Your First Amendment Right To Sit Quietly And Not Say Anything

Episode Notes

Transcript

[Music]

Joe Patrice:  Hello.

Kathryn Rubino:  Hello, how are you?

Joe Patrice:  I’m good.  I’m good.  How are you?

Kathryn Rubino:  I’m good.  Welcome to Thinking Like a Lawyer.

Joe Patrice:  Oh.  Are you going to do the intro duties here?

Kathryn Rubino:  No, I’m just going to do the parts I like.

Joe Patrice:  Okay.

Kathryn Rubino:  Yeah, that’s I think a good place for me to come out on all this.

Joe Patrice:  Okay.  And who are you?

Kathryn Rubino:  I’m Kathryn Rubino.

Joe Patrice:  Who am I?

Kathryn Rubino:  Joe Patrice.

Joe Patrice:  Wow.  Where are we from?

Kathryn Rubino:  Above the Law?

Joe Patrice:  Yeah.

Kathryn Rubino:  We’re seeing your editors and your hosts for today.

Joe Patrice:  Oh, wow.  You did most of that.  That’s good.  Maybe I can ride into the sunset on the hosting duties and you can start the introductions yourself from now on.

Kathryn Rubino:  I much prefer interrupting you.  That’s kind of some joy that I get.

Joe Patrice:  I’ve noticed.  I just don’t think — I don’t think any of the listeners like — you’re interrupting me all the time.

Kathryn Rubino:  Are you speaking for other people?  I’m pretty sure that’s a bad thing.  Speaking for others is not great.

Joe Patrice:  Yeah.  So, I guess you’re just going to keep interrupting.

Kathryn Rubino:  You’re just going to try to interrupt me with the sound.  Like I said, you just did what I said.

Joe Patrice:  I mean, I learned it by watching you.  All right?

Kathryn Rubino:  (00:01:34).

Joe Patrice:  So, small talk.  What is up in the world of Kathryn Rubino right now?

Kathryn Rubino:  I had a banger weekend.  I was off on Thursday and Friday of last week because of my mother’s birthday.

Joe Patrice:  Oh, happy birthday.

Kathryn Rubino:  And my family and I went out to Napa for some wine tastings, and I’ve never been to wine country out there.  I’m from the New York area.  I have been to New York wineries, which are lesser in overall.  It’s different.  Let’s just say it’s different.  So, I’ve never been to Napa, been to Northern California, but just not there.  Had some great wines and really delicious food and caught up with some family.  Good time was had by all.

Joe Patrice:  That’s awesome.

Kathryn Rubino:  Yeah.  But it also means that I missed some of the bigger legal stories of last week.

Joe Patrice:  Oh, really?  If you’re interested, I think Ginni Thomas can text you on what’s been going on.

Kathryn Rubino:  Yeah, that was the thing that happened.

Joe Patrice:  This wasn’t one of our planned topics, but let’s have some small talk about it.  So, apparently, Clarence Thomas’ wife was texting the chief of staff to the White House.  Bunch of conspiracy theories stuff.

Kathryn Rubino:  I mean, some truly unhinged stuff.

Joe Patrice:  Like how the Biden’s are going to be arrested and sent to GTMO or a barge off the coast of GTMO, which I actually thought was really cool, since Clarence did a lot of work to make it clear that GTMO is some sort of weird torture holiday land.  And they don’t even want them there.  They want them on the barges off the coast of GTMO.  So, that’s like super califragilistic torture.

Kathryn Rubino:  Nice.  It is astonishing.  It is deeply disturbing.  And there will be zero consequences for it so that feels pretty on par.

Joe Patrice:  He was the loan dissenter in an opinion earlier about letting documents from that investigation go public.  Now, I think we know why, assuming he was aware that these existed.

Kathryn Rubino:  You have to imagine that that was true.

Joe Patrice:  Well, he also was sick.

Kathryn Rubino:  You’re correct.  He was also sick.  Apparently, a longer hospital stay than initially anticipated, but appears to be on the mend now.  The other thing of somewhat legal note that we haven’t really written about, but we might want to chitchat about is the issue spotter that happened during the Academy Awards.  Seriously, we have to, like, how many final exams will take some Academy Award based scenario and put it into the test?

Joe Patrice:  Who’s liable?

Kathryn Rubino:  Who’s liable?  How many torts are there?  Come on.  If anyone who’s currently in law school is listening whenever your final exams roll around, if there is an Academy Awards, Will Smith, Chris Rock based prompt, please let us know.  I think there will be.

(00:05:00)

Joe Patrice:  I don’t know.  It’s an intentional court.  Right?  I don’t know.

Kathryn Rubino:  Sure the assault part is.

Joe Patrice:  The battery.

Kathryn Rubino:  See, that’s two right there.  Plus, was it intentional infliction of emotional distress by deliberately on Chris Rock’s?  But see, that’s an issue, right?  It’s not going to be, “oh, this is exactly what happened at the Academy Awards.”  They use it as a starting point and they changed the facts.  Well, that is, of course, if professors decide to rewrite their exam every year, which we know for a fact and Above the Law, not every professor is super diligent about.

Joe Patrice:  Yeah.  Which creates problems every year when somebody reuses an exam, that the answer key is already floating around the school.

Kathryn Rubino:  Which means some people have it, but not everyone.

Joe Patrice:  Yeah.  Well, cool.

Kathryn Rubino:  What do you want to talk about?  What was your chitchatty moment?

Joe Patrice:  I didn’t really have one.  I felt like I was going to let you drive the conversation.  You did.  We got into talking about a couple of cases.  Not cases, events that we otherwise haven’t covered.  All in all, a pretty successful small talk, I thought.  Yeah.  Did you have something to say?  I’ll hold off if you have more to say.

Kathryn Rubino:  No.

Joe Patrice:  Okay.

Kathryn Rubino:  Just trying to not get interrupted.

Joe Patrice:  Okay.  You’re really on the edge about this.  Has this really gotten into your head?

Kathryn Rubino:  I can see your finger.  I can see your finger itching towards the button on the cell boards.  It’s not fair.

Joe Patrice:  I need to come up with a way of triggering that without being so obvious.

Kathryn Rubino:  We’re going to do, like, mental sound boarding?  That’s weird.

Joe Patrice:  I don’t know.  We’ll work on that.

Kathryn Rubino:  How are you feeling?  It doesn’t sound great.

Joe Patrice:  There’s nagging cough.

Kathryn Rubino:  COVID?

Joe Patrice:  No.  And that’s the thing.  I think we talked about this on the last show.  Like I got sick and all the COVID tests were negative and I couldn’t figure out what that meant and then I realized, oh, right, there are other things and I hadn’t thought about it in years.

Kathryn Rubino:  To be precise.

Joe Patrice:  Yeah, fair enough.  So, yeah, just a nagging cough.  Anyway, that seems more like a small talk topic.  We’re done with small talk, so that can’t be no, not hitting.  There is no sound.

Kathryn Rubino:  What sound are you queuing up?

Joe Patrice:  There’s none.

Kathryn Rubino:  You really have deeply damaged me.

Joe Patrice:  Yeah.

Kathryn Rubino:  What else is deeply damaged?  The current conception of the first amendment?

Joe Patrice:  There is that.  So, we’ve been having some coverage of some issues that are coming up surrounding — theoretically the first amendment, though more accurately these are dealing with private institutions.  So, they aren’t really first amendment cases, but they are about free speech and the culture of free speech in this country and how it operates.  I’m going to start with the premise which is that there was an event that was held at Yale where they invited a lawyer from a recognized hate group which is always awesome.

Kathryn Rubino:  Delightful.

Joe Patrice:  Somebody from a group that is on several hate group lists to speak.  People protested this and –

Kathryn Rubino:  As one does.

Joe Patrice:  As one generally does.

Kathryn Rubino:  As one does.

Joe Patrice:  And this prompted an outpouring of consternation from corners like the Wall Street Journal about how cancel culturing heckler vetoing of speech because people get to protest.  I originally wrote a piece explaining that you can argue that it’s not a great thing to have protests in that academia should be open blah, blah, blah, or it’s a matter of professionalism blah, blah, blah.  All of these are fair arguments.  I don’t necessarily by them myself, but those are fair arguments.  What is not a fair argument, I said, is to argue that free speech equals people on the stage with microphones and not protesters.  That is not how free speech works.  The protesters absolutely have the right to protest.  That is how that is supposed to work.  And with that said, I just pointed out that I find that it’s kind of dangerous to try to import free speech, the whole infrastructure of free speech in this country as a legal concept and try to pervert it into shutting down people who exercise their rights in ways that official channels don’t like.

(00:10:03)

That seems like a problem.  You can have other arguments about whether or not it’s the right thing to do, but free speech is not the proper avenue.  This has gotten me all sorts of complaining people.  People who are like, well, you can’t.  What about the heckler’s veto, which, as I’ve explained multiple times to people over the last week, to the levels where it bothers me almost as though people were absent that day, that we covered that in law school.  Heckler’s veto does not mean people heckling you.  That’s why they don’t say people heckling you.  The extra word in there is because it does more work.  Sort of like hot dog not being the same thing as a poodle on fire.  When you put the two words together, they mean something different.

Kathryn Rubino:  Phrases have meanings.  Words modify one another.

Joe Patrice:  Yeah.  And the heckler’s veto as a concept in law stems from a lot of cases.  Brown v. Louisiana is the first one that used the term.  However, in that opinion, they cite a number of prior cases that dealt with the concept, even though they didn’t have the term yet.  What it’s about is in that case is a perfect example.  It was about a situation where civil rights protesters staged — one of the stage to sit in and your very stereotypical southern sheriffs rolled in and said, we’re putting you in jail because you staging to sit in.  It’s not that we’re trying to stop you, but you staging to sit in means the yokels are going to come and create violence and trouble.  And because they’re going to do that, you can’t do your speech.  The point of the “heckler’s veto” as a legal concept is that the government can’t use the real or imagined threat of some sort of security problem as an excuse.

Kathryn Rubino:  As an excuse to fire straight.

Joe Patrice:  Yes.  It’s an end run around the first amendment and the courts say you don’t get to do end runs around the first amendment.

Kathryn Rubino:  What they used to.

Joe Patrice:  Right.  Fair point.  But that’s what it is.  It is not.  You’re not allowed to heckle people, as Will Smith proved.  Right up until — and look, the Will Smith situation is a good corollary to this, right?  Like he could yell at Chris Rock all at once from a free speech perspective, hitting him means that it’s no longer a free speech issue that now crosses the line.  And I think that’s really the issue with this sort of protest.  These organizations trying to import the term heckler’s veto, which we know means a bad thing onto this situation by redefining what it means, they take the result.  We know the result is bad, and we just redefined the first half of the equation and now apply it to heckling.  That bothers me because I think is happening because despite all the breathless descriptions people have, these protesters don’t get up and hit people.  You can’t stop them the way that you normally could under the normal functioning of law by saying you’re allowed to speak, but you’re not allowed to go hit somebody.  They don’t want that.  They want to get the extra power of just making people be silent and listen to whatever the official channel wants them to force them to listen to.

And so, they’re trying to import this theory into that.  That’s bad.  It should be rejected.  You can have as many arguments as you want about protests being problematic.  Frankly, I often find them obnoxious.  That said, that’s kind of the point of free speech is you’re supposed to find this stuff obnoxious.  I think it was William O. Douglas who said it reaches its highest form when it’s something that irritates people.  Whatever.

Kathryn Rubino:  I think it’s interesting the sort of legal experts redefining established legal arguments.  But I also wonder if this sort of — I don’t want to say deliberate but very specific way that the legal profession has these idiosyncratic terms that mean very specific things that are often hard for a layperson to understand.  I think most people just hear heckler’s veto and on a gut check level means something to folks who are not lawyers and because the profession has defined it in very specific ways, but they’re not necessarily lined up with the kind of gut check version of what it means.  It created this tension and this opportunity for folks to do that damaging work of redefining it in contradiction to the real definition.  And I wonder if there isn’t some sort of that opacity of the profession that’s also to blame, as opposed to just the folks who are sort of, I would say deliberately and I think you’ve made that argument as well, misinterpreting what those terms mean.

(00:15:10)

Joe Patrice:  Yeah.  I think that is very much a possibility, that law makes itself confusing, and sometimes that creates problems.  Unfortunately, I would really prefer our legal experts to be going out there right now to say here’s what this means and here’s what it doesn’t mean, and not throw caution to the wind and play fast and loose with legal concepts.  I want to transition just a little bit, though, to the fact that I keep saying that a lot of this is coming from the fact that they want to be able to shut down protest, but they can’t because these people don’t actually cross the line and hit people and spit on people and create actual assaults and batteries and sorts of things that they could shut down.

And on that note, having spoken to witnesses and now having read the actual official statement about what happened here, which I disagree with the conclusions of, but between both of those accounts, I now have multiple perspectives on what actually took place, and most of it adds up to The Wall Street Journal made a lot of this stuff up.  It does not appear as though anybody was actually shouting down the speakers.  Some people made comments early, then they left the event.  A few people stayed to ask questions at the end which were going to be challenging questions, but that’s the point.

Kathryn Rubino:  Sort of point of academic Q&A, right?  It’s not just like hey take a victory lap here at the end.

Joe Patrice:  The people who left basically picketed outside the event.  There were so many people picketing it the sort of thing that happens with hate groups and stuff like that being involved.  But there were so many people willing to picket it that the official account says, well, we could still hear the people shouting outside and that was disruptive a little bit.

Kathryn Rubino:  Get better soundproofing.

Joe Patrice:  Yeah, that is a far, far, far cry from people were trying to shout down a speaker.  So, beyond whether or not this was a proper exercise of free speech for people to protest the facts as delivered by the media and are constantly repeated by the media and, frankly, repeated by me, even in my defense of it because I didn’t have a full story are mostly bullshit.  So, another problem that’s going on.  Anyway, we’ve been on this topic for a while.

Kathryn Rubino:  The first amendment is first for a reason.

Joe Patrice:  Oh, yeah.  But you know, deep down –

Kathryn Rubino:  It actually is a first moment thing, though.

Joe Patrice:  Sort of. I mean, it’s private institutions, but whatever.  With all that said, we should probably talk about phones for a little bit.

Kathryn Rubino:  Somebody should get that.

Joe Patrice:  Yeah, but we don’t have time.  So, we should have some professionals, not just to get that while we’re doing the work that we need to do, but also to do all the important onboarding stuff that needs to happen.  So, let’s hear from our friends with Posh.

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Joe Patrice:  All right.  So, what’s up with in-house counsel?

Kathryn Rubino:  Well, there was a story that we covered last week about in-house counsel at BNP Paribas in London, the legal head for debt and equity, Benedict Foster, was announced that he was retiring, but not kind of.  Let’s all have, like a farewell.  It was following an investigation into some questionable comments that he had made about an Asian colleague, about an Indian colleague, and also because he referred to his female managers as the C word.  Hard C, hard C word, not great stuff.  They did an investigation internally and said while the terms and stuff was inappropriate, they cleared him of racist intent.  I don’t know the necessity of all that, but it was finally announced last week that he was retiring from the French bank.  But it appears to be a quickie situation since the position has been left opened and they said that they are looking for someone to fill the position as soon as possible.

(00:20:22)

First of all, don’t call people that you work with in any capacity offensive nicknames.  That shouldn’t be too hard.  But what I think was particularly interesting in this case is some of them were utterances spoken words, but several of them were written down in emails.  So, you would think for an attorney, that would be a particularly strong no, no, but I guess not.

Joe Patrice:  That’s no good.  Wait.  I’m still glazed by this.

Kathryn Rubino:  It was inappropriate to use the nicknames, but his intent was not racism.  He wasn’t trying to racism.

Joe Patrice:  He wasn’t trying to racism.  Okay.

Kathryn Rubino:  That appears to be what the statement was, although a lot of this is pulled from internal message boards that our friends at RollOnFriday have some sources there that they’ve published.  But, yeah, that’s what it comes down to.  Stop with the questionable nicknames.  And one of them, he said, was like a rhyming slang effort as opposed to racism and stuff like that.  But it seems to me nicknames are great and they are a way to make yourself closer to your colleagues and whatnot.  But there’s lots of things you can use ethnic names that don’t necessarily reference folks’ anatomy or racial or ethnic background.  Those parts of people don’t make them the focus of the nickname.  Make it about something that is unrelated to any protected class or category.  It doesn’t seem hard.  It doesn’t seem like a challenge.  Otherwise, stay away from them.  Maybe you’re not meant to be best friends with every single person you work with and instead just treat them with general respect and the job will be easier.

Joe Patrice:  Yeah.  This is the thing that comes up a lot is folks who feel familiarity, gives them a license to do things when they are not actually all that familiar with the people.

Kathryn Rubino:  I mean, I think it’s also interesting, and I don’t have a clear structure of the bank of exactly who reported to who or any of that kind of stuff.  But particularly this is the head of a department.  So, pretty high up, often in a position of authority, whether it’s over.  And some of them were, in fact, in reference to his managers.  So, they went the other direction as well.  But I think particularly when you’re in the position of managing folks, you have to be aware of the way that you’re presenting yourself and you’re like, oh, so they never objected to it.  That puts a lot of bonus on folks to have the comfort to say, hey, stop, that’s not comfortable.  You shouldn’t have a nickname for me that references my ethnicity.  That’s not okay.  And it puts a lot of onus on the people who are being potentially victimized here.  And maybe instead you just need to be a little bit more conscious about the ways you choose to refer to your colleagues.

Joe Patrice:  Agree.

Kathryn Rubino:  I would think that that would be true of any management level position in a large bank like this, but particularly when you’re talking about someone who’s on the legal team, it is shocking to me.

Joe Patrice:  I mean, this is why you and I have only referred to each other in the height of respect at no point.

Kathryn Rubino:  Never.

Joe Patrice:  Yeah, that’s fair.  And that’s why we’re more functional as an organization.  So, with that, let’s close off with a little bit of a discussion of a story that did really well last week about a horrific series of events.

Kathryn Rubino:  Oh, joy.

Joe Patrice:  It’s a thing.  So, this case comes to us from Illinois.  There was a town in Illinois that decided that an elderly couple, a couple of 80 year olds who had some lawn chairs outside, which they used during the pandemic to chat with people when they would come over socially distanced and outside the town, decided in particular, the mayor, as it turns out, at least according to all the evidence that we’ve seen so far.

(00:25:05)

The mayor decided that they didn’t like this and began issuing tickets like $500 tickets for them having –

Kathryn Rubino:  For having –

Joe Patrice:  For elderly people having lawn chairs.

Kathryn Rubino:  That seems like –

Joe Patrice:  The interesting thing is the more you dig into this this is not one of those stepper(ph) neighborhoods where like everything has to be perfect –

Kathryn Rubino:  And this not an HOA.

Joe Patrice:  It’s not like an HOA situation –

Kathryn Rubino:  — versus like a town.

Joe Patrice:  In the opinion, there’s discussion of all these other houses that have all these other things all over the place that got no charges.  As it turns out, there’s a couple of tickets for $500 when their adult son said, hey, maybe don’t ticket my parents this way, the town went bonkers and started ticketing them every day.

Kathryn Rubino:  Counter, what if we ticket them more?

Joe Patrice:  So, ultimately, it reached about $30,000, they put a lien on their house and at a hearing that was surreptitiously recorded, the mayor went into something of a racist tirade against the adult son.

Kathryn Rubino:  And now we figured out why it happened.

Joe Patrice:  It becomes a whole deal but to give it a legal angle obviously it’s legal but to give it a legal angle, I want to give a shout out Judge Steven Seeger of the Northern District of Illinois — this is not the first time I’ve written about how magnificent he is at –

Kathryn Rubino:  Real part of the phrase.

Joe Patrice:  Yeah, he’s developed in his short time on the bench a real knack for fun opinions even if the subject matter is not fun.  Early on in this opinion he has the line if the reader is thinking that things have at this point gone completely off the rails, buckle up because the ride is not yet over and that truer words were not spoken.  That was on like page two and as I got further and further into this opinion, I got more and more gobsmacked by what was going on.

He really slow plays the horrors that are happening.  He starts really ripping the mayor as time goes on, that’s when Mayor Serpico completely lost it, he lost his cool, he lost his temper, and if he has any ability to express himself without using expletives, he lost that, too.  This is another one.  This judge, you got to give credit where it’s due.  This is some top-notch writing.  I just quoted a couple of things, but there are so many more littered throughout this opinion that are fun and interesting, even with a horrible set of circumstances.  Ultimately, what this opinion decides is it rejects.  It grants in part and rejects in part, but rejects mostly the town’s Motion to Dismiss and more or less lets the complaint go forward.  I think the point of this opinion is to signal to the town that maybe the fact that this is going they may want to –

Kathryn Rubino:  We settle in.

Joe Patrice:  They may want to get out of this.  There’s like a default judgment entered at one point because the elderly people wouldn’t show up in person during the height of the pandemic.  It’s all bad.  So, I encourage people to check this thing out.  In addition to being well written, it is one of those restore faith in the court’s moment.  These are the sorts of issues where you’re like, oh, good.  Thankfully, there were federal courts there.

Kathryn Rubino:  It’s always good to — it’s a more cheery note than usual on this podcast that we get to.

Joe Patrice:  Our job is to say that everything’s broken all the time.  It’s a job that we have –

Kathryn Rubino:  Not untrue.

Joe Patrice:  Yeah.  We have a lot of ammunition to say that.  So, it is nice to have a feel good story where a judge actually stood up and said, no, you don’t get to do that.

Kathryn Rubino:  Hold the phone.

Joe Patrice:  Yeah.  Anyway, that was –

Kathryn Rubino:  That would have been a better transition.

Joe Patrice:  Hold the phone.  Yes, it would have been.

Kathryn Rubino:  Live and learn.

Joe Patrice:  Yeah.  So, I think that’s it.  Thanks for listening, everybody.  You should be subscribed to the show so you get new episodes when they come out.  You should be giving it reviews, stars, write something.

Kathryn Rubino:  It helps the algorithm.

Joe Patrice:  It helps the algorithm know that you’re listening.

Kathryn Rubino:  Other people find us as a lead podcast.

Joe Patrice:  Yeah.  What else should they do?

Kathryn Rubino:  Follow me on Twitter.  It’s at kathrynI.  K-A-T-H-R-Y-N, numeral one.

Joe Patrice:  Yeah.  I’m also at Joseph Patrice.  You should be listening to the Jabot, which is Kathryn’s other podcast.

Kathryn Rubino:  What’s the other show that you’re on?

Joe Patrice:  Legal Tech Week Journalist Roundtable.

Kathryn Rubino:  Regular listeners know you don’t always have the full mastery of the title of the other shows.

Joe Patrice:  Regular listeners aren’t listening this point.  Anyway, so –

Kathryn Rubino:  Missing the golden hour.

Joe Patrice:  Yeah.  You should listen to the other shows by the Legal Talk Network.  You should read Above the Law so use CDs and other stories.  You should check out our friends from Posh.  I think that’s everything we’ve got.

Kathryn Rubino:  Peace.

Joe Patrice:  All right.  Bye.

[Music]

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