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I was born ready.
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Sarah Isgur
Welcome to Advisory Opinions. I’m Sarah Isgur, that’s David French, and we are here with an exciting episode where we will go behind the scenes of The View, where I talked about the Supreme Court in front of a live TV audience, you don’t get to say that every day, as well as walk through a new Washington Post story where the headline enraged us. And then we will talk about questions you guys had about Chiles and the conversion therapy case as it applies to abortion, and restrictions on what doctors can say or must say in the context of abortion providers, as well as AI. I mean, how wrong can David be? Like, you guys are so up in arms about this, so let’s see if he can answer some of your analogies. Is AI more like Excel, more like Adobe Photoshop? We- you sent them all, and I really appreciate it. And we will continue Circuit Extravaganza, moving now to the Eighth Circuit and the Fourth Circuit. Are you required to have a religious exemption for your vaccine mandate for students in public school? Let’s find out on Advisory Opinions. All right, David, uh, we are recording this. I have just wrapped up going on The View. I am still standing. I not only survived, David, I, I had a great time.
David French
Yeah. Tell us about it, Sarah. Now, I’ve watched it, and I thought you did a fantastic job, but, like, give us the flavor, the color, like, the, the play-by-play. The people wanna know.
Sarah Isgur
I was disappointed because I knew that if we had had just a little bit more time, we were gonna, like, get to talk about some of the more sort of gossipy parts of the book, Justice Kagan playing poker and stuff like that, and we ran out of time. So that is the bad part. But the good part was, and what you couldn’t see on air, you know, the, The View host that I was sort of, like, most trepidatious of was Sunny, right? ‘Cause she’s a lawyer. And I was seated next to her, and I was like, “Oh, no, this could… Who knows?” [laughs] And instead, like, she’s the one plugging SCOTUSblog, and she was so, so kind to me when I sat down, and we were, you know, if you actually pay really close attention, we’re talking when the camera starts rolling for the segment, and then the second the camera’s off again, we’re, like, you know, chit-chatting and, um, it was just, they were so generous. Um, so it was, it was actually really fun. I had a good time, and I loved getting to explain the Supreme Court to the audience. And the second I’m explaining that, like, actually we’re blaming the wrong branch and, like, you know, point to Congress, all I see are heads nodding in the audience. Once you give people even the simplest explanation of this, they’re like, “Oh, totally. Sorry. Yeah, I get that now.” Yeah. It, like, makes perfect sense to people.
David French
Oh, totally. It’s like an 80/20 sort of understanding issue, right? I mean, but I also thought it was very, uh, uh, because the crowd is pretty– it’s a pretty liberal crowd, and so, you know, you’re– they might ha- like, have a little side eye you walking in, but you did something I thought that was pretty smart to, like, establish your independence when you said, you know, “There are just so many ways Trump could lose the birthright citizenship case.” And then you could almost feel this, like, “Oh, I like this person. This person might say something I really find interesting.”
Sarah Isgur
You know, the only other show that I really do with a live audience is Bill Maher, and it does change how you approach the whole thing, ’cause, like, you’ve now got three audiences. It’s like a three body problem. You’ve got the people you’re talking to on stage, you’ve got the audience that’s in the studio, and you’ve got the audience that’s watching. And everyone will tell you, like, in media training, like, “Well, the audience watching is the biggest audience, so, like, that’s the only one you should focus on,” but the other two audiences affect that audience. [laughs] That’s the whole point. That’s the three body problem.
David French
And the other two audiences are right in front of you, so every cell in your body is saying, “I’m responding to this audience that’s right in front of me.” But yeah, Bill Maher, uh, real time is, like, a trigger phrase for me, Sarah, because I’m g- I, you know, I’m coming– I’m, you know, I’m scheduled to go back for the first time in years, but it was probably, the original time I did it might have been, like, my worst media appearance in five to 10 years. And it’s not that I did anything really embarrassing, it’s just that it was so thoroughly pedestrian that a- I think people might have had fallen into a coma of boredom just during, when, when I was speaking.
Sarah Isgur
Speaking of falling into a coma, David, uh, we got an email from a listener who says that they listen to you because your voice is so calming while they sleep.
David French
[laughs] That, that was something else. So I’m gonna choose, Sarah, to take that as a compliment, that in di- that in difficult, troubled times, that the sound of my voice is reassuring enough that somebody can, like, drift off to sleep. So I’m gonna take it in the positive sense and not in the negative sense of, “You are so boring, you put me to sleep.” I’ll, I’ll put it in, “So calming that my soul feels at peace,” versus, “So boring I can’t keep my eyes open.” It’s 50/50 how to interpret that, and I’ll, I’ll take it the positive 50%.
Sarah Isgur
That’s what we do here. We’re glass half full people. I wanna get to some listener emails and questions that we have before we get to part two of Circuit Extravaganza. The first was a listener who asked us to weigh in on this Washington Post piece. Here’s the headline: “Supreme Court remade by Trump ushers in historic defeats for civil rights. The court is the first since at least the ’50s to reject claims in a majority of cases involving women and minorities.” This is by, uh, Justin Jubinville, and, uh, there’s a- another-Couple lines in here: “The Court has entered a new era of extreme partisanship. None of the past seven decades has been as starkly polarized.” David, you’ve got some beef with this piece. Would you like to start the beefing?
David French
I’ve got some pretty good beef with it. So let’s just look at the actual numbers. So if you wanna go back, it was the Warren Court from ’53 to ’69, where 74% of rulings were pro civil rights, okay? Look at the dates, ’53 to ’69, okay? You are dismantling Jim Crow at this point. I’m surprised it’s not higher than 74%. I mean, the, the comprehensive way in which American law in the 1950s and early 1960s discriminated against Black Americans, discriminated against women, is not…
David French
Let’s just put it this way. It is unrecognizable to us today. It’s hard to wrap our minds around it, us today. Now then, let’s look at the percentage after.
Sarah Isgur
Can I note that, by the way? The, the denominator, so 74% of 192 cases, ’cause the no- denominator’s gonna be important later on.
David French
Then you go to the Burger Court, ’69 to ’86, 52%. Then the Rehnqu- uh, 52% of 465. Then you get to 52% in the Rehnquist Court of 274. Then you get to the Roberts Court, 52% of 159. Now you get to Roberts two, and it’s 44% of
David French
So it’s a lot smaller sample size. And by the way, the difference between 52%, the 52% that existed from ’69 to 2020, which for those keeping score at home, is 51 years. That’s 52, 52, 52, and then you go four years with a much smaller sample size that’s n- 44, which is not a giant difference, guys. It’s not a giant difference. And I haven’t seen the detail of the study, but I, I do wonder, like for example, it says, “Justices have also pared back civil rights in other cases, most notably in striking down affirmative action in college admissions.” Um,
David French
do you wanna say it or do I wanna say it? Striking down race discrimination isn’t a anti-civil rights ruling, guys.
Sarah Isgur
Also, to be clear, remember the plaintiffs in that case were Asian Americans. So it’s a within the margin of error, you know, so to speak, you know, it was 52% out of 1,000 cases for 50 years,
Sarah Isgur
and then it’s 44% out of 50 cases over four years at a time when the number of cases has dropped per year, the number of cases the Court takes has dropped. You, of course, have the fact that the Court decides which cases to take in the first place, so it’s not a random sample set, if that makes sense. Like, not only to your point, David, that like the civil rights movement isn’t random, y- you know, obviously in the Warren Court era, but the Court chooses which cases to take, and it’s based on the circuit splits and where the problems and disagreements in the law are. That’s going to change over time. And again, it doesn’t seem to be much of a change at all for this blaring headline that civil rights have been decimated and this is the most partisan court ever. [chuckles]
David French
And some of the cases, so for example, the ruling against the Colorado law banning conversion therapy, I just think there’s a, a very big difference between saying civil rights have lost on the merits versus civil rights colliding with the First Amendment. Because then you, you rule the other direction, and you might say Roberts Court, less hospitable to the First Amendment, right?
Sarah Isgur
Oh man, that’s what I used to do as an opposition researcher. No matter which way you voted, like for puppies or for kittens, I would say you voted against kittens or against puppies. So like that’s exactly what I used to do, is you voted against civil rights or you voted against the First Amendment, and like I would hit you either way. And you’re right, David, so they included– I actually can’t– They mention Chiles, but I can’t tell if Chiles is included in the denominator of the 50 cases. But Chiles, 303 Creative, where you have civil rights going up against a First Amendment interest.
David French
And also, you know, they also try to track conservative rulings by chief justice era. Now this is an interesting– Where does Chiles fit? Where does a First Amendment case fit in a, quote-unquote, “conservative ruling court”? Because the First Amendment, to me, seems to be an ideology-free zone in this sense. I mean, I- it’s not an ideology-free zone, but only in this sense, which is I’ve been doing First Amendment free speech law for, I think the first case I volunteered on was 1992. So here we are, it is 34 years later, and here’s what I’ve seen. When outside observers see you rule for a liberal who’s speaking freely, that is a liberal ruling. When outsiders see you rule for a conservative who’s speaking, that’s a conservative ruling. No, it’s not. So what is it? It’s a First Amendment ruling. Is that conservative? Is that liberal? Well, man, it depends on who’s in power and what is the salience of that ideology in the moment. Because when I was coming up as a young conservative, especially on campus, we had free speech was our issue, man. And then now, as you see the free speech assault on campus from the Trump administration, free speech is much more of a liberal issue. I mean, it just does flip back and forth. And so, you know, I, I look at these things, and it feels inflammatory without being illuminating.
Sarah Isgur
So in the chart about conservative rulings by chief justice era, Burger, we’ll start with 1969 again, 54% conservative out of 2,200 cases. Rehnquist, 53% out of, uh, this is kind of fun, 1,776 cases. [chuckles] Roberts one, 51% out of 982 cases. Roberts two, 54% out of 270 cases. Those all look identical to me, basicallyLike again, especially when you keep in mind the problems that you’re pointing out. First, there’s the denominator problem, there’s the, these don’t easily all code conservative or liberal, and this is often the problem with some of the social science in these areas. The coding itself is imbued with value-based judgments. You know? Like, are they basing it on the plaintiff or are they basing it on the judicial issue at hand, and are they deciding which one they’re basing it on based on their own, their own choices, basically. So in s- you know, in 303 Creative, it’s based on the plaintiff, but in this other case, it’s based on the fact that it’s a Voting Rights Act case, for instance, or something like that. And it’s like, well, you can’t– If you’re picking and choosing, whether it’s based on the plaintiff or something else, that’s not objective, that’s you deciding whether you think it’s conservative-coded or, uh, uh, you know, judicial issue-coded, so to speak.
David French
Well, and, you know, so many things, like let’s just talk for a minute about, uh, an issue we may be revisiting really soon in this podcast. That’s a hint of potential future guest. The ruling regarding Native American tribes in Oklahoma, Justice Gorsuch’s ruling essentially granting a lot more sovereignty to Native Americans. Is that a liberal ruling or is that a conservative ruling? If you’re talking about political coalitions, since Native Americans, I believe, tend to vote more Democratic, you might say, well, since a, a liberal Democratic constituency won, it’s a liberal ruling. But it’s a ruling rooted in the original public meaning of the Constitution and various treaties, so is that a conservative ruling ’cause it’s an originalist writing it? A lot of these things just don’t code very neatly down one side of the aisle or other. The one area that I did think that was, actually, was religion.
Sarah Isgur
[laughs] Oh my God, you took the words out of my mouth. It’s like, okay, we have crapped on two of these pieces of data, but the third piece of data is really interesting, and I think actually illuminating about the Court itself. This is the percent of pro-religion votes by party of appointing president. And there’s just no question that the Democratic percentage, you know, Democratic appointees ruling for the pro-religious side has stayed about the same over time. You see a slight uptick in Roberts II, but not too much. We’re in, you know, the 42 to 58 percentage category the whole time. But the percentage for the Republican-appointed nominees, uh, ticks up a lot, you know, Warren to Burger to Rehnquist to Roberts I to Roberts II. That is interesting to me.
David French
Well, and you also see that in the results. So it has been, oh gosh, when was CLS v. Martinez decided? You know, it’s been I think since 2010 that we’ve had a significant loss for religious liberty at the Supreme Court. That’s a long time, and that is because the Republican-nominated majority has been very friendly to religious free exercises, uh, assertions or religious free exercise. But Sarah, and we’ve talked about that at length, I mean, it’s been forever since there was a significant religious liberty loss. But it’s very interesting to me,
David French
if you look at the blue/red difference, the red was always at least a little bit more friendly towards religion, but it’s not like the blue was just crapping on it. I mean, if your lowest percentage is 41 or 42%, and your highest percentage is almost 60, like 57, 58%, that, that means i- if you were a religious plaintiff going in, or a religious petitioner going into the Supreme Court, you were gonna win even the blue votes about half the time, which utterly is contradictory to a lot of the hysterical rhetoric you see every four years that the entire fate of religious freedom of the church is at stake. No. No. You’re gonna go from winning maybe 97% of the time if you had blue Supreme Court to almost 60% of the time under current numbers. Guys, I might agree with the 97% more than I agree with the 60%, but it’s not the apocalypse, the distinction between the two.
Sarah Isgur
All right, David. Speaking of Chiles and AI, boy, did we get some emails from you guys. And, uh, I wanted to answer some of them. Okay, so Chiles, remember, this is conversion therapy and whether a therapist licensed by the state of Colorado can be barred from saying certain things about gender identity and sexual orientation. In this case, whether the state can bar someone from trying to help someone, for instance, change their sexual orientation or feel comfortable with the sex that they were born as. The Court 8-1 said, “Yeah, that’s a First Amendment problem.” Justice Jackson in the dissent was like, “Nope, if you’re licensed by the state, then everything you’re doing within your profession is conduct, and therefore, that trumps the First Amendment issue.” There’s your 8-1 lineup. Uh, we talked about suicide,
Sarah Isgur
uh, and that we still thought you could have a law saying you can’t encourage suicide among minors because that was viewpoint neutral and content-based. And we had several listeners that are like, “Wait a second, that seems pretty viewpoint-based to me because you are saying you’re against suicide rather than being for suicide.” But David, I feel like there becomes this sort of level of generality problem, gray area problem between what is a viewpoint neutral discussion versus what is a content neutral discussion, and it’s almost more of a spectrum than it is a black and white question.
David French
Yeah, and also suicide is different. You know, you don’t have a right to assisted suicide. Um, we have had criminal prosecutions of people who have tried to, uh, manipulate people into suicide. It’s a category error to conflate the two is one thing. And the, the other thing, though, this is a consistent theme with a lot of the emails that we got. A lot of emailers seem to have in their mind, “Here is a definition I have in my brain of conversion therapy.”And the thing that I have in my brain is this awful, horrible thing that has really hurt people. And as we said before, the, the conversion therapy that, you know, uh, has led to such revulsion, rightful revulsion, often included things like electroshock therapy and other kinds of aversion therapy that were just brutal. And so people who hear the words conversion therapy, it puts in their mind a thing, but the thing you have in your mind is not what is in the statute. Let me put it this way. S- if you send us an email and it just says, “Conversion therapy means X, Y, Z,” that’s telling me you haven’t read the statute. So send an email that says, “Attempting to change behaviors,” which was part of the statute, that attempting to change behaviors is going to be a abusive malpractice kind of, uh… It’s a, a malpractice order abuse by a therapist, and I’m sorry,
David French
I just don’t see that. Uh, I don’t see that. So, uh, that- that’s sort of a meta commentary on the questions, ’cause 99% of the questions seem to be taking conversion therapy as a thing that the correspondent had in their minds, and then what they probably have in their minds is this very brutal, awful thing that any given aspect of it would either be, A, easily bannable, like electroshock therapy, or easily malpractice, like if you’re suing over electroshock therapy. But the… I’ll say it again, the statute isn’t confined to those things, and so when it’s not, you have to wrestle with those things that are encompassed in the statute.
Sarah Isgur
All right, David, we got a lot of questions for Chiles applying this to abortion. So let me start with this one. “In Planned Parenthood versus Rounds, the Eighth Circuit upheld a law requiring abortion providers to tell patients that an abortion terminates the life of a whole, separate, unique, living human being, and that the woman has an existing relationship with the fetus protected by the US Constitution. This case did not get appealed. Do you believe the conservatives on the Court would have sided with the physicians and overturned the law? If we agree that Chiles was correctly decided, does it follow that Rounds was decided incorrectly? Compelled speech seems similarly problematic to me in both contexts, but I would value your perspective on why they might be viewed differently.”
David French
So here’s my view on mandatory disclosure laws, and it’s the same on abortion as, like anything else.
David French
Requiring the disclosure of known side effects of treatment, such as before you go under anesthesia, you need to know there is a non-zero chance you will never come out of anesthesia. That is something that is worth knowing before you agree to anesthesia, for example. It g- allows you to make an informed decision. There’s an entire category of malpractice liability and litigation around a lack of informed consent. If you’re not notified of known material dangers to a procedure, there’s gonna be a problem. However, so if you’re going to require, uh, req- uh, require disclosure that, say, an abortion pill could cause… I haven’t looked at the side effects, but, you know, so I just, I’m just saying this, excessive bleeding. Let’s just, just for the sake of argument, excessive bleeding. Yes, you would do that in the same way that you require disclosure of side effects like of, uh, you know, medications you see on television where, you know, people are running through on the beach talking about this or that, you know, how this, how this medication changed their lives and restored their mobility, and then you have, “Oh, by the way, you also might die from explosive diarrhea.” Like, that [laughs] that is not a violation of free speech rights under normal commercial speech principles.
Sarah Isgur
By the way, this is, this is a similar thing to, like, why you can force companies to put calorie counts on their menus in certain states. We’ve said… Like, those companies have sued and said, “You’re violating our free speech rights,” and they’ve been like, “Eh, it’s factual information.” I… But, like, this on a spectrum, right? On the one end of the spectrum is an abortion has certain medical risks like, uh, bleeding, which is a known, agreed-upon risk. Maybe next on that spectrum, if you agree with me, David, are claims about, uh, abortion-breast cancer links or elevated suicide risks that some states require as disclosures but that some major medical organizations dispute. What about that?
David French
Yeah. That’s a very good question. I would say if you have a… It, it all depends on the strength of the evidence. I think you would have a f- you would have to have a fact-based determination on the strength of the evidence, and at the, the bottom line is the legislature’s gonna be g- given a degree of deference to make a tough call, but if you’re just making stuff up, no. And then if you do something like a David French-approved message, which would be, “This is a human being created in the image of God, worthy of protection both morally and legally from conception until natural death,” that would be a viewpoint, one I hold strongly, but it would be a viewpoint that would be not able to be compelled [laughs] by the government.
Sarah Isgur
So that’s the next… That’s the end, on the other end of the spectrum. That’s the Rounds case. Uh, the quote is, your, uh, it terminates the life of a, quote, “whole, separate, unique, living human being.” That is not a risk to you, a medical risk, uh, to performing this medical procedure. So you’re saying if we’re keeping with Chiles, and they had appealed that to the Supreme Court and the Supreme Court had granted cert, they would have to strike down that law.
David French
I think so. I think so.
Sarah Isgur
I totally agree, 100%. [laughs] I don’t… Like, I… Yep. Uh, yeah, I mean, I think that’s just a spectrum. One end’s very easy. The other end is very easy. The, the middle ones, as you say, David, I think you get deference to the state legislature within reason.
David French
If it’s a medical assessment or medical judgment, yeah, you give deference within reason. But if it is a, a declaration of values, the deference diminishes dramatically to the point of no deference. [laughs]
Sarah Isgur
All right, David, when we get back from this commercial break, we will go to AI, because if we got lots of questions about Chiles and abortion, let me tell you how many emails we got on AI with all of the analogies and metaphors. And guys, I just… I love it so much because so many of you were not lawyers, but you were thinking exactly like a lawyer. You were doing great A+ law student work here, and you should all be really proud of yourselves. And David, you’ll note that email that I read, I just, I really loved the way that it ended about that Rounds case, and I’m just gonna repeat it again. “Compelled speech seems similarly problematic to me in both contexts, but I would value your perspective on why they might be viewed differently.” That is a curious, well-sent email. I love AO listeners. Thank you. So when we get back, we’re gonna do it for AI. All right, David, questions upon questions upon questions. Last time we were answering a question on AI liability compared to gun liability, and you and I got into a back and forth on that. Follow-up, and again, we had so many different analogies from listeners, but I’m going with this one: “When someone uses Adobe Photoshop 2025 to make child porn, everyone understands that the company Adobe does not have any liability for that. It’s entirely on the user. When someone uses Grok to make child porn, I find it strange that we would assign liability to AI. I understand that there are cases like is OpenAI liable when ChatGPT tells a suicidal person to kill themselves, which are novel legal questions with reasonable arguments to be made, but I thought who is to blame for software generating images was generally settled, and I don’t see why AI would change that. So under what legal framework is AI different?” To David, just to be clear. Like they… Yeah, all of these are to you.
David French
Let me try to explain like this. Let’s use an offline example. If I buy a canvas and paintbrushes, and I paint, use the canvas and the paintbrushes to, to paint lifelike child sex, sexual abuse material, you can’t sue Hobby Lobby for selling me the canvas and the paintbrushes. Or if I send an image to a printer and the printer reproduces the image I send, you can’t sue Hewlett-Packard ’cause their printer printed the image I sent. If I hire a portrait artist to create a portrait of child sex abuse material, that portrait artist cannot create a portrait of child sex abuse material even though I’m hiring them to do it, um, or a photographer to create it. Uh, they can’t do it even though I’m hiring them to do it. The AI… Adobe Paint is more like the canvas and the paintbrush. AI actually does the whole thing like the portrait painter. It’s like lay… It’s like you walk i- That’s part of the appeal of AI is it does the work for you. So it’s like walking into the lobby of a store and saying to the AI, “Hello, Mr. Chat. I… Here is the product I want you to create for me today.” And then it’s just like a portrait painter, that AI does it, and that’s what makes AI so compelling is that it doesn’t depend on your artistry. Like, if I have Adobe Paint Shop, I’ve still gotta be a pretty decent artist. But the other day I asked Gemini to do a picture of one of my best friends in wizard robes walking with a cane, and it did it. And I have no artistic ability, but I was able to send a picture of my friend in wizard robes, it, and it was so high quality he wants to blow it up [laughs] and put it in his office maybe. And so that’s the difference. It’s the same analogy, say, with when we talked about school shooting. The manufacturer of the, of the AR-15 isn’t responsible for the school shooting. But if I went to Remington and I said,
David French
this is awful analogy, but go kill somebody, and a Remington employee did it at my request, they’ve got legal liability. That’s how to make the distinction between typical software and AI, which is supposed to be operating independently is ex- not exactly the right word, but the whole appeal of it is that it is doing stuff on its own. It is researching on its own. It is creating prose on its own in a way that simulates a human acting independently. That’s why it’s called artificial intelligence. And so that’s why you have a, I believe, a very significant liability problem when AI starts generating pornography, for example.
Sarah Isgur
So guys, you haven’t heard a lot from me about this because I’m still really torn. I’m talking offline to some of the top AI experts and thinkers to try to wrap my head around how to think about some of this stuff. And, uh, David, I’m finding this back and forth between our listeners and you to be really productive to my own thinking about it. But I have to tell you, like, I don’t know. I’m not there yet on either side. I’m… My jury, my brain jury [laughs] is still out.
David French
Well, I’m glad that we can have this dialogue for you, Sarah. It’s, it’s… Yeah. [laughs] I’m very glad.
Sarah Isgur
Okay. Uh, I think it’s time for Circuit Palooza, or the continuation of Circuit Palooza. We’ve got two Eighth Circuit cases and two Fourth Circuit cases, and they’re all just the awesomest cases. Uh, David, let’s start in the Eighth Circuit because frankly, the Eighth Circuit, you know, they just get short shrift. They’re little guys up there. The Eighth Circuit, for those who do not have all of their circuits memorized, is Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota, South Dakota. Population relatively lowNumber of circuit, you know, seats, 11. It just, it’s pretty small compared to some of the other ones. But man, they got some spicy stuff going on. So these are two cases. They’re both what we would refer to as like interim docket cases. This is just sort of what the, you know, preliminary injunction phase type thing will look like. Uh, let’s start with this first one, David, ’cause I pretty interested in this one. Okay, Senate File 496, Iowa public school classrooms prevents a school district from providing instruction relating to gender identity or sexual orientation to students in kindergarten through grade six. It requires school officials to notify parents if a student asks for the use of a pronoun that does not match the school’s registration records or requests an accommodation that is attended to affirm the student’s gender identity. David, the plaintiffs were some teachers, nonprofit advocacy organization.
Sarah Isgur
They argued that it was overbroad and unconstitutionally vague,
Sarah Isgur
and the Eighth Circuit at this sort of preliminary stage said, “No, it’s not. You know what this means.” And I guess, David, uh, I’m sort of curious how to compare this to the Ninth Circuit case. Uh, maybe we have a circuit split, or maybe you can distinguish these two cases because if you remember in the Ninth Circuit case that did make it, uh, to the Supreme Court, school administrators were barred from telling parents if their student was requesting to use different pronouns or changing their gender identity at school, and the Supreme Court said, “No, um, that violates the parents’ rights.” So David, uh, this feels like the same law the opposite way, except we’re saying that law’s okay, but the Ni- California law wasn’t.
David French
Yeah. It’s, it’s interesting. Okay, let’s, let’s sit down and think it through. So in the California law, you had a concrete right, both in religious liberty and substantive due process of raising your child, that this law implicated in the sense that it denied parents information highly relevant to core constitutional protected activity.
David French
So let’s flip it, flip it around. Where are the concrete constitutional rights here? Does a child have a right to receive treatments and accommodations without the parents knowing? Let’s put it like this. Does your child have a right to get an Advil or a Sudafed from a nurse without the parents knowing? Well, as a general matter, no. As a matter of fact, I get a phone call if, you know, one of my kids needed Advil or aspirin or whatever, I either filled out in advance a form granting discretion to the school nurse, nurse, or I got a call from the school nurse saying, “Your child is asking for this medication. Is it okay to give it?” And because the, again, the concrete right here is the parent’s right to direct the care and upbringing of their child, the k- the parent’s religious liberty right. Does a child… Now, if there is evidence of abuse, yeah, okay. If a child says, “I am being hit by my parents,”
David French
a law that said, “Well, then you have to immediately go call the parents and tell them that there’s been an abuse report made to…” No, that would not fly. That would not fly. But if it is a request for accommodations related to gender dysphoria, it f- seems to me that that would fall under the rubric of, like, having to call a parent over an aspirin or a Sudafed or any kind of treatment or accommodation, say, related to a disability. But the interesting thing about the case, Sarah, was it was really s- at least this, in this preliminary stage, it was, it was decided on void for vagueness grounds. And one of the interesting reasons for that is because this is the overhang of Garcetti,
David French
because if you are an educator operating within your job function, remember Garcetti says that you don’t have free speech rights. And so this is again a very different legal environment that the t- the school counselors or teachers or et cetera, when they’re operating on the clock on the job, they don’t have free speech rights in their job-related speech. And so you have to attack it in a different way that is much more difficult to attack, namely vagueness, for example, or overbreadth. These are really hard, hard cases to win. And similarly, on the, on the part of the, the statute involving the curriculum, the state narrowed the construction of that statute, which was something that I think saved it. They basically said, “We’re, we’re confining its application to core curriculum.” A lot of people who’ve read these laws say, “Well, what if you have a teacher who’s in fifth– a fifth grade teacher, and he’s married to a man? Can he not have a picture of his family up, et cetera, like other teachers?” And they’re n- they were saying that’s not what’s at issue here. What’s at issue here is core curriculum, and again, once you get to core curriculum, no free speech rights because of Garcetti. So you have to deal with it on, like, vagueness and overbreadth. And so on the one hand, it absolutely looks like the reverse case comes out differently because reasons. But when you look at it, the underl- who is asserting the right and what right do they have to assert is very different.
Sarah Isgur
So for instance, in that Ninth Circuit case, if the teachers had sued and said, “We have a First Amendment right to tell the parents if we want to. We have a First Amendment right to call a parent and tell them that their student is using different pronouns at schoolThat would have run into the same problems. You don’t have a First Amendment right as a teacher to any specific speech. It was the parents.
David French
Related to your job, yeah.
Sarah Isgur
It was the parents suing, and it wasn’t a First Amendment case, and so basically the, all the teachers lose no matter what. [laughs]
David French
And, and to be clear, I hate it. I do not like Garcetti at all. But anyway, th-that’s, it is what it is right now.
Sarah Isgur
And the parent thing only cuts one way. Refusing to give information to parents is going to violate their rights, but insisting on giving information to parents, there’s no potential constitutional violation if parents learn information about their children they don’t care about or are great with, uh, or even if they don’t wanna know it. Like, we didn’t violate your rights by telling you
Sarah Isgur
information about your child.
David French
And the child’s rights are violated, in my view, only when there is a, the compelled disclosure is, say, to an abusive parent, et cetera. But the child does not have a right of privacy in their accommodations and treatments, et cetera, at school. That is, they don’t have a right of pres- privacy vis-a-vis their own parents, let me put it that way. They may have privacy rights and do have privacy rights regarding vis-a-vis the general public. Absent compelling contrary reasons such as abuse, they don’t have privacy rights as minor children vis-a-vis their parents.
Sarah Isgur
All right, David, next Eighth Circuit case is actually just the, you know, next part of this same bill, but now we’re in the school library. Iowa law, Senate File 496, requires the removal of books containing, quote, “Descriptions or visual depictions of a sex act from Iowa public school libraries, and imposes penalties on educators who do not comply with the law.” Here we’ve, I mean, we’ve had this case six ways to Sunday, right, David? Because plaintiffs are unable to show likelihood of success on the merits, no preliminary injunction, the law, both parts of this law, but now we’re on the library part of the law, goes into effect. Anything surprise you in this, David? I mean, we’re basically seeing pretty consistently at this point that states can control what’s in these school libraries. I am sad to say that in order to fully read and understand this case, at one point they reference the fact that the depiction of sex acts is defined in Iowa state law in a different state law, and you can go read it here, and I was like, “Okay, I’ll go read it.” That was a mistake. Did not enjoy that. [laughs]
David French
Oh, man. Oh, man.
Sarah Isgur
Uh, but I agree that it is very specifically [laughs] defined in great anatomical detail. But, you know, David, first of all,
Sarah Isgur
uh, they say some interesting stuff about how Pico doesn’t exist anymore, so I know that you have Pico thoughts, and the question keeps remaining, keeps coming back up, like, did they just ban Shakespeare? Did they ban, like all sorts of, you know, Greek literature?
Sarah Isgur
Are they being prudes, basically?
David French
Yeah. So Pico is interesting because Pico, for those who don’t remember, this is a case, uh, from arising out of 1970s culture wars, just to prove to you that there is nothing new under the sun. Some parents go to a conservative conference, they learn about what they’re, what they believe to be anti-American books. They come back, they find these, quote, “anti-American books” in the library. They try to get them removed. There’s a lawsuit. There isn’t a clear majority opinion. There’s a plurality opinion that contains a Justice Brennan quote that I really love that basically says that one of the purposes of public education is to prepare students for participation in a, in our pluralistic, often contentious society, which I think is absolutely true. If education isn’t preparing you for pluralism, it’s a bad education. But when you actually read the plurality, it’s very frustrating because it essentially tells you, well, if you did something like ban all books by Republicans or ban all books by Black authors or ban all books by Democrats or white authors, so if you have a, just a categorical ban based on viewpoint, that’s not gonna fly. But at the same time,
David French
you know, look, every book, every library can’t contain every book. Every library cannot be the Library of Congress, so there’s gonna be decisions made, and we’re generally gonna leave that up to school boards. So in my view, what Pico really stood for was don’t do blatantly obvious, sweeping, large-scale viewpoint discrimination, and short of that,
David French
there, it’s hard to find any judicial standards. And so it, it seems to me that this decision, far from actually contradicting Pico, is actually kinda consistent with it, ’cause Pico really was only clear in the plurality to the extent the plurality was clear about, like, big, large-scale sweeping bans based on viewpoint.
Sarah Isgur
All right, David, when we get back, we move to the Fourth Circuit religious exemption for vaccines. Is that constitutionally required under the First Amendment? And I don’t know, I kinda got into this contracts case. I wanna see if you cared about it. We’ll be right back. So David, we’ve talked about the Fourth Circuit being the new Ninth Circuit, meaning it’s where sort of the cutting edge liberal circuit opinions are coming out of, in large part thanks to Judge Toby Heytens, who is, uh, brilliantly smart and very left. I mean, he’s gotta be on everyone’s shortlist at this point. Uh, but this ain’t that case exactly. We’ve got three Republican-appointed judges, and not just that, like some of the most sort of well-known conservative judges in the country. Wilkinson and Niemeyer are both Reagan appointees, and AG is a George W. Bush appointee, and this is going to divide them. We’re gonna have a two to one decision with Wilkinson and AG versus Niemeyer. So let me tell you about this caseUh, Anthony and Crystal Perry brought this suit on behalf of their daughter to obtain a religious exemption from West Virginia’s compulsory vaccination law. Religious exemptions are not available under state law, but the Perrys claim they are required by the First Amendment. Now, interestingly, David, and I found this to be quite the twist, their daughter
Sarah Isgur
attends an online school. She does not go into a classroom. It’s not homeschooling, because that is an exemption from the vaccine requirement if you are teaching your own child. You know, you have to check all these boxes with the state, but nevertheless, you’re the teacher. They said they were not able to do that, these parents. Um, you know, he’s disabled. She works. Uh, they tried homeschooling, and it did not work for their child academically, um, so they have chosen an online public school instead, but they’re then required to vaccinate their daughter even though under both the homeschool scenario and the online public school scenario, she’s not around any other children, at least on a, like, compulsory basis. But West Virginia’s like, “Nope, we have an exception for homeschoolers,” but the state of West Virginia does not have a religious exemption at all. Two to one, David, uh, the judges said, “No problem. West Virginia does not have to have a religious exemption, and that doesn’t violate anything.” And if I can, uh, read you this one line, David, “Rights, as important as they are, do not swing free and clear of the larger social compact. We live in a society that accords its citizens enormous benefits. In return, states can, in a measured way, require certain exactions and accommodations to the broader social interest,” and then goes on to talk about the police power of the state. I don’t know. I was, I was struck by so much of this, David, including just this idea of, like,
Sarah Isgur
this is funny. I don’t know that we’d have this problem if we didn’t have incorporation, right? In theory, when we did all this stuff, the state police power was not limited by the First Amendment or any of the other amendments, for that matter. It’s a very modern conception that the police power of the state is not complete because of the idea after the 14th Amendment that now the states are bound by the Bill of Rights. I don’t know. Look, big picture, David, was this rightly or wrongly decided?
David French
I think it was rightly decided, and but I would have preferred a different formulation that would have said something like the, along the lines of, “My rights end where your rights begin, and I do not have a right to be Typhoid Mary,” and that that is… Now, I might have a different feeling if the vaccinations were relating to non-infectious diseases.
David French
If it’s a non-infectious disease, then I might have a different analysis. But for infectious diseases, the idea that I would have a right to avoid a vaccine that prevents the spread of some of the most dangerous infectiou- infectious diseases that exist on Earth, I’m not seeing that, Sarah. I’m not seeing that. And in fact, if you’re going to go to sort of the original public meaning of sort of our basic civil liberties, forever in our country, forever, we have been able to take some pretty significant measures to prevent the spread of infectious diseases. Um, and the opinion does a really good job of walking through that. And, you know, I just regret that a lot of the confusion and anger over COVID has, I think, clouded a lot of people’s minds about the sort of the underlying clarity regarding vaccination against infectious diseases and how that is about other people, not just yourself. And so, yeah, I- I… To, to me, this is a classic my rights end when your rights begin kind of case, and I wish it had been sort of framed along those lines. ‘Cause under original public meaning of sort of…
David French
So, you know, if you’re gonna go back and you’re gonna talk about sort of the l- the long-time understanding about American civil liberties in the face of pandemics and infectious diseases, you know, if you go back to the Jacobson case, smallpox vaccine, for example, I mean, Typhoid Mary’s bad enough, but, like, Smallpox Sam would be catastrophic. And, and so I do not believe that I possess a religious liberty right to carry an infectious disease.
Sarah Isgur
Okay, but isn’t it meaningful to you that, like, there’s no difference in risk between a homeschooled student and a public school student who’s exclusively taught online? I mean, it almost fails rational basis at that point because there’s no difference between those two classes of people.
David French
I think it’s a public policy. I think it’s a stupid distinction, uh, to exempt homeschooled kids because it’s not like they don’t come into contact with people. [chuckles] They’re… The, the… I think the thing that fails rational basis review would be the ex- the, the thing that’s irrational ex- the exclusion of homeschooled kids. [chuckles]
Sarah Isgur
But does that mean that the state can mandate every citizen in its borders get these vaccines? That’s, that’s what you’re saying, ’cause you’re just saying it shouldn’t make a distinction about schooling or whatever else, just every child before the age of five must be vaccinated in the state of West Virginia, and West Virginia could pass that law.
David French
Yeah. Now, in the law, they do have exceptions for when there’s medical, medical contraindications, but yeah, every person vaccinated against infectious diseases, yes.
Sarah Isgur
All right. Fair enough. Uh, one more Fourth Circuit case, and I just thought this was, like… It’s kind of a weird one, David. We don’t usually do contract, you know, disputes and that stuff, but this is Niemeyer in dissent again. [chuckles] Okay, I’ll read from the majority opinion. “Under North Carolina law, a contract may be set aside if it was obtained through undue influence.” So the question in this case will be, was this contractUh, you know, was Stephanie Walker, an elderly widow with limited income, uh, forced to sign this contract under influence, therefore voiding the contract? So her Charlotte home was flooded with raw sewage from a sewer system backup.
Sarah Isgur
They offered her $45,000 on the condition that she sign a release of any claim she might have against the city of Charlotte related to the incident.
Sarah Isgur
She protested, but she was gonna be homeless at that point. Her temporary housing had run out. She couldn’t move back into her home. So facing the possibility of being homeless, being an elderly widow, she actually thought, and it, for our purposes, not at all unreasonable, we’ll stipulate, she worried she would die if she did not take, you know, this contract being offered to her, that she could not live very long being homeless as an elderly widow in the city of Charlotte, so she signs the contract to pay for the emergency repairs so she can move back into her home.
Sarah Isgur
Is that undue influence, David?
David French
Oh, heck yes. [laughs]
Sarah Isgur
I disagree.
David French
You disagree? You’re with Niemeyer?
Sarah Isgur
I’m with Niemeyer. I mean, I tried to phrase it in the most sympathetic way to her, um, and the majority ’cause I’m fun like that, but, you know, that’s how contracts work, right? The two parties are not in the same position, and we can’t just void contracts because one party,
Sarah Isgur
you know, feels a lot of financial distress about the contract.
David French
I agree, but this is more than financial distress. This is physical danger. So that would be the distinction to me. But I, I feel bad ’cause I’ve disagreed with Niemeyer in two straight opinions, and I just wanna say shout out to you, Judge Niemeyer, because you were in the majority on one of my favorite cases of my whole career when you and the other two members of the panel held that Garcetti does not apply to college professors in the Fourth Circuit Court of Appeals, and I love you for that. I’ll give you grace for these two, you know, minor stumbles here.
Sarah Isgur
Okay, wait. I wanna read from his dissent. “One party’s personal financial condition is not sufficient to show that the other party in any way overbore the first party’s will. To the contrary, the evidence in this case is that Walker exercised her will with the advice of counsel and signed the settlement agreement because that was the best financial outcome for her at the time, even though it was a compromise of all that she had wished to obtain. This case presents a routine negotiation for a settlement in which the parties signing were represented by counsel. The fact that the city was able, because of its superior financial condition, to adhere to its final offer is not a ground to void the agreement that Walker voluntarily signed, albeit in protest, with the approval of her attorney. The fact remains that there was no conduct on the part of the city to overbear Walker’s will.” So David, two important facts there for me and why I’m Team Niemeyer. One, she was represented by counsel.
David French
That’s a very compelling fact.
Sarah Isgur
Two, conduct. I- I think for undue influence to hit, you have to have some baselines of what undue influence is, and I don’t think it can just be a difference in the negotiating positions of the two parties.
David French
By August, six months after the backup, Walker had grown desperate. She was losing her alternate housing and would need to sleep in her car. Her counsel informed Charlotte that Walker was in her late 70s and she won’t last long living in a car. Walker avers that she was in fear for her life, that she had nowhere else to go, and that she did not have the money to fix her home and hoped for covering her repair costs through a lawsuit. So-
Sarah Isgur
But then, like, elderly people can’t sign contracts. Like, what if you signed a mortgage for a house and it was, you know, a 7% interest rate, and you’re like, “Well, I was elderly, and otherwise I was gonna have to live in my car”?
David French
Charlotte poured raw sewage into her house.
Sarah Isgur
[laughs]
David French
This isn’t a mortgage.
Sarah Isgur
Look, this, this [laughs] this is the most sympathetic set of facts ever, and I’m mostly steel mailing… I’m not mo- I, I do agree with Niemeyer, but I’m not upset by the outcome of this case, if that’s, [laughs] you know? Like, good for you, Stephanie Walker. [laughs] Way to get more money from the city of Charlotte. [laughs]
David French
You’re not gonna do a 15-tweet tirade against this. This is-
Sarah Isgur
I am not, uh, nor do I think this has any particular effect on the law, um, because it can be basically confined to its facts. That being said, uh, I’m, I’m in dissent on this one.
David French
My rule is if you just dump a giant amount of raw sewage into an elderly person’s house, you c- you can’t then use their extreme personal crisis that you created to coerce a fi- a favorable financial settlement out of them.
Sarah Isgur
It, it’s like the, the libertarian in me hates the government in this case so much, but then the, like, freedom of contract in me wants… You know, it’s bad for society when we void contracts, basically, because it adds risk to signing any contract if you think there’s a chance they will, it will be voided later. It makes contracts more expensive and all this sorts of stuff. So, like, libertarian hate government, libertarian want freedom of contract, and the two come in violent, violent conflict here, and my freedom of contract and lowering contract friction is winning out, but it’s, it’s hard. It’s tough. I’m feeling torn.
David French
Let me put it this way. I’m very, I’m very comfortable that my rule, which is basically if you create a crisis equivalent to 10,000 people taking a dump on your floor, then [laughs] there is no slippery slope here. There is no slippery slope here. This is very unique to its facts.
Sarah Isgur
All right, David. The Supreme Court is set to release opinions on Friday. Obviously, we do not know what those are. You know, there’s, there’s a few of these cases outstanding at this point. The Calais, the Voting Rights out- Act is outstanding from October. It’s the only one left from October, but then again, I think that one’s both really hard, gonna have a lot of writing, and there’s a lot of reason to just go ahead and not release that. Like, you wanna wait as long as possible, get all these primaries out of the way, basically. Um-The Slaughter case is sort of the one that’s outstanding that I think we kind of agreed is, like, easy in some sense. You know, we sort of looked at that and said, like, “That’s gonna be six-three along ideological lines. The six all agree. The three all agree or disagree, as you wanna think about it.” So I don’t know, David, shot in the dark, or we’re gonna get some random boring ones. Hensley versus Fluor Corporation is there from November about whether Boyle should be extended to allow federal interests emanating from the Federal Torts Claims Act Combatant Activities Exemption, uh, blah, blah. I, I’m not even continuing the QP in that one. By the way, for those interested, we’re, we’re, we’re not quite to Supreme Court bingo yet, but we’re getting close, and let me explain how to play Supreme Court bingo. You go to SCOTUSblog, you go to the Cases pull-down menu, and then you go to Statistics. And here’s what you’re looking for. When we get down to just a few opinions for a certain month of a sitting, it is generally the practice of the Court to assign every justice an opinion. And so if you see one missing, like for instance, in October, remember I said the only case that has yet to be decided is Calais, the Voting Rights Act case? And then you go to Majority Opinions Authored by Sitting and look at October, there’s only one justice that has not written an opinion for October. Guess who it is? Justice Alito. So we have a very good reason to believe that Justice Alito is writing the Calais Voting Rights Act case. Now, when we look at December for the Slaughter case, yep, there’s still way too many cases outstanding. No real ability to tell who might write the Slaughter case. But David, Friday, opinion day, if it’s a big one, like a surprise big one, if birthright citizenship comes out on Friday, we will do an emergency pod. Um, short of that, though, we’ll talk to you on Tuesday. [chuckles]
David French
And reminder for those who are curious about the Slaughter case, this is the can you fire the head of an independent commission? And this is one of those areas where I’ve, I’ve said MAGA,
David French
the, the Trump, the, the, the Supreme Court conservatives are pre-Trump classical liberals, almost to a person. And so therefore, you’re gonna see some philosophical differences between MAGA jurisprudence and sort of classical liberal originalism. However, there’s a vi- there is a Venn diagram, and one of those overlaps is, at least to some degree, in the executive, unitary executive theory. And so when the issue is does Trump have control over the executive branch of government, he’s going to tend to win those cases. And so that’s why I fully expect Slaughter to be six-three with the six conservatives, unless we’re at a point where, like, Roberts is done. [laughs] He’s just, he’s just over it. And then it might be five-four or whatever. But, um, yeah, we- we’ll see, but I, I’m expecting the Trump administration to win that case.
Sarah Isgur
You know, David, the case that I really want on Friday, if we’re just doing, like, you know, if wishes could be puppies, I want that Landor case. This is the one where the guy, uh, has grown out his hair because of his religion. He only has a few months left of his sentence when they transfer him to a different prison. And when he arrives there, they say they’re gonna shave his head, and he’s like, “That violates my religious rights.” And they’re like, “We’re gonna do it anyway.” And he hands them, he physically hands them the Fifth Circuit’s case saying that that would violate his rights, and they throw it in the trash, and they do it anyway. And the question is, can he sue about that? I’m just, I, for– I’m dying for that one.
David French
Oh, me too. Bring it on. Bring it on. We’re ready.
Sarah Isgur
All right, David. Again, short of an emergency, see you Tuesday. [upbeat music]
