Another Bar Exam In The Books

Episode Notes

Transcript

Joe Patrice:

Welcome to Thinking Like A Lawyer. I’m Joe Patrice from Above the Law, and we are joined as always by Kathryn Rubino.

Kathryn Rubino:

Hi friends.

Joe Patrice:

And Chris. Williams.

Chris Williams:

What it do?

Joe Patrice:

We are all editors at Above, the Law, and we get together every week to talk about the big stories from the week that was in legal.

Kathryn Rubino:

There you go. That’s not that hard.

Joe Patrice:

See how nice and tidy that intro was as opposed to our usual chaotic.

Chris Williams:

That introduction was terrifying. It sounded like, I dunno, I haven’t gone to Catholic school for a long time, but I went to a Catholic kindergarten and I remember the nurses, I mean, not the nurses, the nuns, different. Different people. Different people.

Joe Patrice:

Very different though. I think on PornHub, there are channels for both. I don’t know.

Chris Williams:

I mean, either way they’re attending to the body of Jesus, but I remember when they approached and had that calm voice, I was like, I’m about to get beaten. I’m about to get beaten. So sorry for all the trauma of everybody listening to Joe’s calm, soothing voice. It’ll never happen again. Kathryn and I will get back to interrupting.

Joe Patrice:

All right, well, hey, with all of that, fairly disturbing in every way, intro handled, we should do what we usually do, which is begin with a little bit of small talk,

Kathryn Rubino:

Small Talk.

Joe Patrice:

How’s everybody doing?

Kathryn Rubino:

I’m doing pretty good. My baby is walking.

Joe Patrice:

Ooh!

Kathryn Rubino:

That was a new development. She’s not advanced in the walking stage. I am resisting saying she’s delayed or behind because everyone’s on their own path and journey, and I’m trying really hard not to be as agro and managing as my instincts would lead me to be. Instead say, she’s doing a great job. She’s 15 months and just taking her first steps, but it’s going to be fine.

Joe Patrice:

So I don’t understand children all that much. So by behind you’re saying her a hundred meter time is like a ten second, 11 second.

Kathryn Rubino:

I appreciate that. But no, the majority of kids are usually walking by their first birthday. This is a few months after that. It’s okay. She’s going to be fine, but it’s a little bit later in her life than other people tend to be. Isn’t that a very balanced, I want some Congratulations for trying to not be freaking out about this.

Chris Williams:

Well, isn’t balance the issue?

Joe Patrice:

Yeah, I was going to say I was going to do the same. It’s all about balance.

Kathryn Rubino:

That’s fair. Maybe that’s why it took her so long. Mom is a crazy person.

Joe Patrice:

Sounds good to me. So that’s very good news. What else is going on? I played with Power Tools this weekend. Look at that. I have all my fingers left.

Kathryn Rubino:

Listen!

Chris Williams:

Do the power tools have names ?

Joe Patrice:

Uh….

Kathryn Rubino:

Pointy and Sharpie.

Joe Patrice:

Pointy. Sharpie. That’s what I spin.

Chris Williams:

Spinny is the name of a hammer.

Joe Patrice:

I’m not really an expert in ’em, but I’ve been calling them Broom. Broom.

Chris Williams:

Yeah, as you should.

Joe Patrice:

But yeah, no, did a little bit of crafting there and so that’s…

Kathryn Rubino:

Nice crafting. Did you create a thing?

Joe Patrice:

No, I destroyed.

Chris Williams:

Oh.

Joe Patrice:

That is a form of experimental art

Chris Williams:

Too. I will be honest in the vacuum. If Joe was talking about crafting on a small talk segment, I would’ve assumed it was beer.

Joe Patrice:

It’s interesting. Yeah.

Chris Williams:

Did you ever have a crafting phase?

Joe Patrice:

I have not.

Kathryn Rubino:

I feel like you think it’s entirely too pretentious.

Joe Patrice:

I do kind of find it pretentious. I don’t love, I don’t love beer. At least it’s fine. But of the alcohols, it is towards the bottom of my list. And craft beer in particular, it’s number one for me because here’s the deal, we don’t need everything in the world to be an IPA. Just throwing that out

Kathryn Rubino:

There. Well, I don’t like beer. I like beer.

Chris Williams:

I’ll say it.

Joe Patrice:

Yeah, I don’t either.

Chris Williams:

I don’t like them.

Joe Patrice:

Why do we do this?

Kathryn Rubino:

I was going to say I like beer, but I dislike IPAs and I think that the trend towards more aggressive IPAs has really been problematic. But listen, I’m a simple girl. Give me a Miller Light. I’m a happy chick. It doesn’t take much.

Joe Patrice:

Yeah. You know who should sponsor this show? Is Miller? Me? Yeah, no. There we go. Let’s get that

Kathryn Rubino:

Feel going. I’m providing opportunities here.

Joe Patrice:

Yeah,

Chris Williams:

These legal musings are bought to you by the smooth taste of Miller Life. Right.

Kathryn Rubino:

So refreshing.

Chris Williams:

I feel like I’m at a frat again. No,

Kathryn Rubino:

I wish your weekend, Chris.

Chris Williams:

It was good. Speaking of frat, I actually went to a concert, so if everybody was in their fifties and sixties, so I went to Virginia and I saw Chicago Play Live, which I didn’t really care for, but they’re a great band power to them.

Kathryn Rubino:

There’s a lot of songs that you don’t even realize. You’re like, oh, that’s them.

Chris Williams:

I like the one song. They were like, Chicago. Chicago. No. Okay, that’s not an actual Chicago song. Anyway, I

Kathryn Rubino:

Was like, I am not.

Joe Patrice:

It’s hard for me to say sorry. I don’t think that’s them.

Chris Williams:

Yeah, it was actually a song by Wyoming, but no, so saw Chicago Live and then the band. I was really there for Earth, wind and Fire, and that was cool. September came on, everybody yelled it, and by everybody I mean me. So if I’m little, of course it’s a great song. It’s phenomenal.

Kathryn Rubino:

It’s such a great song. It is by far the best soundtrack. If you ever ride Guardians of the Galaxy, the Ride in Epcot, they have different songs that can play and one of ’em is September, and I’ve had a couple of different songs play in September, not just because I am in fact a September baby, so feel like a kinship towards the song, but it’s great.

Chris Williams:

Also at the end, both bands came out, so there were a lot of people on stage, and one of my favorite moments was, I don’t know what song the lead singer would sing in probably something by Chicago, but the people with guitars were riffing on why My Guitar Gently Weeps and I was like, the singer not know what’s going on. But it was great because I’ve loved, I love that song, not from the Beatles, but because I think Prince was at a Paul McCartney tribute or something Fucking Killed It. Did that. Stole the show as one does. So I picked up on it immediately and then they were like, the guitar was over and then got back to Chicago Wing. But it was a fun show. It was really good.

Joe Patrice:

That’s apparently a thing you can use AI to do. You can say like, what melodies can I play over the chords from some other song and it will spit out a, if you wanted to be playing this play by my guitar Deadly Leads and sing this song by Chicago, you can do that. It’s one of the things that it can do other than hallucinate cases that get people in trouble when they write briefs based on them. Did

Kathryn Rubino:

You just make this about legal tech?

Joe Patrice:

I did. I turned it into Legal Tech. Isn’t that exciting?

Kathryn Rubino:

I think we defined that. Wordly.

Joe Patrice:

Yeah, ly. All right, everybody. Hey,

Chris Williams:

I can define it however you want.

Joe Patrice:

Alright, let’s put a stop to this. In turn to our first topic of the day, the bar exam.

Kathryn Rubino:

Wow, that was unnecessary.

Joe Patrice:

Well, I mean, sure, but a lot of what we do around here is unnecessary. That doesn’t mean we aren’t doing it for you, the listener. Listen, everybody the bar exam happened last week and as bar exams go, it was not completely disastrous. We have definitely had ones where the entire testing mechanism goes down. We’ve had ones where people are being frozen to death in subhuman conditions.

Kathryn Rubino:

Well, we did hear a story. One of the things we do here at Above the Law is collect bar exam horror stories. So if something terrible happened to you during the bar exam, please, other than

Joe Patrice:

The bar exam itself, which is also a horrible thing to happen to you.

Kathryn Rubino:

Sure, sure, sure. But unique things, an interesting story. You can always feel free to email them to us at [email protected]. But one of the things that people talked about this year was at one of the testing centers, it was very warm, as overcrowded as it’s meant to, it’s designed to be pretty full, and there was only two water refill stations, and the lines were so long before the second half of the exam that for day two, the proctors mandated that you were not allowed to use the water fountains. You just had to bring it in or raw dog it. That was it.

Joe Patrice:

Well, good.

Kathryn Rubino:

It was also a very warm environment, which obviously supercharges all of this.

Joe Patrice:

Look, nothing bad ever happens by denying water to people. That’s

Kathryn Rubino:

Geneva invention. Be dimm.

Chris Williams:

I heard that Kaplan is trying to make their bar prep conditions more similar to the actual test. So next year they’re going to have all the classes in prison.

Kathryn Rubino:

If you can do it here, you could do it anywhere.

Chris Williams:

Be a lawyer 25 to life.

Joe Patrice:

So the bar exam, horror stories, we have seen some of them, not a ton, which don’t want to give them a lot of credit, but it seems like fewer massive screw ups happened this year than most years. So it’s just a relativity thing. It’s still bad. I am noted actually, if you ask ai, I once asked Chat GPT when it first came out, like, who’s Joe Patrice? And it spit out a whole thing like he’s a vocal bar exam critic. And I’m like, I guess I am. I didn’t really know that that was what I was defined by. But those of us who are vocal bar exam critics, I don’t think it’s a particularly good test for a lot of reasons. If you’ve never heard any of this before, it is a one-time test for a profession that goes on forever. It is a doctrinal test in a generalist doctrinal test in an industry that’s entirely made up of specialists, it is taken on a closed book memory based, which is what lawyers tend to call malpractice.

Otherwise, very few institutions make their test for doing the job. How do you commit malpractice? But for some reason we do. That said one thing that came out of theBar exam that I thought was somewhat interesting is the NCBE is the organization that writes theBar exam for everybody. Currently, there’s a movement out in California to switch it over to Kaplan, which is exciting. Some competition would be nice because monopolies generally bad. In this instance, the NCBE holds this monopoly. It is a nonprofit organization that has somewhere in the almost $150 million in assets as your usual nonprofits do. It is run by a woman who it is based in Wisconsin, a state that famously what’s famous about Wisconsin, legally,

Kathryn Rubino:

They don’t have a bar exam.

Joe Patrice:

True. I was going to say cheese, but also they don’t have a bar exam less for

Kathryn Rubino:

The legal profession.

Joe Patrice:

Fair. They don’t have a bar exam. Because if you Yes. Go

Chris Williams:

For the listeners at home, and I thought I’d never say this sentence, but what is the legal significance of cheese?

Joe Patrice:

Isn’t the legal significance of cheese? No,

Kathryn Rubino:

You mean cheese product. See, right there you

Joe Patrice:

Say, right, you pick up American cheese, you know what it cheese product because it’s not really cheeses, not cheese, cheese. That’s the sort of legal regulatory stuff that’s so important, whatever. But

Kathryn Rubino:

We don’t have anymore because Chevron’s gone, but let’s

Joe Patrice:

Continue. Right? Right. So it is based in Wisconsin. It is run by a Wisconsin lawyer who has of course never actually taken a bar exam

Kathryn Rubino:

Because, because in Wisconsin they have a diploma privilege, which means if you graduate from one of the Wisconsin law schools, they assume that’s good enough.

Joe Patrice:

Right? They decide that having the iterative testing over the course of three years in law school where you’re covering these subjects and getting graded repeatedly. If you do all that and are successful at that, that means you probably have learned how to be a lawyer madness, at least to the extent that any exam can teach you to be a lawyer as opposed to just toiling as an associate for a while. Anyway, the person who is the primary lobbyist for let’s have a bar exam, because if we do not have a bar exam, pure chaos ensues and tears down The pillars of justice is someone who in fact has never taken a bar exam, which somewhat undermines the argument that it is so necessary. There is a hashtag that showed up on Reddit. Several of the Redditers who had just taken theBar exam started a hashtag that they wanted to get trending, make Judy take theBar, which I think is a very cool idea. If you’re going to make the argument that the world needs to take this exam, it is the most important thing ever. And also that to claim that it is a test of minimum competence, which it is not in the way that it is administered, but that is their claim, that it’s a minimum competence test. If it’s a minimum competence test, then she should have no problems passing it at any point. So make her take theBar, she will not.

Kathryn Rubino:

I can’t imagine that’s going to happen.

Chris Williams:

My immediate take is counter to the story. I wish the direction they took was make Judy spread diploma privilege.

Joe Patrice:

Well, right. She’s not going to do that.

Chris Williams:

She’s not going to do that. But if you wanted to be anchored in, oh, the people have to take this, I mean, I get that she’s the head of the the thing, but that’d be something more like NCBE, but that’d be something to have more focused on. California, they have the highest requirement to pass, but with her case, it makes total sense why she hasn’t taken theBar. I dunno.

Joe Patrice:

I actually think Delaware is the highest really the reason for Yes. Well, for good reason. That is the most protectionist possible jurisdiction because every corporation is there. So anybody who has to go, they

Kathryn Rubino:

All have local counsel.

Joe Patrice:

You have to get local counsel to do that. So getting that is the holy grail. That makes

Chris Williams:

Sense. See, what you saw was me being wrong, was actually me giving you an opportunity to inform our listeners.

Joe Patrice:

Absolutely. Now, the California exam used to be the least pleasant one to take when it was a three day exam. They’ve at least got over that, and then when they get the new Kaplan test, maybe it will be even better. Meanwhile, the NCBE is trying desperately to come up with a new test to respond to the criticisms. It says that the test is not any good. And what are they doing, Chris? To get that new test ready to go?

Chris Williams:

Well, one of the things they’re doing to make it a better sell is paying the test takers.

Joe Patrice:

There you

Chris Williams:

Go. They’re paying about 1500 bucks to anybody sitting to take the new gen test, and the good news is it’s spare cost two days and it’s nine hours. So it clocks out to be about $165 an hour, which is pretty good money. Not bad. It’s not bad.

Joe Patrice:

So this of course suggests it means that they are in the beta testing period for the next gen bar exam that’s coming. They’re actually having people take it to see how it goes, which is encouraging. It is not particularly encouraging that we’re this close to when they’re supposed to switch over to the next gen bar exam still and we’re still beta testing. That is an issue that we wrote about recently that a lot of the people in, a lot of law school educators who are in charge of teaching people to be ready for theBar are nervous. Absolutely freaked out by all of this. But yes, so there is a financial opportunity out there if you are a law student, to get yourself some extra bucks and some practice on the new bar exam. Alright, well with all of that said, well, I guess, oh no, there’s one other,

Kathryn Rubino:

Yeah, quick bar side story. The other major thing that’s happening for even non-lawyers of course, is that the Olympics that’s been going on over the last, the Olympics.

Joe Patrice:

Oh no, I know. I was just messing with you. Yeah.

Kathryn Rubino:

Oh well, considering what you messed with. So the Olympics is on and there’s always kind of that pain when you’re sort of studying or taking the bar exam and you have to miss out on Simone Biles or something fun like that. But it was particularly harsh for one University of Florida law grad Autumn Fink is the sibling of Bobby Fink, who is an Olympic swimmer, and she actually had a miss on her brother’s performance of the 800 free, which he was defending a gold medal and he did not capture the gold medal in that event. Kapa got a silver, but she had to stay home to take the bar exam. Didn’t even know the results of the swim until she was done with day one. But there is sort of a coda that happened after I wrote the story, which is that he also had a second event, I think it was the 1500 and he won gold and Autumn as well as their other sister Summer were able to actually go to Paris and see that. So that is the best possible bar trip that I can imagine is going to Paris to see your brother win a gold medal. That’s like a plus bar trip.

Joe Patrice:

How irritated must that family have been when they had a boy, they’ve got summer and autumn and they were all ready to go with winter and then all of a sudden they’re like, I don’t think this will work here.

Kathryn Rubino:

Well, it’s actually kind of really interesting. Summer’s name I think is actually Ariel Summer, but she goes by summer and Autumn’s name is Autumn Sky. So they had a real theme going, so they might have just been out of thoughts by the time they got to, and Bobby is in fact the youngest of the siblings, so they just like, okay, we got nothing.

Joe Patrice:

Yeah, mix this up, you just got a theme going and then all of a sudden you’re like, oh Bob.

Kathryn Rubino:

Indeed. You

Chris Williams:

Think they ever went? Dang it. Bobby

Kathryn Rubino:

Almost certainly had

Joe Patrice:

To. Alright, well one thing that came up last week, well, no, a couple weeks ago now, Joe Biden announced that he was going to talk about term limits. He then announced those last week while we were still recording, so we weren’t able to talk about them. We assumed we would get more details in his announcement. We did not really get any more details.

Kathryn Rubino:

He wrote an op-ed today

Joe Patrice:

Actually. Yeah, just kind of a, here’s some thoughts. Generically speaking of what we should do,

Kathryn Rubino:

And I think it’s a try threefold kind of proposal, which is term limits, code of ethics and a constitutional amendment to undo the presidential immunity decision that the Supreme Court had this term.

Joe Patrice:

So let’s break these down kind of in reverse order constitutional amendment to overturn Trump the United States to basically say that if you were, for instance, to encourage your followers to murder the vice president, you might be able to be criminally charged with that. You wrote that there is indeed a legal luminary out there who agrees with that stance.

Kathryn Rubino:

Yes, yes. Retired judge Michael Ludic came out and said that this was actually an awful decision that undoes not just you as a precedent, but the very originalist intent goes back to sort of the very founding of the country and undoes all of this for this very kind of craven reason and would very much be in support of a constitutional amendment. Unfortunately, the actual process of amending said constitution is quite onerous.

Joe Patrice:

So maybe we’ll jump over that. We’ll jump over ethics just to say an ethics code. Alito has already said he thinks that’s unconstitutional.

Kathryn Rubino:

He’s probably wrong,

Joe Patrice:

But he is wrong. Unfortunately. They get to decide it, and so they are going to say that any kind of rules that prevent them from taking bribes and fancy trip gifts from people with a business before the court is something no one could stop them from doing, which is problematic and also probably not what the founders would’ve intended, but

Kathryn Rubino:

Who cares really, Joe, what the founders think. Right.

Joe Patrice:

So Constitu-. Exactly. So constitutional amendment though, that brings us to the term limits question, term limits, of course being the most, in some ways the most long-term and aggressive of the proposals that Biden has put out there. This is not for those of you who are familiar with our former colleague Ellie Mystal’s work. This is not court expansion and court packing, which is what he has supported a long time of just add enough liberals that the liberals take over the court, which is his proposal. This is a slower term situation. It is one that’s aimed a little bit more towards creating a scenario where justices are not sitting kind of exerting dead hand influence of long gone administrations. I mean, George HW Bush is very, very long gone, and yet Clarence Thomas is still on the court. Clarence Thomas got on the court when Designing Women was a popular TV show. We are so far away from that that it is weird that he yields as much power as he still does and folks in between. There are no Clinton appointees and that’s a presidency that happened after that. So that is a problem with the system that term limits is designed to fix. Right.

Kathryn Rubino:

You shouldn’t have to be like an actuarial in order to make the correct Supreme Court pick.

Joe Patrice:

Right. It also. Yes, exactly. And one of the biggest issues with a non-term limit world, putting aside the nakedly political of let’s just put more people on to make them decide the way we do there is the problem that life tenure has created a weird talent gap. You do not put on the court people who are very, very competent, but maybe in their early sixties because you don’t want that. Because the way you maximize your pick is you put the youngest possible person on there. That means that there’s a lot of good talent that doesn’t get on and there’s a lot of bad talent states and also freezes talent, right? Clarence Thomas should not be on the court anymore and hey, maybe the conservatives get to replace him with somebody a little bit younger or the liberals either way. This is somebody who is right,

Kathryn Rubino:

He gets replaced by James Ho. That doesn’t change necessarily the ideological composition, but it probably makes

Joe Patrice:

Sense. But yes, it does however, create a situation where talent is better distributed. We can use Ruth Bader Ginsburg as the liberal version of this. The way in which these people are sticking around forever is preventing good people from ending up getting on the court for a totally arbitrary reason. So term limits is a good way to deal with this. Bringing us back to our transition to constitutional amendments, the counter argument is, well, you need a constitutional amendment because it says they can serve for life, which it doesn’t.

Kathryn Rubino:

Good behavior is …

Joe Patrice:

Well, exactly. It doesn’t in fact say, serve for life. It says in good behavior. There is an argument that historically the courts have said that means life. There’s originalists who say, or people who have at least looked at what originalists claim they care about and said, that’s actually not what it meant at English common law before the revolution. But whatever that said, the most popular proposal for term limits does not in fact require you to kick anybody off the court. It doesn’t actually term limit, it just changes the jurisdiction of the court in a way that puts the younger people or the more recently appointed people in the position of deciding the most important of those cases.

Kathryn Rubino:

Yeah, I mean I think it’s really interesting because both of those things that actually compose term limits are not actually imposing term limits, right? It’s the jurisdiction stripping and the expansion. It is a sort of expansion of the court, right? Because it would say that every 18 years somebody has to move to this kind of lesser or not hearing as many cases version of Supreme Court Justice. They would have to be more Supreme Court justices, which would also be more fair in the sense that every term would require two nominations.

Chris Williams:

Could you elaborate on what you meant by changes so that the younger justices have more authority in determining decisions?

Joe Patrice:

Absolutely.

Chris Williams:

I thought it was decided by tally 5, 4, 6 3. What would age have to do with this?

Joe Patrice:

Well, so what would happen here under this situation is you would get rid of the cap on Supreme Court justices. It would not be capped at nine. It would be regularized appointments. So there would be a new one appointed every two years at that point, every two years there would be a new justice those justices would hear. The Constitution actually doesn’t create a Supreme Court to hear everything. The constitution in its actual text says the Supreme Court has to hear cases between the states and cases involving ambassadors, and then beyond that, it hears appellate cases with such exceptions and regulations as Congress shall create. So Congress actually has the ability to limit what cases be and limit both the jurisdiction that they have to hear those cases and regulate how they hear those cases. So the argument would be we start adding justices every two years. Those justices now are full on Supreme Court justices for all the constitutionally required jobs of the Supreme Court, which is just those cases between states and ambassadors and stuff. And all of the other stuff would then be regulated to have Congress say

Kathryn Rubino:

Only the nine most recently appointed would hear all of the stuff cases, all the other stuff that aren’t mandated by the Constitution, and instead created by statute.

Joe Patrice:

This then would put it in the statutory level, not the constitutional level. So you wouldn’t actually need a constitutional amendment. So the argument goes, that said, obviously that’s something that the court might not want to agree to, and at that point you threaten them with packing because nobody argues that in any credible way that packing isn’t legal.

Kathryn Rubino:

It may not be desirable for political reasons,

Joe Patrice:

May be a horrible, substantive policy.

Kathryn Rubino:

Correct. But it is certainly constitutional,

Joe Patrice:

Right. So you say, look, here’s what you’ve got to approve. Feel free to welcome 30 new liberal colleagues. If you don’t agree to it theoretically, that would fix it. That’s the thing that always bugged me. FDR always gets a lot of flack for his court packing scheme. That didn’t ultimately happen and everyone’s always like, it failed. And I’m like,

Kathryn Rubino:

He got what he wanted though. He got what he

Joe Patrice:

Wanted. That’s the thing. It was a negotiating tactic. It was, do what I want you to do here or else I’m going to add people. And then they did, and then he didn’t do it. That’s not a failure.

Kathryn Rubino:

That’s how things work. That’s a W.

Joe Patrice:

Yeah, and that’s the world in which theoretically things should happen. The turn limits is very much in its infancy, but just announced this. That said, Harris has generally echoed support, and it does seem like this is now the baseline opinion of democratic candidates going forward, which is a good sign for the country. In the past, Republicans have agreed to this idea. They currently don’t, but I wonder, theoretically they could come back if they have principles to stick adhere to, they could come back.

Kathryn Rubino:

Oh, I thought that was a joke. I’m sorry. Yeah.

Joe Patrice:

I mean, look, I’m unabashedly more on the left side of it, and I was calling for term limits back when the only people calling for it were Mike Lee and Ted Cruz. I was very much on their side. Nobody joined me then. I am still consistent today, so there you go. I guess I shouldn’t say nobody like Lawrence tribe was already writing about it too, so there were academics on it, but yeah. Okay. So have we exhausted term limits? Everybody prepared? We have to talk about that. You can now talk about that at your Coex cocktail party and understand the distinctions all. Well, we’ve run a little bit long. Let’s bang through this. Jonathan Turley is back in

Kathryn Rubino:

The news still employed by a major law of

Joe Patrice:

Jonathan Turley’s back in the news, what the professor from George Washington Law has done this last week. He also talked about term limits and said some stuff, but what really got me about this week or last week, he came out and talked about free speech and how under threat free speech was, which is a very serious issue. Of course, we all agree that would be very serious. Here’s what he thinks his free speech being threatened means. There is a private organization that Steve Brill is involved with the old American lawyer honcho. He has an organization that looks at websites and just rates them based on the level of misinformation and deceptive.

Kathryn Rubino:

I mean, in a world where media literacy is increasingly important, I think that that makes a lot of

Joe Patrice:

Sense. And then with this information where he says, Hey, this website tends to have a bunch of factual errors on it. This they then provide as a service to potential advertisers who don’t want their name to be attached

Kathryn Rubino:

To that. Don’t want something embarrassing put out with clear lies like maybe a lie. I don’t know. Joe Biden was vice president in 2018,

Joe Patrice:

Or a lie like Martin Luther King was never arrested at any point in the civil rights movement. That’s proof that they were better than the vaccine world. Yeah, yeah. No, two totally random examples that have nothing to do with things that Jonathan Turley has in fact said incorrectly. So yeah. So this organization is now looking at turley’s website and Turley views this as a profound attack on free speech that someone might, some private organization might point out to another private organization that he might be not telling the truth.

Kathryn Rubino:

Yeah, it’s almost like the whole First Amendment was a real challenge for me. It didn’t get that far into reading the actual constitution. I mean,

Joe Patrice:

The first amendment to remind us of the text, it says that private companies shall make no rating system of bridging the right to collect advertising dollars.

Kathryn Rubino:

That’s how I’ve always understood

Joe Patrice:

It for sure. Yeah. Oh, it does not in fact say that it says none of these things, but it is telling that the Turley’s position here, he totally doesn’t even have advertising on his website. So I don’t even understand why he cares one way or the other, but I guess he cares to the extent that the websites he publishes his stuff on and news networks he puts it on, do in fact have those. This is an ongoing thing out there that in free speech conversations where you see Elon Musk do this a lot actually too, where they claim that private people choosing not to listen to them is a breach of free speech, which is not how free speech is generally.

Kathryn Rubino:

Yeah, for sure. Not conceived

Joe Patrice:

Of. Indeed. One might argue that if free speech were conceived that way, it would cease to be free speech as the whole point of free speech is that you have the right to ignore it or disagree with it. It just kind of creates a top-down mechanism, an authoritarian mechanism where we all have to be passive bullshit receptacles for whoever happens to have a platform that said, this is what he’s up to these days. That’s just your weekly crazy law professor catch up, I

Kathryn Rubino:

Guess I love that for us better than Amy

Joe Patrice:

Wax. Yeah. Amy’s not been doing much lately. She’s still in her case.

Kathryn Rubino:

I’m thankful. I’m

Joe Patrice:

Happy. Hey, look, I still, I haven’t looked in on her lately. Let me see what’s going on with her and get back to you all. So with that, are we done? Yeah,

Kathryn Rubino:

I think so. Sounds good to me.

Joe Patrice:

Hey, thanks everybody for listening. You should subscribe to the show so you get new episodes when they come out. You should be giving reviews stars, writing a few words about how much fun you have and how much you enjoy the trumpet sound effect, whatever it is, so that more people find out about the show. You should listen to The Jabot, which is Kathryn’s other podcast. You can listen to me on the Legal Tech Week Journalist Roundtable where we talk about tech stuff. I’m one of the panelists. You can also listen to the other offerings of the Legal Talk Network. You should be reading Above the Law, so you read these and more stories before they come out. You should be following us on the various socials at @ATLBlog, @JosephPatrice, @Kathryn1 at @WritesForRent. Over at Blue Sky, I’m Joe Patrice. I was able to capture that. There you go. So there we go. And with all of that said, I think we’re done for another week. Peace. Peace.

Continue Reading