like, “I didn’t even know about this,” and it’s like —

Kathryn Rubino: The term “trap house.”

Joe Patrice: Yeah, and I’m like — I mean, I guess — but I mean, that’s what Google is for, right?  You can figure this stuff out.

Christopher Williams: Also, who hasn’t heard of the lyrical musings of 2 Chainz.  I mean, you go hard, right?

Kathryn Rubino: That’s like how terrible an example for students, for law students that words don’t really matter.  It’s just whatever you thought they mean as opposed to established meanings or terms of art that you put into a particular document.

Joe Patrice: Oh, that’s interesting.  You want to turn this into an actual statutory interpretation lesson.

Kathryn Rubino: Yeah.  Yeah, yeah.

Joe Patrice: Sometimes, all these words in connection create a new phrase.

Kathryn Rubino: It almost seems like that’s the purpose of law school.

Joe Patrice: Right.

Kathryn Rubino: Teaching you to think like a lawyer.

Joe Patrice: Ooh, wow!

Kathryn Rubino: Look at it, I’ve got a plug for the show into —

Joe Patrice: Fourth wall break, let’s go.

Kathryn Rubino: Wow, okay.

Joe Patrice: Yeah.  So, one of the more interesting takes on this, like a hot take came unsurprisingly because since I’m saying the word “hot take” from Slate where Mark Joseph Stern made the point that he was opposed to the way in which Yale has handled the situation because it was going to create and seemingly has a more grist for the conservatives or so put upon by these leftist institutions who hate free speech and blah-blah-blah, which we have seen a bunch of those, and his point was this was one of those times where you know, this is theoretically otherwise constitutional in protective speech obviously.  Law schools and for an official event like this, law schools have professionalism standards that they can apply to organizations, especially when it’s private law schools.

So, the fact that it otherwise might be constitutionally protected does not really mean that the kid can get in trouble for doing it under the auspices of organizations.  But Stern’s argument was that this is just going to make things worse and create more sympathy for this kind of world view.

Kathryn Rubino: I have a term for that.  It’s called non-unique.

Joe Patrice: Yeah, I mean yeah, that was my takeaway too.  I was like, we talked about this with the bound situation that we mentioned last week where we were talking about federal judge clerkships and how Fed Socs got into a point where there is no end to the grist for this mill.  Like they will push the boundaries to do something slightly more offensive and you have two choices, you can either address it and they will whine and complain about it or you can do nothing and they will do another boundary pushing thing further until you address it, and then they’ll whine about it.  There’s no end to setting up the situation for them to whine.  It’s their whole raison d’être.

Kathryn Rubino: Right, and then you more importantly perhaps risk letting things that are problematic go by unchecked because it’s like you’re being held captive by the terrorist, right?  You’re letting the terrorist win if you’re just worried about them complaining.

Joe Patrice: Now, back to Chris’ point, I don’t think the way in which you stop the terrorist from winning is by putting out yet another —

(00:15:02)

Kathryn Rubino: Form letter.

Joe Patrice: Our thoughts and prayers form letter, but — like yeah.

Kathryn Rubino: It’s like — do you remember like — I don’t know, like the fancy moms when you were a kid had like the absent — like these little checkbox things that was like they can send it to the teacher and they were like funny.  It’s like, “My child, blank, has been absent, late,” whatever and then they had like all these little options.  Your mom could like check, and the last one was like, “not feeling like going to school today,” or something like that.

Joe Patrice: No.

Christopher Williams: We had different moms.

Joe Patrice: Yeah.

Kathryn Rubino: No, I’m saying, I didn’t have them but like the fancy moms.

Joe Patrice: This is the note you got from Epstein’s mom?  Wow, that’s an old reference.  Anybody who gets that one.  You know, anybody?

Kathryn Rubino: I am distinctly younger than you.

Joe Patrice: Yeah.

Christopher Williams: Just you.  Just you.

Joe Patrice: Sitcom.

Kathryn Rubino: Like, fancy moms had them, and then you’d be like, “Oh, you had the fancy absent note as opposed to just something your mom scribbled on a ripped out page from your spiral notebook.”

Joe Patrice: Wow, okay.  You’re in the different universe and then we are I guess.  But anyway.

Kathryn Rubino: I mean, I had the spiral notebook ripped out page is what I’m saying.

Joe Patrice: Anyway.  So, have we exhausted this topic already, but any final thoughts here?

Christopher Williams: Go, Yale!

Joe Patrice: Yeah.

Christopher Williams: This will be great for you.  One thing I found funny from my angling on it was the head of diversity equity including those wonderful words.  Part of the reason that they type the email out for the two hours, like let’s just get this to blow over quickly, and really I want to —

Kathryn Rubino: Exact opposite.

Christopher Williams: Yeah, like —

Kathryn Rubino: Barbra Streisand has some words for you.

Christopher Williams: Yeah, and I just really don’t like performative wokeness.  I am not a fan of it.  It has, the French say, grinds my gears.  I’m sorry, that’s Peter Griffin, but I just really don’t like that, and I think it’s a damn shame, that kind of behavior is coming from.  It’s just literally Yale.  It’s like there isn’t a school higher than that, except for maybe like side walking university law school, because whenever there were like non-lawyers talking about say the First Amendment, they outranked anyone with a JD.  But yeah, it’s a damn shame that even Yale has these canned responses to racism on its campus, and these are probably the people who are going to be leading our futures.  But okay, whatever, what do I know?

Joe Patrice: Yeah.  Well, we will go from the story about a law school —

Kathryn Rubino: Why did you go to law school?  Was it to be an accountant?

Joe Patrice: No.  No.

Kathryn Rubino: Oh.

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All right.  So, let’s transition from that, not really a First Amendment story that people tried to turn into a First Amendment story to this.  Not a First Amendment story that people are trying to turn into a First Amendment story.

Kathryn Rubino: It’s because we fetishized the First Amendment is why.

Christopher Williams: It is top two.

Joe Patrice: I do not a sound effect for fetishize, and we’re all glad I don’t.  So now, onto–

Kathryn Rubino: What?  Wow!

Joe Patrice: I mean, in a deeply Lacanian psychoanalysis sort of way.  I’m not talking about anything else.  I don’t know where your mind was.

Christopher Williams: Get your leg out of here, Joe.

Joe Patrice: All right.  So, Merrick Garland who is the attorney general at this point had —

Kathryn Rubino: Sure is, managed to get a hearing on that one.

Joe Patrice: You did get it.  Yeah, yeah, it was interesting.  He must have been shocked to learn that hearings still happen.  So, anyway, current attorney general has announced that there is reason for the DOJ to be looking into certain situations that are coming up where people, largely anti-vax, anti-mask people are threatening school board members and school officials and that the DOJ will look into those threats of violence as they come up.

Kathryn Rubino: I mean, that’s some bullshit, right?

Joe Patrice: Right.  So, let’s — okay.  Before we get to the crazy part, let’s dispense with this.

Kathryn Rubino: We live in a world where people are threatening their school board members because of science.

Joe Patrice: Right.

Kathryn Rubino: They don’t like science so they are taking to violence.  Not great, not great.

Joe Patrice: Okay.  So, that’s fair.  I think that’s true.  There’s also a question of well, I didn’t want to go to this direction first.

Kathryn Rubino: Sorry.

Joe Patrice: Let’s actually pull back from all of what you just said and go to the — let’s go through this in this order.  So, you would think Merrick Garland looking — you know, investigating threats of violence would be a fairly straight-up-the-gut use of the Department of Justice, however, it has not become a straight-up use of the Department of Justice as there is a controversy.  Dan-dan-dan!

Kathryn Rubino: Tan-tah-dan!

Joe Patrice: Yeah, I don’t think I have that.

Kathryn Rubino: See, that’s better than a sound effect.

Joe Patrice: Yeah.  Anyway, so there is a conspiracy theory out there that he’s doing this because his son-in-law runs an organization that does surveys for public school districts and so on.

(00:20:02)

So, schools pay this company a lot of money to ask questions to learn about benchmarking and standards for education.  You know, the sort of stuff that we farm out to private institutions to waste tax payer dollars, because that’s what we do these days.  Anyway, this organization asked a bunch of questions and the new theory that Steve Miller, the former ghoul in the White House is very much behind and got a lot of Twitter insanity behind it and national review articles and stuff like that, is that Merrick Garland is using the Department of Justice to go after protesting parents at school board meetings in an elaborate effort to feed his son’s business which they argue exists to promote critical race theory, you know, where the big money is.

Kathryn Rubino: I mean, there’s literally not a part of the story that makes a lick of sense.

Joe Patrice: Yeah.

Christopher Williams: I think it — like I feel like whenever there’s a conspiracy theory like this, need to follow up with, it makes more sense to let you think about it.

Joe Patrice: It really is.  It’s so bizarre.  Well, first of all, like there’s nothing about critical race theory being involved in any of these particular investigations though, in fairness to the conspiracists, I guess eventually, somebody is going to threaten a school board member over what they imagine critical race theory to be which it is not in any of these instances and will have to get investigated for threatening somebody with violence.  But you know, whatever.  It’s brought to the floor a number of shitty legal takes.  I read Andrew McCarthy who — you know, former federal prosecutor who is very much on this Sidney Powell line of having lost their marbles as former federal prosecutor.  He is arguing that he tried to kind of legal slide a hand by saying like there’s no way they could investigate these people.  Look, the rules for incitement are so high and it’s like, right.  Well, we’re not talking about incitement.

Kathryn Rubino: They’re actually doing it.

Joe Patrice: Right, yeah.  Yes, there’s a high threshold on incitement because that’s you saying things that might lead to somebody doing it.  But when you’re bringing a gun to a school board member’s house, you’ve actually done the thing.

Kathryn Rubino: You’ve just done it.  That’s just a thing.

Joe Patrice: Yeah, that’s the thing.

Kathryn Rubino: That’s not inciting violence, that’s actual violence.

Joe Patrice: Right.  Yeah.  So, that’s what’s going on.

Kathryn Rubino: Also like, how was investigating anti-vaxers supposed to increase money for —

Joe Patrice: Critical race theory?

Kathryn Rubino: Yeah, even — which I think that you’re right, that none of these, these company’s surveys are anything to do with critical race theory.  I think at best they ask questions about like how does racial violence affect students like —

Joe Patrice: No, I mean, the closest example I saw at any of my research on this story was that one of the questions they asked was, do you feel as though you are ever discriminated against at the school, which is you know, actually against the law.  So, probably, a good question to be asking.

Kathryn Rubino: Yeah, seems legit.  Seems legit.  But okay, but even putting that to one side, how does the investigation supposedly increase the pocketbooks of this company?  Oh, okay, okay, all right.

Joe Patrice: By eliminating the people who protest against these things, I guess, right?  I don’t know.  Who’s drank enough vodka today?

Christopher Williams: I know, for me, it’s — my goat (ph) saying is it’s 1:00 somewhere, but it’s not even 1:00 here, so I’ve been drinking water and sleep.

Joe Patrice: Fair enough.  Yeah, but I think the argument is that the same people who are anti-vaxers are going to reliably become anti-critical race theory people which —

Kathryn Rubino: It’s not started critical —

Joe Patrice: Opens up a whole new can of worms, probably about whether or not these people are good faith actors.

Christopher Williams: Maybe that’s why they’re taking ivermectin because they’re opening up cans of — you know.

Joe Patrice: Oh, yeah.  Wow!  But at the end of the day —

Kathryn Rubino: That was funny.

Joe Patrice: No, that was good.

Christopher Williams: Now, I’ll be here all week.

Joe Patrice: But yeah, so that’s the issue and they are looking anew for that.  Now, I will say, generally speaking though, as much as this like an argument about how going after people who actually threaten folks with violence is about chilling free speech, I do have to quote the dude here and say —

Male: It’s not a First Amendment thing, man.

Joe Patrice: Okay, it is not a First Amendment thing, man.  You’re giggling, good.

Christopher Williams: I just saw The Big Lebowski like a couple of weeks ago.

Joe Patrice: Wow, really?

Christopher Williams: Yeah, yeah.

Joe Patrice: Nice.

Christopher Williams: Now, I get it.

Joe Patrice: Now, you’ve caught up, yeah.

Christopher Williams: Yeah.

Joe Patrice: I mean, one of the all-time greats.  Anyway, so —

Kathryn Rubino: You are all so old.

Joe Patrice: I don’t think that.  After I’ve done a welcome back cotta reference in this show, I don’t think you can call Big Lebowski references old anymore.

Christopher Williams: If it helps, I think you’re old.

Joe Patrice: Okay, not bad.  So, if I could chill some of the free speech going on right now, and so he’s — I will say, and this is where the topic you raised is on earlier, and I think comes in, is I do think there is a chilling of free speech going on here.

(00:25:07)

But it’s not about actually investigating these people, it’s about making an announcement that you plan to investigate people, which only invited the sort of insane speculation around things that cause people to rightly, fairly or not, believe that they’re being chilled.  If you’ve not done any of that, I don’t understand why the Department of Justice feels the need to announce the FBI investigations they’re looking into doing.  It seems like — you don’t tell people before you do these sorts of things.  It is my basic understanding of how law enforcement is supposed to work, but here we are.

Kathryn Rubino: I mean, they announced lots of investigations though, right?  Like, they have a press department for a reason.

Joe Patrice: Yeah, specific investigation.  They don’t say, “Today, we’ve decided we’re going to start looking into everyone who makes an anti-vax” — it was just a dumb way of putting it out there, and that’s not exactly what they said, but it’s clearly how everyone read it, and it caused this nonsense where people spun it into the First Amendment.  Just keep your mouth shut and do the investigations as they happen.  Whatever.  So, yeah, we had a third topic, but we’re running — we’re at 28 minutes, what do you think?  Try and get this last one in there?

Kathryn Rubino: Go for it.

Joe Patrice: All right, well.

Kathryn Rubino: Supersize this episode.

Joe Patrice: All right.  So, first, let’s hear from Lexicon.

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Joe Patrice: Okay.  So, finally, we had another story which evokes yet another “this is not a First Amendment issue, man.”  A story of the ACLU has filed an amicus brief in a case in Virginia where three teachers are claiming that their First Amendment rights are being violated because the school district requires them to utilize the personal pronouns of their students.  This has caused — triggered —

Kathryn Rubino: Why do people suck?

Joe Patrice: Yeah.  Well — right.  That’s a different conversation.  What I will say for keeping it legal, this then prompted a bunch of dumb, bad legal takes of people saying that it’s — like Glenn Greenwald saying that like the ACLU is betraying its core principles by like — I mean, how could they be against free speech here, yeah.

Kathryn Rubino: Because there are more than just speech as a civil liberty.

Joe Patrice: It’s almost like they named the thing, the “American Civil Liberties Union” as opposed to “American Free Speech Claims Union,” yeah.

Kathryn Rubino: Yeah.

Joe Patrice: What gets me is it just it was a bad legal take.

Kathryn Rubino: It’s like people are surprised that trans folks are people.

Joe Patrice: Yeah.

Christopher Williams: Which they are, just to be clear, which they are.

Kathryn Rubino: To be clear.

Joe Patrice: And it seems like what really is chapping people like Jordan Pierce since hide is that you know, the ACLU dares to think that trans people deserve the same sorts of rights that you know, good Nazis deserve, which — that’s the whole issue here, right?  These folks have no problem that the idea that the ACLU defend a bunch of Nazis in their free speech rights, which of course they do historically and have, and that’s their mission.  But there are more to civil liberties than that, and in this instance, they’re defending trans people from not getting discriminated against at school, which is the —

Kathryn Rubino: Yeah, public school.

Joe Patrice: Public school, which is the big difference here.  Like the actual issue here is nothing about who’s — about free speech or whatever.  The issue here is can state actors use the awesome power of the state against you in this way.  These folks can be — they get on their free time, but they can’t roll in with the imprimatur of state education and force a bunch of kids who are there for compulsory education to deal with discrimination.

Like, when did we start thinking — I just don’t understand how, especially people like Greenwald who has — I always kind of have a base little defense of him, because I thought he did a lot of good work like standing up to the idea of like the National Security State and whatever.  But like, when did this guy get to the point where he’s like big government good, which is basically what he’s saying here, you know, that we should have our constitutional order be set up so that government actors can do whatever they want.

Kathryn Rubino: I feel like Greenwald is just a contrarian these days.  It’s like whatever he can say, that’s the opposite.  It’s opposite day in his world.

Joe Patrice: It is.  Since he’s lived in Brazil, it’s like how the toilets in the southern hemisphere go backwards.

Kathryn Rubino: I don’t think they really it’s true there. I think that’s’ a myth.

(00:30:03)

Joe Patrice: Yeah, I don’t think it is either.  I mean, I’ve seen that episode of The Simpsons.

Kathryn Rubino: It must be true. Simpsons did it.

Joe Patrice: Yeah.

Kathryn Rubino: That proves how old you are by the way.

Christopher Williams: I think most facts finder should be able to consider The Simpsons episodes for the veracity, because they’ve been preventing a lot of shit.

Joe Patrice: Yeah.  Exactly, right?  The one I saw today was a picture of the transit system in San Francisco is now requiring proof of vaccination to go on it, and the headline was “Bart Requires Vaccination,” and somebody tweeted it with “Finally, a sequel to Lisa Needs Braces.”

Kathryn Rubino: Amazing.

Joe Patrice: Yeah.  Okay, so final thoughts on this or any of our topics?

Kathryn Rubino: Why do people suck?

Joe Patrice: Question of the millennials.

Kathryn Rubino: More philosophical kind of question.

Christopher Williams: Cheers for government employees not being able to like dead name or misname their students, just from like a pedagogical standpoint.  I need a legal one.

Joe Patrice: Yeah.

Kathryn Rubino: I forgot where you said if this this Fifth Circuit, they’re screwed.

Joe Patrice: Oh, Virginia, so all right.  Yes.  Well, thank you everybody for listening.  You should be subscribed to the shows to get the episodes when they come out.  You should give reviews, stars, write something, all of that.  The more you engage with it by writing things, the better off it is.  You know, we’ve got a good rating right now, but it could always be higher, people.

Kathryn Rubino: Always be better.  Give us a little shout-out, give some stars.

Joe Patrice: Do your part.

Kathryn Rubino: Let us know what you’re thinking.

Christopher Williams: Tell your grandma about us.

Joe Patrice: Yeah, or random people on the street, whatever it is.  Anyway, get on that.  So, you should be reading Above the Law if you want to see some of these stories as they happen and check out other work as well as our other colleagues as they cover various issues in the legal sphere.  Yes, you should be checking out our other shows.  Kathryn is the host of the podcast The Jabot.  I’m a panelist on the Legal Week Journalist Round Legal —

Christopher Williams: Take your time.

Joe Patrice: I’ve had it right for so many weeks and Kathryn keeps this joke that I can’t get it right, and then obviously now, I get it wrong.

Kathryn Rubino: I said nothing.

Joe Patrice: Legaltech Week Journalists’ Roundtable.

Kathryn Rubino: Do you need cue cards?

Joe Patrice: It just doesn’t flow off the tongue.  I’ve said it before.  Anyway, point is, I’m on that a lot, though not for the next couple of weeks unfortunately, but I’ll be back.  You should be checking out all of that.  You should check out the other shows from the Legal Talk Networks vast library of podcasts.  You should be following us on social media.  I’m @JosephPatrice, she’s @Kathryn1, the numeral one, Chris is @WritesForRent, the word “writes” being like —

Kathryn Rubino: You write it with a pen.

Joe Patrice: Write with a pen, yeah, yeah.

Christopher Williams: Not a First Amendment issue.

Joe Patrice: Yeah, I just want to make sure that people didn’t know that you’re just a conservative troll that writes for that.

Christopher Williams: No, no, no.  I’m run-of-the-mill troll.  I like — you know.

Joe Patrice: Fair enough.  Yeah, and so, thanks to Nota powered by M&T Bank and Lexicon for sponsoring this show.  With all of that said, I think we’re done and we will talk later.

Kathryn Rubino: Peace!

Christopher Williams: Have a good one.

[Music]

 

Podcast transcription by Tech-Synergy.com

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