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Welcome to Short circuit, your podcast on the

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Federal Courts of appeals. I'm your special host

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today, Ben

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an attorney at the Institute for Justice, and

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this is a special live edition at the

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Hogan Levels law firm. In downtown, Washington Dc.

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So I'd like to start by just thanking

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Hogan for their hospitality and having us here.

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I think that it's now becoming

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sort of a thing that every good law

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firm has to have, which is hosting a

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podcast for their summer associates and we're glad

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to be able to to provide that here.

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And this is a real treat for me

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because I'm gonna be on a panel here

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talking about 3 cases from the courts of

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appeals with my former and current colleagues.

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Because I was an associate at Hogan levels

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for about 2 and a half years before

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coming to I j, and so I'm excited

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to be back.

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Our 3 panel. We're gonna talk about cases

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today, are first, my current colleague, Kirby Thomas

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West, who actually, has an office directly next

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to mine at I j their headquarters in

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Arlington, and she's gonna be talking about authority

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first amendment issue for public school teachers.

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We also have Sean Mara, who's a partner

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at Hogan Levels in the appellate group. He's

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also a Twitter Long M and a repeat

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guest

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on

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the short circuit podcast podcasts. So we look

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forward to having him back to talk about

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maritime shipping and the car muscles that can

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arise from Matt.

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And finally,

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is another Hogan is a Hogan associate in

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the Appellate group and another former colleague of

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mine. Danielle

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Des Stem, who's gonna be talking about guns

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and standing. But before jumping into those exciting

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cases, I just wanted to give Sean and

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Danielle a chance to talk about you know,

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what is what is Hogan like? What is

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it like being in the Appellate group here.

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You know, we're we're happy to be here

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and we love to to hear about what...

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What happens in these have?

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Well, we're we're really excited to have you

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back ben, as I mentioned before we started

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taping. If you just wanna jump in in,

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like, bang out some brief while you're here.

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We'd love to have you back.

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But we're really, really excited to have short

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circuit with us and I who have

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both been someone that we've supported. I know

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through our mucous practice and others through some

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of the great work you've been doing in

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the 19 83 civil rights space.

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As I mentioned also, 1 of my greatest

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regrets as an attorneys that I once had

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to file a brief an opposition against the

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New Orleans

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tour guide licensing regime that I j challenge

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than that we defended. But although we succeeded

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in that particular challenge, it was still really

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great work that I j does. In both

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occupational licensing, forfeit

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and civil rights that is, really, I think

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can draw people together across the spectrum. Also

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really excited to have our summer associates with

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us, today, who have been doing a lot

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of really interesting and great work, shout out

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in particular to my team that will be

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helping a different libertarian organization, the Kay Institute

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file an ami brief in support of a

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section 19 83 plaintiff in the Supreme court

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this coming Monday, which has been a really

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fun

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opportunity for them to get to see a

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brief from, honestly, the very beginning of its

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conception through the outline to the drafting and

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all the way to the filing working with,

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your friend and mine, Clark Nellie from the

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Kay Institute.

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And Danielle, what's your practice like, what brought

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you here? Oh, what brought me here? I

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mean, it's been a while now. But, you

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know, if you talk to any Hogan person,

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I think we will always say the thing

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that brought us here is the people, and

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the thing that keeps me here is the

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people, and it's just been such a wonderful

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pleasure to work with Sean. And you for

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a brief stint while we overlap and everyone

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else in our group and broadly at the

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firm.

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I think our firm is just a really

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wonderful place to be a lawyer and to

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learn the practice of law, and I'm excited

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to be joining you on the panel here

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to today. Great. And speaking of people and

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people who like to make silence

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at home.

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Why don't we we talk about this fifth

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circuit today case that you're you're bringing to

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us today.

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Sure. So I'm gonna talk about pax and

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Versatile,

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a fifth circuit decision that they issued last

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month.

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And as Ben preview is a case about

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silence and standing, although it is really a

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lot more about standing than it is about

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silence.

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And the facts are actually comparatively simple at

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least as compared to the 3 cases you're

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gonna hear today.

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There's a federal law that has a long

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regulated silence

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by requiring individuals who wish to make 1

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for personal, non commercial use to pay tax,

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file a written application, and if the application

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is approved register the silence.

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In 20 21, Texas decided it did not

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like that law. And so it passed its

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own, designed to wholly displace the federal regime,

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The law at a silence that is manufactured

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in Texas and remains in Texas is not

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subject to federal law or regulation.

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Individual plaintiffs and the state of Texas sued

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seeking an injunction to stop the federal law

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from applying to silence that were made in

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Texas.

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So that's the background. But like I said,

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this case is really much more about standing

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than it is about silence.

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The district court found the individual plaintiffs and

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the state locked standing, and here is the

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part that may surprise you, the fit circuit

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affirmed. Found

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so just a couple of here to sort

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of set the table in terms of the

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standards for standing that we're working with.

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This is really about the injury factor requirement,

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which means you need an injury that's concrete,

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particularly and actual or imminent, rather than hypothetical.

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The case came before the court on a

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motion of some... Motion for summary judgment, so

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the requirements were more rigorous than if it

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was at an earlier stage in the proceedings.

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2 further wrinkles. The first is that this

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case involved a pre reinforcement challenge, meaning the

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individual plaintiffs were challenging the federal law. For

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it had been applied to them, and they

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were also seeking an injunction. And all of

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that combined generally raises the standing bar

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So to kind of dis it all, the

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plaintiffs had to show a serious intention to

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engage in conduct prescribed by federal law, and

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credible threat of prosecution in order to have

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standing.

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The panel was 3 conservative appoint t's,

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and they unanimously held that both the individual

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plaintiffs and the state's lacked standing.

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So for the individual plaintiff,

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I know those longtime listeners to the podcast

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are probably familiar with this, but since we

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have the summers in the room,

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typically, you would write a declaration. The working

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with the plaintiff and the lawyer, explaining how

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the law applies to you how you're gonna

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be hurt by this law in order to

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show why you would have standing.

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And I think it's worth quoting verbatim, what

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the individual plaintiff

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declarations said here.

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Quote,

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I intend to personally manage... Manufacture a silence

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from my own non commercial personal use.

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The silence error will be manufactured in my

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home from basic materials, without the inclusion of

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any part imported from another state, other than

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a generic and insignificant part, such as a

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spring, screw, nut or pin.

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It's

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that might leave you with a couple of

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questions?

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Like

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what kind of silence are are you planning

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to make?

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When are you planning to make that silence

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sir? Are you planning to comply with the

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Federal requirements to

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apply for

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permission to make the silence search to register

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it to pay the tax.

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They said absolutely nothing about any of that,

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and that is the fundamental basis on which

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the fifth circuit get held that they lacked

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standing.

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The fifth circuit gave 2 primary reasons for

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its conclusion as to the individuals. The first

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was that they never said they intended to

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do anything illegal.

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Federal law only prohibits making a silence or

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if you don't comply with the requirements, and

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the plaintiffs never said they were going to

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fore those actions or that they were unable

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to do them, like, if didn't have enough

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money to pay the tax or they were

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stat prevented from satisfying any of the filing

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requirements.

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They In the court distinguished between a case

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like this and cases where you have a

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blanket prohibition, which is comparatively common in the

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gun context.

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So a loss saying no 1 under the

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age of 21 can carry a firearm full

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stop. You don't have to do anything in

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advance to trigger the law. It just applies

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to you as long as you have a

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firearm.

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And the second basis the court gave was

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that they didn't give... The individuals didn't give

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enough detail to show a serious intent to

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make a silence sir such that any injury

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was imminent.

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And again, it looked at other second amendment

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cases, including 1 where the plaintiff talked in

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detail about the type of gun he wanted

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to buy, the dealer he planned to buy

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it from and the price.

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Basically, in those cases, the gist is that

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if not for this law, I would go

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by this gun today. And that was missing

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here. There was nothing sufficiently detailed about their

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imminent intended to make these silence.

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So that was the individuals But this case

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had a second plaintiff, which was the state

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of Texas.

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Interestingly,

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the law here actually required Texas to file

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complaint seeking to uphold the Texas law, asking

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for what's called the decor judgment, so declaring

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the Texas law. Is constitutional and legal.

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If any plaintiff petition to the state and

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asked them to do it, which is how

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the state of Texas got involved here, And

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I think you can actually tell from the

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brief the fifth circuit, that Texas didn't really

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think this case was all that worth lit

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because it devoted only, like, 3 pages.

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To Texas own standing arguments,

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but they were here, and they had to

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make them. So they put forth 2 bases

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on which Texas supposedly had standing.

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I'm gonna just pause and say a couple

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words again because we have the somewhere in

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the room about something called the Mel bar,

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which might not be familiar to everyone.

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So the Mel bar is a doctor that

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says states can't bring what's called a parents

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pat suit against the federal government.

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The idea is that when you bring a

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parents suit your suing on behalf of the

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citizens that you represent to protect their interests.

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But when you're suing the federal government, the

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federal government is supposed to be representing those

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same citizen interests, so the state can't really

272
00:09:46,868 --> 00:09:47,902
step into its shoes.

273
00:09:48,538 --> 00:09:50,605
There are some ways that you can get

274
00:09:50,605 --> 00:09:52,832
around this bar. However, by assert what are

275
00:09:52,832 --> 00:09:54,740
called Quasi sovereign and sovereign interests.

276
00:09:56,109 --> 00:09:58,184
So Texas invoked both theories, it's that It

277
00:09:58,184 --> 00:10:00,818
had a quasi sovereign interest in its citizens

278
00:10:00,818 --> 00:10:02,893
health and well being and a sovereign interest

279
00:10:02,893 --> 00:10:05,065
in the power to create and enforce its

280
00:10:05,065 --> 00:10:07,705
own legal code, but the Fifth circuit rejected

281
00:10:07,705 --> 00:10:09,945
both. These are both recognized ways get around

282
00:10:10,024 --> 00:10:11,705
Mel, but Texas just haven't done enough to

283
00:10:11,705 --> 00:10:12,504
show they applied here.

284
00:10:13,318 --> 00:10:15,307
I didn't have any unique quasi sovereign interest

285
00:10:15,307 --> 00:10:17,932
that the plaintiffs themselves couldn't assert, which is

286
00:10:17,932 --> 00:10:20,651
a requirement here. Otherwise, Texas is just sort

287
00:10:20,651 --> 00:10:22,951
of volunteering his tribute to use a popular

288
00:10:22,951 --> 00:10:23,451
phrase

289
00:10:23,983 --> 00:10:25,807
from the hunger games to lit those claims

290
00:10:25,807 --> 00:10:26,838
on its citizens behalf.

291
00:10:27,649 --> 00:10:30,206
And second, although there is a sovereign interest

292
00:10:30,206 --> 00:10:32,444
in enforcing your own legal code, the mere

293
00:10:32,444 --> 00:10:35,160
desire to I state citizens from federal law

294
00:10:35,160 --> 00:10:37,252
doesn't cut it. You have to actually set

295
00:10:37,252 --> 00:10:39,327
up a legal code, set up a program,

296
00:10:39,647 --> 00:10:41,882
administer that program, do something more than say,

297
00:10:42,201 --> 00:10:44,037
hey, hey, we don't like that federal loss,

298
00:10:44,277 --> 00:10:45,315
so it's not gonna apply in tech.

299
00:10:47,086 --> 00:10:48,922
So that is Packs and block.

300
00:10:49,800 --> 00:10:51,876
The plaintiffs have until early August to petition

301
00:10:51,876 --> 00:10:53,633
for re recurring on Bong, so it's possible

302
00:10:53,712 --> 00:10:55,205
This case isn't done, although

303
00:10:55,721 --> 00:10:57,785
if the attention given to these issues in

304
00:10:57,785 --> 00:11:00,008
the brief any indication, I think that petition

305
00:11:00,008 --> 00:11:01,436
is probably not forthcoming.

306
00:11:03,437 --> 00:11:04,871
But, you know, just a couple of thoughts

307
00:11:04,871 --> 00:11:06,623
about some broader trends that I think this

308
00:11:06,623 --> 00:11:07,738
case exe identifies.

309
00:11:08,693 --> 00:11:11,503
Longtime listeners and recent supreme court watchers

310
00:11:11,974 --> 00:11:14,288
we'll probably know that the fifth circuit has

311
00:11:14,288 --> 00:11:17,160
not been doing so well, particularly on standing

312
00:11:17,160 --> 00:11:18,995
issues in the Supreme Court recently.

313
00:11:20,447 --> 00:11:22,543
I counted them up, and I got

314
00:11:22,921 --> 00:11:24,995
9 fifth circuit cases on review this term,

315
00:11:25,713 --> 00:11:27,804
6 of which were reversed by the Supreme

316
00:11:27,884 --> 00:11:30,121
Court, and 5 of those 6 reversals were

317
00:11:30,121 --> 00:11:31,800
either unanimous or 8 1 votes,

318
00:11:32,439 --> 00:11:34,836
all written by conservative members of the court,

319
00:11:35,076 --> 00:11:36,515
Justices Thomas Kavanaugh,

320
00:11:36,928 --> 00:11:37,722
Roberts and Barrett.

321
00:11:39,311 --> 00:11:41,217
In the alliance for hip bureaucratic medicine case,

322
00:11:41,376 --> 00:11:43,385
that if a case, it was a 9

323
00:11:43,520 --> 00:11:46,355
reversal, and the... They explicitly called out with

324
00:11:46,712 --> 00:11:48,300
the Supreme Court referred to as the fifth

325
00:11:48,300 --> 00:11:51,078
circuit unprecedented and limitless approach to standing.

326
00:11:52,031 --> 00:11:54,651
Same in Murphy, finding no standing to challenge

327
00:11:54,651 --> 00:11:55,310
a government

328
00:11:55,619 --> 00:11:56,658
actions with social media,

329
00:11:57,138 --> 00:11:57,638
and

330
00:11:58,017 --> 00:12:00,654
called their justice Barrett called the fifth circuits

331
00:12:00,654 --> 00:12:01,713
doctor startling

332
00:12:02,172 --> 00:12:03,471
broad and boundless.

333
00:12:04,742 --> 00:12:07,448
We also have some previous cases from earlier

334
00:12:07,448 --> 00:12:10,631
terms again, striking down fifth circuit standing decisions

335
00:12:10,631 --> 00:12:13,598
as making an uncharted path or entirely novel

336
00:12:14,305 --> 00:12:16,051
so for example, Us first, Texas,

337
00:12:16,527 --> 00:12:17,638
California, Texas,

338
00:12:18,273 --> 00:12:20,439
Dover Brown, which was the student loan borrowers

339
00:12:20,494 --> 00:12:20,732
case,

340
00:12:21,382 --> 00:12:22,966
And then holland versus Bur,

341
00:12:23,838 --> 00:12:26,532
which was a case about Texas standing to

342
00:12:26,532 --> 00:12:30,124
sue under this Quasi sovereign and sovereign interest

343
00:12:30,124 --> 00:12:30,523
doctrine.

344
00:12:31,001 --> 00:12:31,501
So

345
00:12:32,597 --> 00:12:35,091
maybe 1 takeaway from this case is Texas

346
00:12:35,308 --> 00:12:36,026
or excuse me,

347
00:12:36,744 --> 00:12:38,180
the fifth circuit is getting the message.

348
00:12:40,028 --> 00:12:41,701
Remains to be seen. You know, the facts

349
00:12:41,701 --> 00:12:43,454
here, I think we're very different from those

350
00:12:43,454 --> 00:12:45,844
cases and particularly since it didn't seem like

351
00:12:45,844 --> 00:12:48,210
the state belief too strongly in its interest

352
00:12:48,409 --> 00:12:49,845
maybe the fifth circuit just kind of took

353
00:12:49,845 --> 00:12:50,722
that as an out.

354
00:12:51,998 --> 00:12:53,753
I I also think there's a very interesting

355
00:12:53,753 --> 00:12:55,827
footnote in this that flags in argument in

356
00:12:55,906 --> 00:12:58,195
Texas was making about the Mel bar. So

357
00:12:58,313 --> 00:13:01,086
So Texas argued that the Mel bar shouldn't

358
00:13:01,086 --> 00:13:03,067
apply at all when you're dealing with Quasi

359
00:13:03,067 --> 00:13:05,389
sovereign interests and the fifth circuit get flagged

360
00:13:05,620 --> 00:13:07,299
we're not gonna answer that question because they

361
00:13:07,299 --> 00:13:09,379
haven't an asserted and adequate quasi sovereign interest,

362
00:13:09,620 --> 00:13:11,379
but this is definitely an area that I

363
00:13:11,379 --> 00:13:13,539
expect will see continued litigation on, and it's

364
00:13:13,539 --> 00:13:15,791
something that courts and comment have already been

365
00:13:15,791 --> 00:13:18,025
talking about for a while, particularly as we've

366
00:13:18,025 --> 00:13:20,978
seen so many more suits from states challenging

367
00:13:20,978 --> 00:13:22,255
the federal government in recent years.

368
00:13:22,985 --> 00:13:25,447
So we... At I j, obviously, are our

369
00:13:25,447 --> 00:13:28,249
bread and butter is bringing constitutional claims against

370
00:13:28,702 --> 00:13:30,235
the state or federal governments

371
00:13:30,783 --> 00:13:32,297
And, so, you know, the first time is

372
00:13:32,297 --> 00:13:34,686
always drafting a a complaint or declarations for

373
00:13:34,686 --> 00:13:36,837
an injunction. And I don't think I've ever

374
00:13:36,837 --> 00:13:39,068
sent 1 to our director of litigation Dana

375
00:13:39,147 --> 00:13:39,546
Berlin leonard.

376
00:13:40,357 --> 00:13:41,951
Where the comment did not come back. You

377
00:13:41,951 --> 00:13:45,137
need more details on precisely how you've been

378
00:13:45,137 --> 00:13:46,412
injured. So I'm curious Kirby,

379
00:13:47,049 --> 00:13:48,961
did this case strike a chord for you.

380
00:13:49,453 --> 00:13:52,229
It definitely did. Yes. I actually, Danielle, you're

381
00:13:52,229 --> 00:13:53,577
talking about them if a pressed stone case,

382
00:13:53,815 --> 00:13:56,274
and 1 of my last appearances on short

383
00:13:56,274 --> 00:13:58,671
circuit was when the... Circuit had just decided

384
00:13:58,671 --> 00:14:00,817
them mi a preston case, and we were

385
00:14:00,817 --> 00:14:02,326
contrasting that with a case out of the

386
00:14:02,326 --> 00:14:04,734
fourth circuit in which the fourth circuit held

387
00:14:05,361 --> 00:14:08,384
that parents who are challenging a Maryland schools

388
00:14:08,384 --> 00:14:09,418
policy on,

389
00:14:10,214 --> 00:14:13,734
not notifying parents if children were socially transitioning

390
00:14:13,734 --> 00:14:16,148
and schools using different pronouns and different names

391
00:14:16,286 --> 00:14:18,041
on that those parents didn't have standing,

392
00:14:18,759 --> 00:14:20,115
and the parents said, well, the whole point

393
00:14:20,115 --> 00:14:21,471
of the policy is that we don't know

394
00:14:21,471 --> 00:14:23,235
if we're affected, but we have children in

395
00:14:23,235 --> 00:14:24,507
the school and the 4 circuit there theirs

396
00:14:24,507 --> 00:14:26,176
said the parents didn't have standing. And then

397
00:14:26,176 --> 00:14:27,845
the fifth circuit had just said that these

398
00:14:27,845 --> 00:14:30,086
doctors did have standing infected in this kind

399
00:14:30,086 --> 00:14:32,153
of more outrageous situation, the them if a

400
00:14:32,153 --> 00:14:33,902
pre case. And I think

401
00:14:34,935 --> 00:14:36,843
whenever the standing it issues comes up. As

402
00:14:36,843 --> 00:14:38,512
as Ben said, it does strike a cord

403
00:14:38,512 --> 00:14:40,282
because courts can be really all over the

404
00:14:40,282 --> 00:14:41,899
place. And I think

405
00:14:42,437 --> 00:14:44,672
I'm interested as Danielle had to see if

406
00:14:44,672 --> 00:14:46,827
the supreme court's kind of recent cases on

407
00:14:46,827 --> 00:14:47,646
this will

408
00:14:48,277 --> 00:14:50,264
provide a little bit more consistency in the

409
00:14:50,264 --> 00:14:53,069
lower courts, but I think still generally frustrating

410
00:14:53,205 --> 00:14:55,693
for public interest lawyers. What happens is

411
00:14:56,084 --> 00:14:58,162
if a court does not want to decide

412
00:14:58,162 --> 00:14:58,721
a case,

413
00:14:59,280 --> 00:15:01,278
they can find a way to use standing

414
00:15:01,278 --> 00:15:03,297
to kick you out, which is why

415
00:15:03,835 --> 00:15:05,843
Dana Berlin is quite right to say, add

416
00:15:05,843 --> 00:15:08,070
more detail, and we need to be careful

417
00:15:08,070 --> 00:15:10,218
about how we draft our complaints. And I

418
00:15:10,218 --> 00:15:11,983
think this case also is a good example

419
00:15:11,983 --> 00:15:13,890
of how much the states are really taking

420
00:15:13,890 --> 00:15:15,162
a lead in a lot of what used

421
00:15:15,162 --> 00:15:17,229
to be public interest litigation. I mean, it

422
00:15:17,229 --> 00:15:19,057
used to be, you know, back in the

423
00:15:19,057 --> 00:15:20,487
day, I'm old enough to remember where you

424
00:15:20,487 --> 00:15:22,998
had to, like, troll and find some person

425
00:15:23,057 --> 00:15:25,054
who was actually affected by it and sure

426
00:15:25,054 --> 00:15:26,972
maybe they were being supported by groups that

427
00:15:26,972 --> 00:15:29,383
had sort of a broader ideological interest but

428
00:15:29,383 --> 00:15:30,578
you actually had to go find people.

429
00:15:31,215 --> 00:15:33,047
But now it seems like... And this is

430
00:15:33,047 --> 00:15:35,118
honestly true of both red and blue states

431
00:15:35,118 --> 00:15:37,307
that when you have you know, a democratic

432
00:15:37,445 --> 00:15:39,120
administration, you have a wave of red states

433
00:15:39,120 --> 00:15:41,593
and elected attorney generals who wanna make a

434
00:15:41,593 --> 00:15:43,347
name by suing the federal government. And when

435
00:15:43,347 --> 00:15:45,102
you have a Republican administration, you have a

436
00:15:45,102 --> 00:15:47,025
group of blue states that go and sue

437
00:15:47,025 --> 00:15:48,294
the federal government to try to make a

438
00:15:48,294 --> 00:15:49,879
name for themselves. And it's really a change

439
00:15:49,879 --> 00:15:51,941
as to how much we've seen sort of

440
00:15:51,941 --> 00:15:54,018
state standing being the question because the state

441
00:15:54,018 --> 00:15:55,369
to the ones who we're taking the lead

442
00:15:55,369 --> 00:15:57,935
in these big cases either to get favorable

443
00:15:58,707 --> 00:16:00,853
venues or honestly just because they think it's

444
00:16:00,853 --> 00:16:02,975
it's good publicity for their attorneys generals. It's

445
00:16:03,174 --> 00:16:05,254
way different than even it was, you know,

446
00:16:05,414 --> 00:16:06,294
10:20 years ago.

447
00:16:07,174 --> 00:16:08,855
And so why don't we turn now to

448
00:16:08,855 --> 00:16:11,495
a case where standing is not an issue

449
00:16:11,495 --> 00:16:13,978
where Ind dispute, somebody was being made to

450
00:16:13,978 --> 00:16:15,807
pay 500 dollars. They said that they didn't

451
00:16:15,807 --> 00:16:18,272
wanna pay. And what happened there shot. Sure.

452
00:16:18,431 --> 00:16:19,783
So this is a case out the Dc

453
00:16:19,783 --> 00:16:21,985
circuit, issued on July fifth right after the

454
00:16:22,104 --> 00:16:24,888
July fourth holiday called evergreen shipping agency versus

455
00:16:24,888 --> 00:16:27,275
federal Maritime Commission. First of all, at the

456
00:16:27,275 --> 00:16:28,469
very beginning, disclaimer,

457
00:16:29,676 --> 00:16:31,976
myself and my colleague, Kate S filed an

458
00:16:32,135 --> 00:16:34,197
Ami brief in support of the petition in

459
00:16:34,197 --> 00:16:36,022
this case, so it is a Hogan case.

460
00:16:36,513 --> 00:16:38,814
But I love this case even beyond working

461
00:16:38,814 --> 00:16:40,718
on it because it's has everything that I

462
00:16:40,718 --> 00:16:43,629
love about administrative law appeals, which is that

463
00:16:43,828 --> 00:16:46,210
you learn about the plumbing of parts of

464
00:16:46,210 --> 00:16:48,274
the world that you have taken for granted

465
00:16:48,274 --> 00:16:51,211
all of your life and, like, learn that

466
00:16:51,211 --> 00:16:52,970
for everything that occurs. There is a group

467
00:16:52,970 --> 00:16:56,299
of people intensely focused on this really small

468
00:16:56,299 --> 00:16:56,799
thing

469
00:16:57,646 --> 00:16:59,327
that you have no idea about So, for

470
00:16:59,327 --> 00:17:00,837
instance, you may not have known there's an

471
00:17:00,837 --> 00:17:03,539
agency called the Federal Maritime Commission, which among

472
00:17:03,539 --> 00:17:05,924
other things, it it it like many sort

473
00:17:05,924 --> 00:17:08,013
of new deal era type

474
00:17:08,804 --> 00:17:09,304
agencies

475
00:17:09,683 --> 00:17:12,080
have a requirement that practices that relate to,

476
00:17:12,479 --> 00:17:15,276
again, among other things, shipping containers, be, quote,

477
00:17:15,516 --> 00:17:16,395
just in reasonable.

478
00:17:17,127 --> 00:17:19,672
Which is a very broad term. But shipping

479
00:17:19,672 --> 00:17:21,899
containers are those things that you see on

480
00:17:21,899 --> 00:17:23,592
those giant ocean freighter

481
00:17:23,903 --> 00:17:25,492
they then get transferred to the back of

482
00:17:25,492 --> 00:17:28,138
semi and they go to warehouses and shipping

483
00:17:28,195 --> 00:17:31,056
containers literally make the world run, which is

484
00:17:31,056 --> 00:17:32,646
something I discovered during all of this.

485
00:17:33,458 --> 00:17:33,958
Because

486
00:17:34,575 --> 00:17:37,049
think about how stuff gets from, you know,

487
00:17:37,448 --> 00:17:40,240
China, Japan to your doorstep. If somebody makes

488
00:17:40,240 --> 00:17:42,400
it They put in a container. They put

489
00:17:42,400 --> 00:17:44,067
the container on a ship. The can... The

490
00:17:44,067 --> 00:17:46,211
ship comes to a Us port. They take

491
00:17:46,211 --> 00:17:47,799
it off the ship. They deliver it to

492
00:17:47,799 --> 00:17:49,387
a warehouse. They deliver it to a store.

493
00:17:50,278 --> 00:17:52,594
And these shipping containers make the whole thing

494
00:17:52,594 --> 00:17:54,590
work because if you don't have shipping containers

495
00:17:54,590 --> 00:17:55,808
either to go back

496
00:17:56,346 --> 00:17:58,581
to Asia or any place else, you can't

497
00:17:58,581 --> 00:17:59,300
ship new things.

498
00:17:59,874 --> 00:18:02,107
And if they're sitting on a port somewhere,

499
00:18:02,666 --> 00:18:04,900
you can't get the stuff to your house.

500
00:18:05,459 --> 00:18:07,787
So, you know, during Covid, when people used

501
00:18:07,787 --> 00:18:09,622
to say, oh, we're having supply chain issues,

502
00:18:09,861 --> 00:18:12,253
this is the stuff they're talking about. And

503
00:18:12,253 --> 00:18:14,487
so a big issue in the freight industry

504
00:18:14,646 --> 00:18:16,481
I came to learn is something called freight

505
00:18:16,481 --> 00:18:16,800
fluidity.

506
00:18:17,371 --> 00:18:18,959
Which is the question of is this sort

507
00:18:18,959 --> 00:18:21,046
of circular process of getting containers

508
00:18:21,737 --> 00:18:23,880
to where they need to be happening because

509
00:18:23,880 --> 00:18:25,547
if it's not, the whole thing gets sn.

510
00:18:25,960 --> 00:18:27,559
And it's like a traffic jam where once

511
00:18:27,559 --> 00:18:29,559
it gets bad, it could progressively gets worse.

512
00:18:30,519 --> 00:18:30,839
So...

513
00:18:31,880 --> 00:18:33,640
And this can happen in 2 ways. 1

514
00:18:33,640 --> 00:18:35,735
is now you don't pick up your container

515
00:18:35,735 --> 00:18:37,174
in time, and so it's sitting on the

516
00:18:37,174 --> 00:18:38,795
port and you can't get new stuff in

517
00:18:39,414 --> 00:18:39,914
or

518
00:18:40,215 --> 00:18:41,495
you keep it for too long, and it's

519
00:18:41,495 --> 00:18:42,695
not going back to where it should.

520
00:18:43,586 --> 00:18:45,736
Waiting too long is called D mirage, holding

521
00:18:45,736 --> 00:18:47,327
it too long is called detention, and they're

522
00:18:47,327 --> 00:18:48,840
basically 2 sides of the same coin.

523
00:18:49,715 --> 00:18:51,625
And so 1 of the ways the shipping

524
00:18:51,625 --> 00:18:54,350
industry tries to incentivize people to return things

525
00:18:54,350 --> 00:18:55,786
or pick up things when they supposed to

526
00:18:55,786 --> 00:18:57,620
is, you have a contract, and it says

527
00:18:57,620 --> 00:18:58,896
if you don't pick it up or deliver

528
00:18:58,896 --> 00:19:00,731
it by this period, we're gonna start charging

529
00:19:00,731 --> 00:19:02,007
you. It's essentially a late fee.

530
00:19:03,216 --> 00:19:05,544
But it's subject to the fair federal Maritime

531
00:19:05,917 --> 00:19:07,744
superintendents to say whether it's just or reasonable.

532
00:19:08,539 --> 00:19:10,683
So, you know, I think shippers wanna say,

533
00:19:10,842 --> 00:19:12,193
look, whatever's is in the contract should go.

534
00:19:13,003 --> 00:19:14,758
And the people who pick up and drop

535
00:19:14,758 --> 00:19:16,593
off these things want more careful to your

536
00:19:16,593 --> 00:19:18,746
superintendents by the agency. And everybody kind of

537
00:19:18,746 --> 00:19:20,182
petition to say, how about we have some

538
00:19:20,182 --> 00:19:22,096
sort of rule that defines what is just

539
00:19:22,096 --> 00:19:23,788
reasonable which respect to these charges.

540
00:19:24,587 --> 00:19:26,585
And what the Federal Maritime Commission said was

541
00:19:26,585 --> 00:19:28,822
well, we're not gonna set you know, out,

542
00:19:28,982 --> 00:19:30,920
we're not gonna set out a hard rule

543
00:19:31,234 --> 00:19:33,382
but we're gonna issue an interpretive guidance that

544
00:19:33,382 --> 00:19:33,701
says,

545
00:19:34,417 --> 00:19:36,088
primarily what we're gonna focus on is this

546
00:19:36,088 --> 00:19:38,418
incentive principle? In other words, is this fee

547
00:19:38,968 --> 00:19:40,800
incentivizing you to pick off or drop off

548
00:19:40,800 --> 00:19:42,792
on time. And if the fee isn't doing

549
00:19:42,792 --> 00:19:44,544
that, it's gonna be unjust and reasonable.

550
00:19:45,022 --> 00:19:47,027
But in response the comments from everybody who

551
00:19:47,027 --> 00:19:48,300
said, wait a second. Wait a second Wait

552
00:19:48,300 --> 00:19:49,653
a second. That shouldn't be the only thing

553
00:19:49,653 --> 00:19:51,880
you think about. The Federal Maritime Commission said,

554
00:19:52,039 --> 00:19:52,676
but don't worry.

555
00:19:53,168 --> 00:19:55,096
We're gonna consider all the facts and circumstances

556
00:19:55,152 --> 00:19:56,660
in any case. You know, it's 1 of

557
00:19:56,660 --> 00:19:59,041
those multi factor balance tests where no 1

558
00:19:59,041 --> 00:19:59,914
factor is controlling.

559
00:20:00,805 --> 00:20:02,805
So this brings us to evergreen shipping. And

560
00:20:02,805 --> 00:20:04,484
as Ben mentioned, it is a case that

561
00:20:04,484 --> 00:20:05,924
went all the way to the Dc circuit

562
00:20:05,924 --> 00:20:07,125
on 510

563
00:20:07,125 --> 00:20:07,445
dollars.

564
00:20:08,098 --> 00:20:10,240
But the... But it's obviously the broader principle

565
00:20:10,240 --> 00:20:12,541
because these detain and d mirage principles are

566
00:20:12,541 --> 00:20:14,287
hundreds of millions of dollars to the to

567
00:20:14,287 --> 00:20:16,449
the shipping industry. And more importantly,

568
00:20:16,846 --> 00:20:19,155
they are how you get the freight going

569
00:20:19,155 --> 00:20:20,509
because they don't really want your late fee,

570
00:20:20,668 --> 00:20:21,862
what they want is they want you to

571
00:20:21,862 --> 00:20:22,977
pick up and drop off on time.

572
00:20:24,906 --> 00:20:27,140
So what happened in this case was typical

573
00:20:27,220 --> 00:20:28,257
Covid situation,

574
00:20:31,303 --> 00:20:33,447
they couldn't get the container out of the

575
00:20:33,447 --> 00:20:35,036
warehouse and back to the port of Savannah

576
00:20:35,036 --> 00:20:37,419
where it's supposed to. They ran out of

577
00:20:37,419 --> 00:20:39,245
what's called free time, which is essentially your

578
00:20:39,245 --> 00:20:40,357
grace period to return it.

579
00:20:41,008 --> 00:20:42,759
But they couldn't return to Savannah when they

580
00:20:42,759 --> 00:20:44,430
wanted to because the port of Savannah was

581
00:20:44,430 --> 00:20:46,977
closed for the Memorial Day holiday. So the

582
00:20:46,977 --> 00:20:47,932
shoes so the...

583
00:20:48,984 --> 00:20:51,541
The holder of the container said, well, gosh,

584
00:20:51,701 --> 00:20:53,938
the incentive principle doesn't apply because we couldn't

585
00:20:53,938 --> 00:20:56,095
return it. The port was closed. And our

586
00:20:56,095 --> 00:20:56,710
response was

587
00:20:57,146 --> 00:20:59,448
or, you know, the Evergreen response was, but

588
00:20:59,448 --> 00:21:00,797
you could have dropped it off sooner when

589
00:21:00,797 --> 00:21:03,099
you were supposed to, and you knew about

590
00:21:03,099 --> 00:21:05,265
this closure way in advance. Memorial Days the

591
00:21:05,265 --> 00:21:06,785
same time every year and you knew the

592
00:21:06,785 --> 00:21:07,904
port was gonna be closed.

593
00:21:08,545 --> 00:21:11,025
And the Federal Maritime Commission said, well, under

594
00:21:11,025 --> 00:21:12,359
our incentive principal, it's

595
00:21:13,513 --> 00:21:15,821
it's not incentivizing therefore, the fees are unreasonable.

596
00:21:16,458 --> 00:21:16,617
And,

597
00:21:17,333 --> 00:21:18,845
Evergreen took a petition for review to the

598
00:21:18,924 --> 00:21:19,641
Dc circuit.

599
00:21:20,132 --> 00:21:22,747
And it's a great breezy 10 page opinion.

600
00:21:22,985 --> 00:21:24,649
I really recommend it. It also sort of

601
00:21:24,649 --> 00:21:26,551
covers a lot of the administrative procedure act

602
00:21:26,551 --> 00:21:26,948
basics.

603
00:21:27,757 --> 00:21:29,664
Of how agencies have to go about carrying

604
00:21:29,664 --> 00:21:30,380
out their duties.

605
00:21:31,254 --> 00:21:32,764
Because first of all, the Dc circuit said,

606
00:21:33,320 --> 00:21:35,784
wait. You promised 1 thing, and then you

607
00:21:35,784 --> 00:21:38,592
said another. When you pass this interpretive rule,

608
00:21:38,832 --> 00:21:39,392
you said,

609
00:21:40,270 --> 00:21:41,629
you were gonna consider all the facts and

610
00:21:41,629 --> 00:21:42,129
circumstances.

611
00:21:43,067 --> 00:21:44,666
But when it actually came time to apply

612
00:21:44,666 --> 00:21:45,465
this in practice,

613
00:21:46,116 --> 00:21:47,624
all you looked at was this incentive principle,

614
00:21:47,862 --> 00:21:49,845
which is the very thing you said you

615
00:21:49,845 --> 00:21:51,193
weren't gonna do agency.

616
00:21:52,066 --> 00:21:53,855
You need to look at all the circumstances,

617
00:21:54,154 --> 00:21:56,234
including the fact that they already had free

618
00:21:56,234 --> 00:21:58,474
time with this that you knew about the

619
00:21:58,474 --> 00:22:00,714
closure in advance. All of these other factors

620
00:22:00,714 --> 00:22:01,994
that you never considered,

621
00:22:02,729 --> 00:22:04,408
And moreover, by the way, when you did

622
00:22:04,408 --> 00:22:06,326
discuss some factors, you didn't really explain why

623
00:22:06,326 --> 00:22:07,205
what you were doing.

624
00:22:07,924 --> 00:22:10,402
So, you know, the essence of agency action

625
00:22:10,481 --> 00:22:12,160
I always say is, it's not a question

626
00:22:12,160 --> 00:22:14,163
of Are you right? It's did you do

627
00:22:14,163 --> 00:22:16,785
your homework? Did you check the boxes? Did

628
00:22:16,785 --> 00:22:18,214
you do the things you said you were

629
00:22:18,214 --> 00:22:20,757
gonna do? And I think, actually this carries

630
00:22:20,757 --> 00:22:23,083
across. What Ben was saying about the declarations

631
00:22:23,083 --> 00:22:25,156
is, you know, agency should always say a

632
00:22:25,156 --> 00:22:27,230
little bit more? Like, okay. You have a

633
00:22:27,230 --> 00:22:28,665
conclusion? Well, why?

634
00:22:29,223 --> 00:22:31,233
Well, why to And then if somebody has

635
00:22:31,233 --> 00:22:33,152
an obvious response to that, well, why don't

636
00:22:33,152 --> 00:22:35,869
you agree with it? And so, you know,

637
00:22:36,348 --> 00:22:38,346
the the 2 takeaways, I think for agencies

638
00:22:38,346 --> 00:22:40,597
are, 1, don't pull bait and switches. Don't

639
00:22:40,597 --> 00:22:42,109
say you're gonna do 1 thing and do

640
00:22:42,109 --> 00:22:44,815
another. And second, always make sure if you're

641
00:22:44,815 --> 00:22:46,168
say you're gonna have a totality of the

642
00:22:46,168 --> 00:22:46,668
circumstances,

643
00:22:47,202 --> 00:22:49,271
actually consider the totality of the circumstances in

644
00:22:49,351 --> 00:22:50,402
March, through each factor.

645
00:22:51,359 --> 00:22:53,273
But I think the broader implication is is

646
00:22:53,273 --> 00:22:54,730
that it's going to be

647
00:22:55,108 --> 00:22:58,059
easier for shipping companies to justify these charges,

648
00:22:58,218 --> 00:23:00,068
which should then hopefully make an easier for

649
00:23:00,068 --> 00:23:01,185
products to get to your door.

650
00:23:01,903 --> 00:23:03,418
So 1 thing that was, you know, I

651
00:23:03,418 --> 00:23:05,571
had never heard of the Federal Maritime commission

652
00:23:05,571 --> 00:23:07,645
before reading this case. And, you know, in

653
00:23:07,645 --> 00:23:10,292
most of the economy, people just make agreements

654
00:23:10,292 --> 00:23:12,047
with people. You write a contract then you

655
00:23:12,047 --> 00:23:14,519
honor the contract, and there's no federal bureau

656
00:23:14,519 --> 00:23:16,593
looking over your shoulder to decide whether it

657
00:23:16,593 --> 00:23:18,508
was a good contract. And this 1 also

658
00:23:18,508 --> 00:23:20,918
seemed weird because the the commission itself seemed

659
00:23:20,918 --> 00:23:23,555
to be inviting, briefing on, like, this specific

660
00:23:23,555 --> 00:23:25,952
question of how to imply this incentive rule.

661
00:23:26,272 --> 00:23:27,310
So I just wondering, you know,

662
00:23:29,003 --> 00:23:30,601
since you were representing, you know, the industry

663
00:23:30,601 --> 00:23:32,278
at large, I'm curious like, what is there...

664
00:23:32,438 --> 00:23:34,616
What's really going on behind this? Like, why

665
00:23:35,327 --> 00:23:38,758
Why is there this fight over 500 dollars

666
00:23:39,764 --> 00:23:41,428
in this agency that seems to be nit

667
00:23:41,428 --> 00:23:43,352
picking me in this... Straight. Yeah. So this

668
00:23:43,352 --> 00:23:44,788
is, I think really a test case because,

669
00:23:44,868 --> 00:23:46,624
you know, the the commission actually did invite

670
00:23:46,624 --> 00:23:49,177
and send invite Ami brief. And the way

671
00:23:49,177 --> 00:23:50,865
it's typically handled is they're like a small

672
00:23:50,865 --> 00:23:52,853
claims hearing officer that would resolve these things,

673
00:23:53,012 --> 00:23:55,078
and their decisions are often final, but the

674
00:23:55,078 --> 00:23:56,748
commission as they have the right do kind

675
00:23:56,748 --> 00:23:58,338
of took on this case to try to

676
00:23:58,338 --> 00:24:00,579
state some broad principles. There's But unfortunately, the

677
00:24:00,579 --> 00:24:02,646
broad principle, they decided to state was the

678
00:24:02,646 --> 00:24:04,157
incentive rule controls overall,

679
00:24:04,793 --> 00:24:06,542
even though, again, they had promised that they

680
00:24:06,542 --> 00:24:08,307
weren't going to do that. And I think

681
00:24:08,307 --> 00:24:10,375
the broader, you know, sort of push pull

682
00:24:10,375 --> 00:24:11,353
is between

683
00:24:13,558 --> 00:24:16,283
people who take containers. Who, you know, would

684
00:24:16,283 --> 00:24:18,200
like to not pay as much money. And

685
00:24:18,200 --> 00:24:20,517
the industry, which again, I represent the industry

686
00:24:20,517 --> 00:24:22,607
so that I get to characterize this is

687
00:24:22,607 --> 00:24:24,196
they wanna try to keep their freight flowing

688
00:24:24,196 --> 00:24:25,784
as freely as possible, and really what they

689
00:24:25,784 --> 00:24:27,452
want is they want their contracts to control

690
00:24:27,452 --> 00:24:28,246
to a large extent.

691
00:24:29,279 --> 00:24:30,629
You know, the idea is even if when

692
00:24:30,629 --> 00:24:32,788
the Federal Maritime commission was created this was

693
00:24:32,788 --> 00:24:34,297
a large, you know, the shippers were kind

694
00:24:34,297 --> 00:24:36,067
of mono monopoly and they can impose

695
00:24:37,235 --> 00:24:38,982
terms. Now there's a lot of competition in

696
00:24:38,982 --> 00:24:40,252
the industry. If you don't like us ship

697
00:24:40,252 --> 00:24:41,047
with somebody else.

698
00:24:42,014 --> 00:24:44,339
And, you know, there actually terms do vary

699
00:24:44,395 --> 00:24:46,061
between contracts on how much free time you

700
00:24:46,061 --> 00:24:48,680
get or how much the detain or mirage

701
00:24:48,680 --> 00:24:50,203
fee is. There's a lot of competent tissue.

702
00:24:50,363 --> 00:24:51,636
So I think a lot of their argument

703
00:24:51,636 --> 00:24:53,546
is, look, we can let the market solve

704
00:24:53,546 --> 00:24:53,705
this.

705
00:24:54,978 --> 00:24:56,012
That's the libertarian plug.

706
00:24:57,857 --> 00:25:00,583
I I agreed, Ben, someone who is not

707
00:25:00,640 --> 00:25:02,230
familiar with this and also learned about the

708
00:25:02,309 --> 00:25:04,137
Maritime Commission for the first time reading this

709
00:25:04,137 --> 00:25:05,171
case. It did seem like,

710
00:25:06,143 --> 00:25:08,618
1 of the other factors that hadn't been

711
00:25:08,618 --> 00:25:11,572
really at all addressed by the agency below

712
00:25:11,572 --> 00:25:13,568
was the fact that this was contracted for

713
00:25:13,568 --> 00:25:15,185
and that they... The... Because

714
00:25:15,499 --> 00:25:17,736
very sophisticated parties had agreed that this was

715
00:25:17,736 --> 00:25:20,612
the right the... You know, what the conditions

716
00:25:20,612 --> 00:25:23,024
that they they wanted to be there. But,

717
00:25:23,424 --> 00:25:24,862
I also agree with, Sean that it was

718
00:25:24,862 --> 00:25:27,578
just such a an interesting peek into this

719
00:25:27,578 --> 00:25:29,496
world that I was blissful unaware of of

720
00:25:29,496 --> 00:25:31,423
how my Amazon package get. To me. So

721
00:25:31,502 --> 00:25:33,880
I I did enjoy. I I also recommended

722
00:25:33,880 --> 00:25:35,069
this to everybody's reading.

723
00:25:35,861 --> 00:25:37,130
I completely agree with all of that and

724
00:25:37,130 --> 00:25:38,734
just 1 other thing that I was really

725
00:25:38,734 --> 00:25:40,652
interesting about this case, which Sean mentioned, but

726
00:25:40,652 --> 00:25:42,569
might have gotten sort of lost in all

727
00:25:42,569 --> 00:25:44,966
of any other interesting points about it is

728
00:25:44,966 --> 00:25:48,255
that no 1 appealed the original decision. The

729
00:25:48,255 --> 00:25:49,473
commission decided Su

730
00:25:50,010 --> 00:25:51,846
to take this question up and to just

731
00:25:51,846 --> 00:25:54,375
sort of articulate this role, and so

732
00:25:54,892 --> 00:25:56,323
so much of the time. I think we

733
00:25:56,323 --> 00:25:57,062
see these,

734
00:25:57,994 --> 00:26:00,778
you know, insufficient agency decisions from agencies that

735
00:26:00,778 --> 00:26:02,144
just don't want a case there in the

736
00:26:02,144 --> 00:26:04,605
first place. They're like, really, come on guys.

737
00:26:04,844 --> 00:26:06,591
We fine. Okay. We'll we'll just get rid

738
00:26:06,591 --> 00:26:08,576
of it in a paragraph or 2. But

739
00:26:08,576 --> 00:26:11,214
that was not this. The they chose to

740
00:26:11,214 --> 00:26:12,964
take this case. They chose to answer this

741
00:26:12,964 --> 00:26:15,430
question. So great illustration of the principal, you

742
00:26:15,430 --> 00:26:17,036
know, be careful what you wish. Be careful

743
00:26:17,036 --> 00:26:18,627
what you do when you're an agency. And

744
00:26:18,627 --> 00:26:20,775
if you're gonna take that case, you should

745
00:26:20,775 --> 00:26:22,525
definitely be offering some reasoning there.

746
00:26:23,400 --> 00:26:26,299
For So we've talked about the grand federal

747
00:26:26,674 --> 00:26:29,615
regulation of maritime shipping. We've talked about a

748
00:26:29,615 --> 00:26:32,182
state fighting the Fed's over control of gun

749
00:26:32,398 --> 00:26:34,724
legislation. In that state. But on the theory

750
00:26:34,724 --> 00:26:36,478
that all politics is local, we're gonna take

751
00:26:36,478 --> 00:26:38,313
a to a a little bit more of

752
00:26:38,313 --> 00:26:41,423
a mundane, but still very important dispute over

753
00:26:41,423 --> 00:26:42,434
1 teacher

754
00:26:43,032 --> 00:26:45,902
getting fired in Massachusetts. So Kirby, why don't

755
00:26:45,902 --> 00:26:47,736
you take us away on that 1? Happily.

756
00:26:47,975 --> 00:26:49,729
So I am going to talk about a

757
00:26:49,729 --> 00:26:51,660
case out of the first circuit. Called Mc

758
00:26:51,660 --> 00:26:52,700
mckay versus Mad.

759
00:26:54,220 --> 00:26:55,359
This is a case

760
00:26:55,660 --> 00:26:58,380
Ben mentioned of a teacher in Massachusetts,

761
00:26:59,590 --> 00:27:02,852
she is also active on Tiktok. So she's

762
00:27:02,852 --> 00:27:05,238
a grandmother who is active on Tiktok and

763
00:27:05,238 --> 00:27:05,738
had

764
00:27:06,049 --> 00:27:08,517
posted 6 different tiktok posts, which I would

765
00:27:08,517 --> 00:27:11,384
describe as Facebook memes. So they are the

766
00:27:11,384 --> 00:27:13,932
kind of thing that my late grandmother who

767
00:27:13,932 --> 00:27:16,664
was very sweet and very conservative, but also

768
00:27:16,664 --> 00:27:18,184
surprisingly spicy on social media.

769
00:27:19,305 --> 00:27:21,865
Might have posted. So they're a little bit

770
00:27:21,865 --> 00:27:24,356
cra, a little bit crude, but not outside

771
00:27:24,356 --> 00:27:27,300
of the mainstream of kind of conservative thought,

772
00:27:27,459 --> 00:27:27,936
I would say.

773
00:27:30,243 --> 00:27:30,743
She

774
00:27:31,133 --> 00:27:34,075
had posted these 6 kind of controversial tiktok

775
00:27:34,075 --> 00:27:36,937
posts under the name Nana Mac 4. Did

776
00:27:36,937 --> 00:27:39,004
the Tiktok account did not include her real

777
00:27:39,004 --> 00:27:39,242
name.

778
00:27:40,848 --> 00:27:42,124
After posting these

779
00:27:42,762 --> 00:27:43,719
tiktok put memes,

780
00:27:44,436 --> 00:27:46,451
she was elected to

781
00:27:46,908 --> 00:27:49,221
the born school committee in Massachusetts.

782
00:27:50,983 --> 00:27:52,966
Later, she was then hired in a different

783
00:27:52,966 --> 00:27:55,902
town about an hour away, hanover, Massachusetts as

784
00:27:55,902 --> 00:27:57,330
a business and math teacher.

785
00:27:58,697 --> 00:28:01,031
Shortly after she was hired in hanover,

786
00:28:01,567 --> 00:28:02,923
back in born, where she was on the

787
00:28:02,923 --> 00:28:04,438
school committee, someone,

788
00:28:04,996 --> 00:28:07,719
brought the school committee, made school committee aware

789
00:28:07,719 --> 00:28:09,945
of these controversial tiktok posts, and it became

790
00:28:09,945 --> 00:28:11,218
a little bit of a hull balloon there.

791
00:28:11,377 --> 00:28:13,763
They scheduled a meeting to discuss it. A

792
00:28:13,763 --> 00:28:15,932
local paper ran a story about

793
00:28:16,387 --> 00:28:19,024
herbs post son tiktok, and there was, you

794
00:28:19,024 --> 00:28:20,454
know, a a number of complaints.

795
00:28:21,169 --> 00:28:23,553
After this, the the drama made its way

796
00:28:23,553 --> 00:28:25,951
to hanover where she then had post started

797
00:28:25,951 --> 00:28:27,301
her job in the school year she had

798
00:28:27,301 --> 00:28:29,366
hired in August, and then September had started

799
00:28:29,366 --> 00:28:31,034
her job as a a high school teacher.

800
00:28:32,464 --> 00:28:33,679
And she was ultimately

801
00:28:34,211 --> 00:28:37,957
fired. It expressly because of the tiktok post.

802
00:28:39,147 --> 00:28:41,869
In the District court, the district court granted

803
00:28:42,083 --> 00:28:43,512
summary judgment for the defendants,

804
00:28:45,041 --> 00:28:45,541
that

805
00:28:45,999 --> 00:28:46,499
she

806
00:28:46,957 --> 00:28:48,414
applying AAA framework

807
00:28:48,792 --> 00:28:50,787
from a case called Ga versus Sub bios,

808
00:28:50,947 --> 00:28:51,960
which is about

809
00:28:52,317 --> 00:28:54,465
first amendment retaliation in the context of government

810
00:28:54,465 --> 00:28:56,772
employees? So when can the federal government or

811
00:28:56,772 --> 00:28:58,442
or not the federal government? When can any

812
00:28:58,442 --> 00:28:58,942
government

813
00:28:59,731 --> 00:29:02,200
fire an employee? And and how... What kind

814
00:29:02,200 --> 00:29:04,988
of considerations? Do you have to take about

815
00:29:04,988 --> 00:29:06,820
speech? Is it part of their job as

816
00:29:06,820 --> 00:29:08,902
an employee? Or is it kind of speech

817
00:29:08,902 --> 00:29:10,645
they were just making as a citizen outside

818
00:29:10,645 --> 00:29:11,279
of their job.

819
00:29:12,071 --> 00:29:14,235
And the main question on appeal

820
00:29:14,686 --> 00:29:17,252
was the was the district court right to

821
00:29:17,252 --> 00:29:18,611
apply that Ga city framework?

822
00:29:19,091 --> 00:29:21,968
Or was this more like other kinds of

823
00:29:21,968 --> 00:29:24,605
first amendment retaliation cases? So typically in a

824
00:29:24,605 --> 00:29:26,367
first amendment retaliation case. What you have to

825
00:29:26,367 --> 00:29:29,617
show is 1, you engaged in speech protected

826
00:29:29,617 --> 00:29:30,409
by the first amendment.

827
00:29:31,043 --> 00:29:33,596
2, there was some adverse action taken against

828
00:29:33,596 --> 00:29:35,659
you by the government, and it... That action

829
00:29:35,659 --> 00:29:38,381
would have deter a person of ordinary firm

830
00:29:38,754 --> 00:29:40,897
from continuing to engage in protected speech,

831
00:29:41,626 --> 00:29:44,589
And then third, that there's direct c sensation

832
00:29:45,042 --> 00:29:47,028
between the adverse action and the speech that

833
00:29:47,028 --> 00:29:50,388
you made. And what Miss Mc mckay argued

834
00:29:50,523 --> 00:29:51,023
is

835
00:29:51,892 --> 00:29:53,588
this should be just a normal first member

836
00:29:53,647 --> 00:29:55,960
retaliation case. This was speech I made before

837
00:29:56,039 --> 00:29:58,193
I got my job. This wasn't the kind

838
00:29:58,193 --> 00:30:01,039
of thing liking Ga where the speech was

839
00:30:01,716 --> 00:30:04,022
made as a part of the person exercising

840
00:30:04,022 --> 00:30:06,329
their job duties, and it really makes sense

841
00:30:06,329 --> 00:30:08,476
where, okay, you... I'm I'm treating you as

842
00:30:08,476 --> 00:30:09,272
employer employee.

843
00:30:09,764 --> 00:30:11,756
And how... This is this is relates to

844
00:30:11,756 --> 00:30:14,384
how you are actually performing your job, and

845
00:30:14,384 --> 00:30:16,535
we can take employment action against you because...

846
00:30:17,109 --> 00:30:18,869
You know, you're... Just because your speech is,

847
00:30:19,029 --> 00:30:20,970
or or part of your job is speech

848
00:30:21,109 --> 00:30:23,509
doesn't mean that we can't, you know, fire

849
00:30:23,509 --> 00:30:24,710
you for it if it's part of how

850
00:30:24,710 --> 00:30:25,750
you're exercising your job.

851
00:30:27,523 --> 00:30:28,801
The first circuit said,

852
00:30:29,441 --> 00:30:31,119
no. She was wrong and that... In a

853
00:30:31,119 --> 00:30:32,957
in an opinion that I... I'm interested to

854
00:30:32,957 --> 00:30:34,316
hear the rest of the pan thoughts on.

855
00:30:34,555 --> 00:30:35,250
It's a little

856
00:30:35,607 --> 00:30:37,829
more flip and style than I like in

857
00:30:37,829 --> 00:30:39,019
a a legal opinion.

858
00:30:39,734 --> 00:30:41,956
The judge refers to this as a sq

859
00:30:41,956 --> 00:30:44,276
and kind of makes editorial sizes that she

860
00:30:44,276 --> 00:30:45,253
didn't take her

861
00:30:45,788 --> 00:30:46,742
termination on the chin,

862
00:30:47,379 --> 00:30:48,515
just some kind of

863
00:30:48,970 --> 00:30:50,958
style that doesn't resonate with me. But

864
00:30:51,848 --> 00:30:53,439
the the first circuit said,

865
00:30:54,234 --> 00:30:56,063
the Ga city fit framework was the right

866
00:30:56,063 --> 00:30:56,938
framework to apply.

867
00:30:57,574 --> 00:31:00,459
And, there, what you were looking at is

868
00:31:00,596 --> 00:31:02,523
did the employee speak as a citizen on

869
00:31:02,523 --> 00:31:03,962
a matter of public concern?

870
00:31:04,681 --> 00:31:06,939
Second, did the government entity have adequate

871
00:31:07,398 --> 00:31:09,556
justification for treating the employee differently than member

872
00:31:09,556 --> 00:31:10,455
of the public

873
00:31:10,768 --> 00:31:13,311
and third was the speech a motivating factor

874
00:31:13,311 --> 00:31:15,855
in the adverse employment decision. Now here,

875
00:31:16,650 --> 00:31:18,080
for the first and third factors.

876
00:31:18,573 --> 00:31:20,965
Clearly, this was, you know, she was speaking

877
00:31:20,965 --> 00:31:22,581
as a citizen on a matter of public

878
00:31:22,719 --> 00:31:24,393
concern because she wasn't even an employee yet.

879
00:31:24,553 --> 00:31:26,068
So this wasn't part of her job in

880
00:31:26,068 --> 00:31:26,546
any way.

881
00:31:27,357 --> 00:31:29,904
And then for was the speech motivating factor,

882
00:31:30,540 --> 00:31:32,371
the the school said, we are firing you

883
00:31:32,371 --> 00:31:33,326
because of your Tiktok post.

884
00:31:34,694 --> 00:31:36,295
The question really was kind of more of

885
00:31:36,295 --> 00:31:36,954
a balancing

886
00:31:37,335 --> 00:31:37,575
between,

887
00:31:39,414 --> 00:31:41,894
did the government have a sufficient interest? Did

888
00:31:41,894 --> 00:31:44,066
the school have a sufficient... A sufficient interest

889
00:31:44,066 --> 00:31:45,683
in minimizing disruption

890
00:31:46,540 --> 00:31:48,774
to take this adverse action based on her

891
00:31:48,774 --> 00:31:51,262
speech. And the first circuit said, yes, they

892
00:31:51,262 --> 00:31:53,251
they did that there was a concern that

893
00:31:53,729 --> 00:31:55,400
she was going to make the school

894
00:31:56,037 --> 00:31:58,027
you know, unsafe environment for...

895
00:31:59,400 --> 00:32:02,759
Lgbt students or minority students and that this

896
00:32:02,759 --> 00:32:04,940
was a sufficient reason for

897
00:32:05,799 --> 00:32:07,566
the the school to take this

898
00:32:08,361 --> 00:32:10,349
action of terminating her employment.

899
00:32:10,905 --> 00:32:12,655
And as I've probably kind of revealed from

900
00:32:12,655 --> 00:32:14,325
my recount of the case, I think this

901
00:32:14,325 --> 00:32:15,700
is pretty problematic.

902
00:32:16,409 --> 00:32:18,345
I'm speaking to a lot of Gen years

903
00:32:18,483 --> 00:32:19,600
who know that,

904
00:32:20,318 --> 00:32:22,792
you know, your your public life or your

905
00:32:22,792 --> 00:32:25,594
social media lives starts very, very early now,

906
00:32:25,753 --> 00:32:27,264
and I don't think the court kind of

907
00:32:27,264 --> 00:32:28,855
briefly touched on this, but I don't think

908
00:32:28,855 --> 00:32:30,707
there's a way to draw a principled line

909
00:32:31,177 --> 00:32:33,958
for at what point is it too far

910
00:32:33,958 --> 00:32:36,025
back to look that you're going to be

911
00:32:36,025 --> 00:32:38,171
disqualified from government employment for your...

912
00:32:38,900 --> 00:32:40,645
Potentially your whole life because of something that

913
00:32:40,645 --> 00:32:43,025
you said un wisely on social media.

914
00:32:43,580 --> 00:32:46,142
And, you know, although this was someone who

915
00:32:46,198 --> 00:32:48,196
was you know, older and a a grandmother,

916
00:32:48,354 --> 00:32:50,099
and I think, you know, probably, it was

917
00:32:50,099 --> 00:32:51,686
an era of judgment for her to be

918
00:32:51,686 --> 00:32:54,320
making these kind of posts, you I don't

919
00:32:54,320 --> 00:32:57,445
see a principled way to distinguish that from

920
00:32:57,661 --> 00:32:59,728
a situation where somebody, you know, who's a

921
00:32:59,728 --> 00:33:01,557
college student and and says some things that

922
00:33:01,557 --> 00:33:03,029
are... In inc,

923
00:33:03,730 --> 00:33:04,230
then

924
00:33:04,690 --> 00:33:06,769
that can create employment problems for them in

925
00:33:06,769 --> 00:33:08,690
the future. I see that as pretty pretty

926
00:33:08,690 --> 00:33:09,170
problematic.

927
00:33:09,824 --> 00:33:11,982
And, Danielle, I know that we were talking

928
00:33:11,982 --> 00:33:14,459
before, we started recording that that the style

929
00:33:14,459 --> 00:33:16,137
of the opinion also struck you.

930
00:33:17,576 --> 00:33:18,615
Yeah. It did. You know,

931
00:33:19,583 --> 00:33:20,083
the

932
00:33:20,455 --> 00:33:22,676
the flip nature that Kirby mentioned struck me.

933
00:33:22,835 --> 00:33:24,342
But I I will confess the thing that

934
00:33:24,342 --> 00:33:26,404
stuck out most was actually the headings in

935
00:33:26,404 --> 00:33:26,801
the brief.

936
00:33:27,453 --> 00:33:30,480
They are table setting, the fallout, the main

937
00:33:30,480 --> 00:33:32,313
course, just really not the sort of thing

938
00:33:32,313 --> 00:33:34,066
you normally see in a judicial opinion.

939
00:33:34,637 --> 00:33:36,460
And we were chatting, like, do we think

940
00:33:36,460 --> 00:33:38,545
this is something the clerk wrote in, but

941
00:33:38,758 --> 00:33:40,740
it seems perhaps this is maybe just this

942
00:33:40,740 --> 00:33:41,532
judge's style?

943
00:33:42,421 --> 00:33:43,853
You know, I I will confess it's a

944
00:33:43,853 --> 00:33:45,125
little bit off putting to me as well.

945
00:33:45,364 --> 00:33:47,352
I think there's a fine line between this

946
00:33:47,352 --> 00:33:49,500
kind of clever in opinions that we've been

947
00:33:49,500 --> 00:33:50,216
seeing more of,

948
00:33:50,787 --> 00:33:53,880
and opinions that are not taking seriously the

949
00:33:53,880 --> 00:33:57,053
very personal interests at issue, whether you agree

950
00:33:57,053 --> 00:33:59,375
with what she said or not she's entitled

951
00:33:59,375 --> 00:34:00,654
to have her day in court and something

952
00:34:00,654 --> 00:34:02,575
that, you know, when I was clerk was

953
00:34:02,575 --> 00:34:04,414
really drilled into me by my judges is

954
00:34:04,414 --> 00:34:05,934
that we need to be very respectful of

955
00:34:05,934 --> 00:34:06,710
that. And so

956
00:34:07,465 --> 00:34:09,454
You know, who... However, it was written, whatever

957
00:34:09,454 --> 00:34:10,409
the editing process was,

958
00:34:11,681 --> 00:34:13,510
III agree that it just sort of didn't

959
00:34:13,510 --> 00:34:16,071
sit quite right with me. And, you know,

960
00:34:16,230 --> 00:34:17,901
something else that jumped out at me about

961
00:34:17,901 --> 00:34:19,992
his opinion Kirby is that

962
00:34:20,938 --> 00:34:22,871
They went out of their way to rationalize

963
00:34:23,087 --> 00:34:24,917
the idea that, like, we're, you know, we're

964
00:34:24,917 --> 00:34:27,702
looking to her previous, her pre employment post.

965
00:34:27,861 --> 00:34:29,631
That's a... K under Ga, we have all

966
00:34:29,631 --> 00:34:31,148
of these reasons, and then they had this

967
00:34:31,148 --> 00:34:34,101
separate point where they said, well, and, it's

968
00:34:34,101 --> 00:34:35,937
actually fine because she sort of made the

969
00:34:35,937 --> 00:34:38,892
statements again. Once she was employed. And the

970
00:34:38,892 --> 00:34:40,637
rationale they gave for that was that at

971
00:34:40,637 --> 00:34:41,827
this school board meeting,

972
00:34:42,700 --> 00:34:44,682
the statements came up, they were talking about

973
00:34:44,682 --> 00:34:45,054
it

974
00:34:45,571 --> 00:34:47,082
and miss Mc said,

975
00:34:48,672 --> 00:34:51,398
I apologize for the statements or I apologize

976
00:34:51,534 --> 00:34:53,856
for for how they came across loss, but

977
00:34:53,856 --> 00:34:55,845
she didn't actually disc claim the statements.

978
00:34:56,561 --> 00:34:57,914
And the court looked at that and said,

979
00:34:58,153 --> 00:35:00,244
well, she's not claiming them, so she's basically

980
00:35:00,540 --> 00:35:02,505
reaffirm them and making these statements again went

981
00:35:02,624 --> 00:35:05,017
she's a government employee, and that seems like

982
00:35:05,017 --> 00:35:05,517
another

983
00:35:06,213 --> 00:35:08,207
concerning part of the test that they're applying

984
00:35:08,207 --> 00:35:09,643
here. I am so glad you raised that.

985
00:35:09,802 --> 00:35:10,999
That really stood out to me as well,

986
00:35:11,159 --> 00:35:13,165
and it seems like you could have situation

987
00:35:13,165 --> 00:35:13,665
where

988
00:35:14,118 --> 00:35:16,422
your boss calls you in basically and says,

989
00:35:16,978 --> 00:35:18,884
hey, I see these social media posts you

990
00:35:18,884 --> 00:35:20,473
made a couple years ago, and I think

991
00:35:20,473 --> 00:35:22,559
they're they're kinda problematic. Do you still think

992
00:35:22,559 --> 00:35:24,951
those things? And you say yes. And then

993
00:35:24,951 --> 00:35:26,705
essentially, that's like you making all of that

994
00:35:26,705 --> 00:35:28,379
speech on the job, which just seems crazy

995
00:35:28,379 --> 00:35:29,789
to me. I'm glad you raised that. Kinda

996
00:35:30,148 --> 00:35:30,786
And Sean, you're,

997
00:35:31,503 --> 00:35:34,314
a frequent participant in the the social media

998
00:35:34,372 --> 00:35:35,806
space. And I follow you on Twitter. And

999
00:35:35,886 --> 00:35:37,400
I I think I've ever seen anything.

1000
00:35:37,734 --> 00:35:40,203
That has offended me or or or wanted

1001
00:35:40,203 --> 00:35:42,193
me to disrupt the school environment. I'm curious

1002
00:35:42,193 --> 00:35:44,025
if you had any thoughts arising out of

1003
00:35:44,025 --> 00:35:45,538
your own experience. You know, I think what's

1004
00:35:45,697 --> 00:35:47,547
Ironic about the tone that we've been talking

1005
00:35:47,547 --> 00:35:49,781
about judicial opinions is is that I think

1006
00:35:49,781 --> 00:35:51,378
some of it is driven by social media,

1007
00:35:51,537 --> 00:35:53,931
which is that if you have an opinion

1008
00:35:53,931 --> 00:35:55,378
that's a z or or at least in

1009
00:35:55,378 --> 00:35:56,171
your own mind,

1010
00:35:56,726 --> 00:35:59,184
it gets shared, and people who are in

1011
00:35:59,184 --> 00:36:01,586
the know, you know, say you're really clever

1012
00:36:01,721 --> 00:36:02,221
and

1013
00:36:02,608 --> 00:36:04,671
you know, like like, I think any sort

1014
00:36:04,671 --> 00:36:07,132
of writer who takes pride. You want people

1015
00:36:07,132 --> 00:36:09,195
to say, hey, this is cool. And so

1016
00:36:09,195 --> 00:36:11,196
something that sort of get you noticed is

1017
00:36:11,196 --> 00:36:12,967
to use these kinds of

1018
00:36:13,420 --> 00:36:15,089
tricks. And I think there's a couple problems.

1019
00:36:15,407 --> 00:36:17,098
1, the number of

1020
00:36:17,569 --> 00:36:20,126
judges as true of people who think they're

1021
00:36:20,126 --> 00:36:22,203
funny is probably far greater than the number

1022
00:36:22,203 --> 00:36:24,360
of you who are actually funny, and it's

1023
00:36:24,360 --> 00:36:26,360
even harder in the judicial context where we

1024
00:36:26,360 --> 00:36:28,343
are basically on pain of contempt forced to

1025
00:36:28,343 --> 00:36:30,485
laugh at your jokes, whether they're funny or

1026
00:36:30,485 --> 00:36:30,723
not,

1027
00:36:31,675 --> 00:36:32,807
harder And so I think there can be

1028
00:36:32,807 --> 00:36:34,244
a little bit of an echo chamber of

1029
00:36:34,244 --> 00:36:36,000
if you're only surrounded by people who are

1030
00:36:36,000 --> 00:36:36,580
sort of

1031
00:36:36,958 --> 00:36:38,714
told to tell you or make you believe

1032
00:36:38,714 --> 00:36:40,311
that you're funny, you believe that you are.

1033
00:36:41,044 --> 00:36:43,521
And second, that there is, of course, a

1034
00:36:43,521 --> 00:36:45,519
push towards accessible writing, but I think there

1035
00:36:45,519 --> 00:36:48,476
was a difference between clear writing and flip

1036
00:36:48,476 --> 00:36:48,795
writing.

1037
00:36:49,848 --> 00:36:51,761
You know, you have people like Judge Sutton

1038
00:36:51,761 --> 00:36:54,791
who are maybe not, you know, the funniest

1039
00:36:54,791 --> 00:36:57,103
in their opinions, but are remarkably clear and

1040
00:36:57,103 --> 00:36:59,431
use plain language. And you can understand what

1041
00:36:59,431 --> 00:36:59,989
they're saying.

1042
00:37:00,707 --> 00:37:02,780
And then there are sort of the writers

1043
00:37:02,780 --> 00:37:04,216
who I think think they're the next elena

1044
00:37:04,376 --> 00:37:06,928
C, who is actually quite funny and also

1045
00:37:06,928 --> 00:37:09,019
a very good writer and who can do

1046
00:37:09,019 --> 00:37:09,260
that,

1047
00:37:09,820 --> 00:37:11,260
but it's also 1 of those things where

1048
00:37:11,260 --> 00:37:13,260
it's a really high degree of difficulty unless

1049
00:37:13,260 --> 00:37:14,460
you're are certain that you can land it,

1050
00:37:14,619 --> 00:37:15,820
you really shouldn't try.

1051
00:37:16,314 --> 00:37:17,908
And there are some great examples of funny

1052
00:37:17,908 --> 00:37:20,218
z in opinions. You know, the classic example

1053
00:37:20,218 --> 00:37:22,051
is John Roberts had an opinion in the

1054
00:37:22,210 --> 00:37:24,441
Supreme court, which was about whether At and

1055
00:37:24,680 --> 00:37:26,925
T can have personal private and the Court

1056
00:37:26,925 --> 00:37:29,630
unanimously held a Didn't. And his last line

1057
00:37:29,630 --> 00:37:31,220
was we trust that At and T will

1058
00:37:31,220 --> 00:37:33,384
not take it personally. And what mit it's

1059
00:37:33,384 --> 00:37:35,618
not only funny, but it's good because 1,

1060
00:37:35,777 --> 00:37:37,134
it has something to do with the case.

1061
00:37:37,373 --> 00:37:39,368
It makes the point he was trying to

1062
00:37:39,368 --> 00:37:41,297
say, which is that you know, At and

1063
00:37:41,457 --> 00:37:42,972
T is not the kind of thing that

1064
00:37:42,972 --> 00:37:44,349
has personal anything.

1065
00:37:45,206 --> 00:37:47,279
And second, you're not punching down. You know,

1066
00:37:47,439 --> 00:37:49,193
At and T will not have its feelings

1067
00:37:49,193 --> 00:37:51,119
hurt by you making fun of it. The

1068
00:37:51,119 --> 00:37:52,628
same way it would be, you know, an

1069
00:37:52,628 --> 00:37:53,739
individual who lost your job.

1070
00:37:54,612 --> 00:37:56,437
So you just really have to think hard

1071
00:37:56,437 --> 00:37:58,360
before you deploy these kinds of rhetoric I

1072
00:37:58,440 --> 00:38:00,200
I think Sean is right that the court

1073
00:38:00,200 --> 00:38:03,000
was definitely writing here for a broader audience

1074
00:38:03,000 --> 00:38:05,000
in a way that hampered the opinion, but

1075
00:38:05,000 --> 00:38:06,414
the where... The place where you can best

1076
00:38:06,454 --> 00:38:07,805
see it is actually a place where I

1077
00:38:07,805 --> 00:38:09,155
agreed with the court on the on the

1078
00:38:09,155 --> 00:38:09,632
substance,

1079
00:38:10,505 --> 00:38:12,412
though not the tone, which is a footnote

1080
00:38:12,412 --> 00:38:15,272
in which the court scribes qualified immunity as

1081
00:38:15,272 --> 00:38:15,669
follows.

1082
00:38:16,479 --> 00:38:18,553
For those new to all this legal legal

1083
00:38:18,553 --> 00:38:21,425
mum jumbo, qualified immunity is a judge created

1084
00:38:21,425 --> 00:38:23,474
doctrine, which lets public officials off the hook

1085
00:38:23,594 --> 00:38:26,148
for money damages when they decide open legal

1086
00:38:26,148 --> 00:38:29,341
questions in reasonable will ultimately wrong ways, which...

1087
00:38:29,660 --> 00:38:32,110
Yeah. That's right. But again, the fact that

1088
00:38:32,229 --> 00:38:33,665
it starts with for those nude to all,

1089
00:38:33,824 --> 00:38:35,579
this legal Mum jumbo, I think is a

1090
00:38:35,579 --> 00:38:37,733
clue that the audience that the the court

1091
00:38:37,733 --> 00:38:40,365
was writing here for was perhaps not

1092
00:38:40,923 --> 00:38:43,328
the parties and lawyers who are going to

1093
00:38:43,328 --> 00:38:45,159
be referencing this case later. And, Sean, I'm

1094
00:38:45,159 --> 00:38:46,909
also glad you brought up Judge Sutton because

1095
00:38:46,909 --> 00:38:49,138
another thing I like about his writing style

1096
00:38:49,138 --> 00:38:51,445
is that he very often acknowledges when things.

1097
00:38:51,778 --> 00:38:52,335
Are difficult,

1098
00:38:53,210 --> 00:38:55,276
and that it's not always easy. And I

1099
00:38:55,276 --> 00:38:56,946
think in a case like this. I mean,

1100
00:38:57,025 --> 00:38:58,775
there... It is a tricky issue because if

1101
00:38:58,775 --> 00:39:00,921
you're running, you know, a government institution like

1102
00:39:00,921 --> 00:39:01,574
us are school.

1103
00:39:02,934 --> 00:39:04,934
You know, both of the jurisdictions and issue

1104
00:39:04,934 --> 00:39:07,574
here are more affluent, very progressive areas in

1105
00:39:07,894 --> 00:39:10,466
Massachusetts, 1 right across the bridge and Cape

1106
00:39:10,626 --> 00:39:12,061
Cod, the other on the North shore.

1107
00:39:12,779 --> 00:39:14,295
And so, like, I could definitely see, you

1108
00:39:14,295 --> 00:39:15,969
know, if this teacher comes in, and she

1109
00:39:15,969 --> 00:39:18,920
said controversial things about Lgbt, trans issues,

1110
00:39:19,414 --> 00:39:21,655
and immigration and race, that it could cause

1111
00:39:21,655 --> 00:39:23,175
a problem. But on the other hand,

1112
00:39:23,815 --> 00:39:24,215
obviously,

1113
00:39:24,775 --> 00:39:26,454
if she were saying that in a different

1114
00:39:26,454 --> 00:39:26,829
place

1115
00:39:27,269 --> 00:39:28,708
or if she had viewpoints that were more

1116
00:39:28,708 --> 00:39:29,208
con

1117
00:39:29,746 --> 00:39:31,585
to the people that she was, you know,

1118
00:39:31,744 --> 00:39:32,384
living near,

1119
00:39:33,103 --> 00:39:34,222
then it would be less of an issue.

1120
00:39:34,382 --> 00:39:36,275
And so there is implicitly sort of a

1121
00:39:36,394 --> 00:39:39,508
He veto or viewpoint discrimination going on here.

1122
00:39:39,907 --> 00:39:41,264
And I think that when you then have

1123
00:39:41,264 --> 00:39:44,559
a judge writing an opinion that's kinda dismissive

1124
00:39:44,857 --> 00:39:45,916
towards the plaintiff

1125
00:39:46,309 --> 00:39:49,417
you know, she's compounding that viewpoint discrimination that's

1126
00:39:49,417 --> 00:39:52,605
going on because she clearly also doesn't, you

1127
00:39:52,605 --> 00:39:54,934
know, share the views. Of the plaintiff in

1128
00:39:54,934 --> 00:39:55,414
this case.

1129
00:39:56,055 --> 00:39:57,434
And I think that it would be

1130
00:39:57,815 --> 00:39:59,894
not just a better opinion. That was more

1131
00:39:59,894 --> 00:40:01,985
respectful, but I think that it would be

1132
00:40:01,985 --> 00:40:03,818
more in line with the first amendment to

1133
00:40:03,818 --> 00:40:06,128
acknowledge, like, this is a tricky issue where

1134
00:40:06,128 --> 00:40:07,800
we've got government employment on the 1 hand,

1135
00:40:07,960 --> 00:40:10,052
but also free speech on the other, and

1136
00:40:10,364 --> 00:40:12,854
to take a respectful tone that doesn't compound

1137
00:40:12,911 --> 00:40:14,902
the first amendment violation, I think would have

1138
00:40:14,902 --> 00:40:16,972
been the preferable way to go about it.

1139
00:40:18,979 --> 00:40:20,977
Well, thank you all so much for taking

1140
00:40:20,977 --> 00:40:21,717
the time

1141
00:40:22,175 --> 00:40:24,573
to to chat with us about these cases.

1142
00:40:24,893 --> 00:40:27,530
Thank you again to Hogan Levels for hosting

1143
00:40:27,530 --> 00:40:27,690
us.

1144
00:40:28,500 --> 00:40:30,962
And on behalf of my colleague Anthony Sanders,

1145
00:40:31,121 --> 00:40:33,923
our our regular hosts. I'll conclude just by

1146
00:40:33,979 --> 00:40:36,123
encouraging all of you to get engaged.

1147
00:40:45,820 --> 00:40:48,132
So thank you to everybody for coming.

1148
00:40:48,769 --> 00:40:50,842
So for those on this half of the

1149
00:40:50,842 --> 00:40:52,835
room, I guess, they're the summer associates here.

1150
00:40:53,715 --> 00:40:55,059
It's like bride side groom side.