Transcript of OA342: Why the Supreme Court Should Scare You Even More Than It Already Does

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Topics of Discussion:

[Show Intro]

Thomas:         Hello and welcome to Opening Arguments, this is episode 342.  I’m Thomas Smith, that over there is Andrew Torrez, how’re ya doing sir?

Andrew:         I am fantastic.  I am on pins and needles for the drastic, dramatic OA fantasy football semi-finals tomorrow, I’ll be rooting for Blank Boxman since my team just narrowly missed making the playoffs.

Thomas:         Yeah.  Wait, this happens on Tuesday, so semi-finals already happened.

Andrew:         Oh yeah.  Well then there you go.

Thomas:         Time machine malfunction, everybody!  Andrew-

Andrew:         I’m basking in the glory of your upset victory.

Thomas:         Yeah, definitely going onto the championship, I’m sure that’s happening.

Andrew:         [Laughs]  Something like that.

Thomas:         Get your time machine working, Andrew!  Jeez!

Andrew:         I’m sorry!

Thomas:         [Laughs]  

Andrew:         Look, it’s been a long … life.  [Laughs]  

Thomas:         [Laughs]  

Andrew:         But particularly today.

Thomas:         It’s been a long, like, three years especially.

Andrew:         [Sighs]

Thomas:         Rough three years.  Alright, we’ve got some fun stuff today.  I think someone managed to make a copyright law question but with a Christmas theme, is that what happened?

Andrew:         Yeah.  We can be bribed, we can also be induced into answering questions by means of clever set ups.

Thomas:         I like it!  So we got that, we’ve also got the bad news that you promised last week where we get to see how much more we’re screwed because of the Supreme Court being ruined because we failed in 2014 and ’16, so there’s that, and then we’ve got – we’re gonna go back to the Wild Card Segment format!  I’m hoping, I’m rooting we get to this one, but I still think we need to make Andrew do it.  No freebies, Andrew, you gotta earn this Wild Card if you get to it – but a listener question.

Andrew:         I will do my best! [Laughs]  

Thomas:         We’ll see if Andrew’s up to the task of getting through all the things he needs to say in a reasonable amount of time, which is very hard to do!  Definitely not taking away from how difficult that is.  Alright, so that’s our show, let’s get to our first segment!

Listener Question – Frozen and Copyright Law

[Segment Intro]

Thomas:         So this is a Frozen related question, and I’ll have you folks know that I had a house rule against showing Phoebe Frozen because, you know, I remember when every little girl had to scream at the top of their lungs “let it go let it go let it go” for over and over and over.

Andrew:         [Laughs]  

Thomas:         I thought, well let’s just avoid it!  If she doesn’t know, she already has plenty of movies she likes, we don’t need to – just pretend we missed that one, oh well.  What is she gonna wake up and realize, hey parents, I think you’re withholding a crucial Disney movie from me?  No.  But, uh… I was overruled.  I don’t know how, I’m launching an investigation, there’s gonna be articles of impeachment and so forth because somehow Frozen was introduced to my child and now it’s all she wants to watch. [Laughs]  

Andrew:         [Laughs]  

Thomas:         So I went from-

Andrew:         And is she singing “Let it Go?”

Thomas:         She is, so she’s still only two in a few months.  It’s so cute.  She’s just now being able to mainly sing – or kind of sing stuff, barely sing stuff rather, like she can’t process the words fast enough.  She’s very precocious but it’s still a struggle to get the words, so she’ll get there.  But maybe we can bypass that and skip straight to Frozen II!  Question for the audience, are the Frozen II songs less annoying than Frozen one?

Andrew:         [Laughs]  

Thomas:         But anyway, okay.  So all that is to say, the Frozen related question that has very high relevance to my household now, against my wishes.

Andrew:         [Laughs]  

Thomas:         Okay, say Josh Gad – and this is from listener Tim Perself, this excellent question, here we go.  Say Josh Gad, who voices the friendly snowman Olaf – which, by the way, one of Phoebe’s favorites, I love it, she goes “Snowman! Snowman! Olaf!” – decides to make a song railing against Justin Walker, Amy Coney Barrett and Brett Kavanaugh as right wing howler monkeys in his Olaf voice.  Could Disney sue him?  I can’t imagine that contracts for voice actors cover everything that they say with their own voice into perpetuity so where is the fine line drawn?  Can he speak freely on issues of the day or is his voice in indentured servitude to the Disney corporation?

Andrew:         [Laughs]  

Thomas:         That person jokes, by the way, but I’m not the biggest Disney historian but one thing I do know is Disney totally effed over the original actress who played Snow White.  Did you know this?

Andrew:         No I did not know that.

Thomas:         I think I’ve mentioned it before.  Yeah, it’s something I came across when I was Wikipedia-ing because – it’s weird, I’ve heard, I’ve always wondered that little voice in Wizard of Oz that sings while the Tin Man is singing sounded a lot like Snow White and I looked it up and it was Snow White and that’s the only other thing she was able to do because Disney, who is like an evil corporation even back then, was like “okay, you were the voice of Snow White, we want that to be you forever so we’re gonna blacklist you, you can’t do anything else.  Ever.”  Except she got to do that one little vocal part, but they successfully blacklisted her with every studio and she didn’t get to do anything.  It’s the worst.  So this is a very real question! [Laughs]  

Andrew:         [Laughs]  

Thomas:         I don’t think they can get away with that anymore, but-

Andrew:         They definitely can not do that.

Thomas:         Right, they did in the past though.

Andrew:         Boy, I know you didn’t say this to pat yourself on the back so I feel comfortable complimenting you.  The fact that you could recognize her voice in a bit part in a later production, I’m 100% serious about this, I continue to be in awe of your auditory skills.

Thomas:         Ooh, thank you!  ‘Preciate it!

Andrew:         That’s super impressive.  So let’s answer the question here.  I loved everything about this question, particularly the in depth Frozen setup which I knew would – you would appreciate because of Phoebe and our listeners, it’s holiday, it’s everything, it’s fantastic.  Okay, so this is a question of copyright and interestingly enough I think this is something where you can figure out the answer by just thinking about what it is that you own in copyright. 

Let’s start off with the basics.  You write the script for Frozen, you write the story – well in fact let’s work backwards.  First you write the script for Frozen.  That’s a thing you own.

Thomas:         Right.

Andrew:         The Disney corporation has to pay you money-

Thomas:         Well I’m a bazillionaire!  Good on me! [Laughs]  

Andrew:         Yeah, right.  Well who knows?  They could pay you just to script-write.

Thomas:         Oh, yeah.

Andrew:         Lots of people get this-

Thomas:         Minimum wage? [Laughs]  

Andrew:         You could be some poor Disney wage-slave and you’re cranking out scripts, you’ve written 38 in a caffeine-fueled haze in the basement of Sunnyvale California and all of a sudden your fevered brain cranks out Frozen.  You own that unless under the terms of your employment you are a script writer and everything you write is works made for hire at which point the Disney corporation, because they’re paying you $8 an hour, now owns the script for Frozen.

Thomas:         Yikes.

Andrew:         But in any event, somebody owns the copyright in the script for Frozen and if, say, Sony Pictures decided to come by and turn the script for Frozen into a movie it’s pretty obvious that would violate the copyright.  They would have to license that out.  If Disney’s like “yeah, we wrote this but we’re not super huge on making it into a move that’s gonna make $11 billion, maybe somebody else would like to do that,” you would have to purchase those rights.  So that’s how the copyright works with Frozen. 

But now let’s ask about what other rights – so it includes the word for word script of the thing that you’re doing, but one of the things we know, if you’ve ever turned on TV, is that you don’t get the copyright in the idea.

Thomas:         Right.

Andrew:         That’s why we can have eleven different shows that are like “who’s the best amateur singer in the world?”

Thomas:         Mm-hmm.

Andrew:         Come before a panel of judges and the winner will get a record contract.  Literally every network has three of those shows and it’s not like America’s Got Talent or the Voice or whatever owns the copyright in a show about finding the next singing star.  That seems like those are sort of opposite ends of a pole, but they really aren’t.  Really what you own when you own a copyright in something is you own, in addition to word-for-word that thing, you own the right to create derivative works from it.   Again, go back.  Disney owns Frozen, they own-

Thomas:         Olaf’s Great Adventure or whatever the short is.

Andrew:         That’s exactly right.  They own the hypothetical right way back then to produce Frozen II.  You couldn’t just say oh no, that’s right, you own word-for-word what Olaf says but I can make a delightful romp about an animated snowman named Olaf and hire Josh Gad to play him.  No.

Thomas:         That would be a funny world, though.  The minute a good movie comes out every other studio is like “let’s make the sequel right now!  First one to make the sequel wins!”

Andrew:         You know, if our sole libertarian listener would write in, because yeah, that seems to be consistent with the efficient market hypothesis.

Thomas:         Hmm.

Andrew:         You should not get derivative rights from your copyright, you should only get the initial rights and if somebody else wants to write a fanfic sequel so be it.  We do not live in a libertarian paradise, we live in a world with robust copyright law in which we would say hey, you know what?  We want to reward and encourage people to create enduring works of art, so we want to grant them derivative rights really for both a positive and a negative reason.  The negative reason is we don’t want – could you imagine a world in which you could legally produce and sell fanfic?  That’s essentially what we’re talking about.  Then instantly any good thing that was produced would be drummed out by the legions of crap using the same characters.  That’s kind of the negative reason.

The positive reason is we want to encourage, particularly in the creation of art which is often not lucrative in its first go-round, we want to encourage people to continue to produce that sort of stuff.  So you get the right to do derivative works.  What do derivative works mean?  Derivative works include writing Frozen II, it also includes Frozen on Ice, the Ice Capades version, live action for toddlers at your local civic center.  It also includes the – I guess there aren’t Saturday morning cartoons anymore, but the Saturday morning serialized cartoon on network TV, I think you said it’s called Olaf’s Big Adventure or something like that?

Thomas:         Yeah, something like that, I can’t remember.

Andrew:         Yeah.

Thomas:         It’s what we put on as a compromise because Phoebe wants Frozen, we’re like let’s watch this thing that’s not the whole movie but is also still the characters.  It’s good, I like it.

Andrew:         Yeah, having watched lots of cartoons but not lots of Frozen related spinoff cartoons, but yeah, put that under the category of you own – derivative rights include spinoffs.  But now think about Olaf dolls.

Thomas:         Mm-hmm.

Andrew:         Who should own the copyright in Olaf dolls?  Again, under copyright law, Disney should own the copyright in Olaf.

Thomas:         I mean, Disney owns everything.  I’m pretty sure Disney owns this show.

Andrew:         [Laughs]  Yeah, well that’s true.

Thomas:         So I don’t know if that’s just the law or just Disney is a monolith that controls everything.

Andrew:         Right.  But think about the opposite rule, which is we’re watching a movie and we’re like man, somebody should make a toy out of Olaf.

Thomas:         Yeah.

Andrew:         [Laughs]  Right?  Yeah, of course somebody should.

Thomas:         I can see, obviously that’s a little ridiculous, but I could see what if it was like oh, whoever came up with the concept art for that character?  I don’t know how this divides out.  When you make a movie, I guess because you’re saying anyone who’s working for a wage or something Disney still owns all of it, all of the property and everything despite the fact that there was some person in there that drew the character and came up with that.

Andrew:         In fact, what you have pointed out is a situation that obtains in California all the time which is if contracts are not super specific then yes, you might have overlapping copyright claims as to hey, I created X original character and Disney failed to compensate me for that, failed to require that I turn over my ownership rights in that character for that.  We do not remotely have time to get into the history of the Marvel cinematic universe and that would put you to sleep, but suffice it to say that the reason on the incorporation of Spiderman into the MCU has to do with how those various characters were owned by various corporate parents. 

So yes, that is a live question in the absence of clearly defined contractual regulations as to if you have created an original – in other words, let me say it in an affirmative way – it certainly is possible that I could write an original screenplay, let’s say, but steal one of the characters that’s in that screenplay.

Thomas:         Hmm.

Andrew:         So let’s say I come up with – we do this all the time when we’re just riffing in Law’d Awful Movies.

Thomas:         Yeah. [Laughs]  Yeah, how many crimes have we committed?  Are we…

Andrew:         [Laughs]  Well, we have committed zero crimes-

Thomas:         Okay, good.

Andrew:         -but if we tried to make that movie and monetize it, we would then potentially owe damages to the original characters.  Fortunately we haven’t done that.

Thomas:         We should though. 

Andrew:         [Laughs]  

Thomas:         But we’ll do it in a way that doesn’t mean we have to pay anybody else.

Andrew:         Yeah, that is the key goal.

Thomas:         Because you’re a lawyer and we better be able to figure that out.

Andrew:         I would hope that I could help us figure that out.

Thomas:         [Laughs]  

Andrew:         But right, think about that.  If you come up with a super clever – again, I don’t really know the full extent of the story here but my understanding is the 50 Shades of Grey novel started off as Twilight fanfiction.

Thomas:         [Laughs]  

Andrew:         If I’m getting this wrong, please do not send-

Thomas:         Yeah, I always hear that and I never do if people-

Andrew:         I am not doing an Andrew Was Wrong about this!  Yeah. [Laughs]  

Thomas:         I never know if that’s a joke or not, I’ve heard that same fact or whatever, the claim, a million times and I’m always like, are they being serious?  Or are they insulting?  I can’t actually tell.

Andrew:         I can’t either.

Thomas:         No idea! [Laughs]  

Andrew:         But assume for purposes of this segment that it is.

Thomas:         Okay.

Andrew:         Then you saw what happened, which is the original contribution was maintained, the characters names were changed and all the sparkly vampire stuff was stripped out, so that gets us back to our Josh Gad question.  It comes back, and I think I’ve talked about this in an online Q&A, but it has to do with the very early years of the David Letterman show which, as somebody who grew up watching television in the late 80s, I love – it was one of the first staying up late as a kid and watching Letterman and what was subversive back then and has been imitated for 30 years since. 

David Letterman used to have a guy come on his show.  The guy’s name was Calvert Forest.  He was just a guy.  He was not an actor, I don’t think, prior to David Letterman finding him, and he would come on and do these bits in which he was obviously shouting his lines reading from cue cards.

Thomas:         [Laughs]  

Andrew:         I think you would’ve appreciated it.

Thomas:         Yeah.

Andrew:         It was this kind of oddball humor that totally fit in with what 80s Andrew was doing.

Thomas:         I was hoping you were gonna talk about Super Dave, but yeah, along those lines.

Andrew:         [Laughs]  Yeah.  Good old Super Dave Osborne!  Yeah, we could do all sorts of memory laners.

Thomas:         [Sighs]

Andrew:         But anyway, so Calvert Forest’s character on the original Late Night with David Letterman which aired on NBC was called “Larry ‘Bud’ Melman” because the writers thought that was funny.  So he would come on and he’d be like “Hi, I’m Larry Bud Melman” and then would like shout his lines from the cue card.  I remember he did a recurring bit about Mr. Larry’s Toast on a Stick.  [Laughs]  

Thomas:         [Laughs]  Weird.

Andrew:         Which was like – it’s bread’s answer to the popsicle!  [Laughs]  It was just a popsicle stick stuffed into a piece of toast. 

Thomas:         [Chuckles]

Andrew:         [Laughing] But in any event, he had this kind of humor.  He would come on and do his bits.  Fast forward, early 90s, Johnny Carson retires, David Letterman does not get the job it goes to Jay Leno and David Letterman moves from NBC to CBS where his show becomes The Late Show-

Thomas:         Ooh.

Andrew:         -with David Letterman.  Think of all the copyright.

Thomas:         Yeah.

Andrew:         He does the exact same show on CBS because NBC does not own the idea of a guy interviewing people late at night.

Thomas:         [Laughs]  

Andrew:         It does not own the concept of David Letterman being goofy, it does not own – you know, any of that other stuff, but when he brought over Calvert Forest he brought him over as, and now we go to that guy!

Thomas:         Ah-ha-hah!

Andrew:         Because NBC asserted, and they didn’t wanna litigate for purposes of a bit, that they owned the character name “Larry ‘Bud’ Melman.”

Thomas:         Ah-hah! 

Andrew:         Because it was written for a sketch-

Thomas:         Yeah.

Andrew:         -and they would have also owned Toast on a Stick, which was not that funny by 1994.

Thomas:         [Laughs]  

Andrew:         But it was hilarious in 1983!  But you know, there’s a shelf life on toast-related humor. 

Thomas:         I think it could make a comeback, though.

Andrew:         That’s true, I agree.

Thomas:         More toast jokes everybody!

Andrew:         [Laughs]  So yeah, he could bring over Calvert Forest.  Calvert Forest could repeat his shtick of reading the cue cards obviously, but they couldn’t call him Larry Bud Melman, and that, I think, is the answer to, plus this sort of interesting follow-up question to what Josh Gad can do to speak out against Justin Walker, Amy Coney Barrett, Brett Kavanaugh.  He can’t do it as Olaf, he can’t do it in the Olaf voice without getting permission from the Disney corporation-

Thomas:         Oh okay, sorry, that’s the main thing I wanna know.  So it sounds to me like there could be a difference between characters where you’re just doing your voice, because honestly the Olaf voice is pretty much just Josh Gad, he’s not doing a different voice it’s just pretty much him, but if it’s something like Homer Simpson or one of these characters where they’re clearly putting on a voice and doing a different voice for the character would that be different?  Because anytime Josh Gad is talking he’s being Olaf.

Andrew:         It’s Olaf talking?  Yeah.

Thomas:         Yeah.

Andrew:         So what Josh Gad would have to do, the way in which you divide that line is you have to make it very clear-

Thomas:         Huh.

Andrew:         -that you’re not trying to have this come out of the mouth of Olaf as opposed to come out of the mouth of Josh Gad.  That’s how you parse what can often be a very, very narrow distinction between do you have to get Disney’s permission to use the Olaf character?  Yes you do, because – again, I am 100% clear that if Disney went into court and said we own derivative rights over the hypothetical future work Olaf Rates Federal Justices-

Thomas:         [Laughs]  

Andrew:         Never minding that that’s crazy!  Obviously Disney has no intention of putting out an Olaf-themed legal podcast.  But they could go into court with a straight face and go yeah, we’ve talked about having Olaf rate various Trump appointees, so we own that, and the court would 100% rule in Disney’s favor and not just because they’re Disney, they would rule in favor of Disney because that’s the law.  So if that were the case you’d have to make it very clear you’re speaking as Josh Gad and not as Olaf which is how they can own that first part but not, (quote) “voice actors cover everything that they say with their own voice into perpetuity.” (end of quote).  So that’s where the line is drawn.  Are you creating a derivative work that is owned by someone else or are you creating an original work of artistic expression?

Thomas:         Yeah, because I was thinking about the actor equivalent is just any actor anytime they’re talking, they’re talking like basically all the characters they’ve done in movies.

Andrew:         Yeah.

Thomas:         Unless it’s like some-

Andrew:         Unless it’s Hugh Laurie who’s amazing, yeah.

Thomas:         So that means the same thing would apply, though.  So when Will Ferrell goes on something, because I think he did a whole LA Kings broadcast as Ron Burgundy once so he had to have somebody’s permission to do that I assume.

Andrew:         Yeah, absolutely.

Thomas:         It might’ve been a case of someone being like, yeah, go ahead.

Andrew:         Let me point out, I don’t know how common this is in movie contracts, but I know of at least one example in a baseball contract so I get to do a little bit of Baseball Law.

Thomas:         Baseball Law!

Andrew:         You could – so suppose you’re a movie studio, and I don’t know who put out Anchorman, but you could negotiate in, particularly for like the Anchorman sequels, I think they’ve got three.

Thomas:         I think there’s just one sequel.

Andrew:         There’s just two?  I know there’s at least a second one?

Thomas:         Yeah, one sequel is what I said, so two.

Andrew:         Got it.  So suppose you’re like look, we’re doing the budgetary numbers, Anchorman 2 is clearly not gonna produce as much income as Anchorman 1, but we know from market research it’s gonna cover its budget so long as we don’t have to pay an unbelievable amount of money to Will Ferrell to come back, so you might negotiate with Will Ferrell and say hey, why don’t you take a lesser salary in exchange for some additional rights?  One of the things the studio could do is say yeah, we’ll give you the right to appear and create derivative works as Ron Burgundy.

Thomas:         Huh, yeah.

Andrew:         I think Will Ferrell is doing a Ron Burgundy podcast, too.

Thomas:         Oh, interesting. 

Andrew:         I don’t know that that’s in his contract, but I know that there’s nothing that would prevent them from putting that in his contract.

Thomas:         Makes sense.

Andrew:         An example of that was when the Orioles re-signed Cal Ripken-

Thomas:         He wanted to be Ron Burgundy!  He’s like, I get to dress as Ron Burgundy while I’m playing! [Laughs]  

Andrew:         They put a really interesting clause in his contract.  It’s one that I have not seen a team do since, and it is this:  Watch TV and when you see a sports star appear in another advertisement for something else they will also appear in like casual athletic wear, they will not appear in their team’s uniform because the team owns the name and likeness to the uniform.  So the Orioles granted Cal Ripken – I think it was a limited time, I think it’s since expired, but as part of the compensation to him for resigning they granted him the right to use the Orioles logo and colors in other commercials that he did without having to secure permission, which means pay-

Thomas:         Interesting.

Andrew:         -the team.  So in other words, all of your property rights – this is the grand takeaway from the segment – when you own property rights even intangible intellectual property rights in stuff, you own a giant bundle of rights and that bundle can be broken out into separate sticks and you can sell part of it but not all of it and it’s a fun well.

Thomas:         I have – that’s interesting, now I have a bunch of Baseball Law questions.  I have to ask this though because I think it’s interesting – now it wouldn’t apply so much in baseball, but it almost feels like this would be a clever salary cap workaround, so is there some rules around – hockey has a salary cap for example-

Andrew:         Baseball has a soft salary cap, they have a luxury tax so, yeah.

Thomas:         Okay, not important.

Andrew:         [Laughs]  It is to me, dammit!

Thomas:         Yeah, but for this question the point is let’s say you don’t have a lot of cap room, you’re trying to sign, we signed Erik Karlsson or something, Sharks have blown their cap room on that and one or two other people, so we try to sign someone and we’re like well, we don’t have cap room, but would you be able to grant some other benefit that would kinda sidestep the salary cap number?  I would assume there’s gotta be rules against this, I mean everything of value has to be somehow included in, but that makes me wonder.

Andrew:         So let me give you the answer that I believe applies to all sports but I’m only confident that it applies in baseball because I’ve actually litigated this.

Thomas:         Oooh!

Andrew:         I’ve advised clients who have appeared before Congress in connection with this.  So here’s the thing, Major League Baseball, and I believe all major sporting organizations, the individual members are represented by a union, the Major League Baseball Players Association, the NFL Players Union, so the system is governed by collective bargaining.  What that means is there is a collective bargaining agreement between the players unions and the representatives for the sport in each sport.  Those collective bargaining sessions will produce form contracts that then have some ability to modify some of the terms.

Thomas:         Hmm.

Andrew:         So for example, in baseball (and again I believe in every sport) there’s a minimum.  You can’t offer below X.

Thomas:         Right.

Andrew:         In baseball, for example – but you can offer more money which is unlike a lot of collective bargaining agreements, and in Major League Baseball you can offer incentives, but you can only offer very, very specific kind of incentives.

Thomas:         Right.  Yeah, that makes sense.

Andrew:         Yeah, yeah yeah.  So the answer to if there was an incredibly valuable form of secondary compensation that allowed you to skirt the salary cap, A, there’s some level of indirect compensation that is permitted, but B, if it was something that was clearly a major fraction of the value of the contract then that’s something that the teams would demand be taken off-

Thomas:         Yeah, and I’m sure this is the kind of thing that someone would try it, they’d make a rule about it and, you know-

Andrew:         Yeah, and then no more dogs playing basketball.

Thomas:         Yeah.  [Laughs]  

Andrew:         So the answer is usually it is easier in CBAs to define what you can do as opposed to define what you can’t do, so I suspect that the way in which those agreements are now formed in every sport are pretty narrowly tailored to say, yeah, a team can also offer this in these kinds of circumstances.  Then it would be a simple question of are media rights in or out?  I don’t know the answer to the current status of whether they’re in or out, but that’s how that would play in professional sports.

Thomas:         Well Andrew, the Wild Card Segment looking a little iffy right now.

Andrew:         Yeah, Wild Card Segment is looking iffy, that’s true.

Thomas:         We’ve got some bookies out there, no I’ll give you good odds!  We’re going to get to our main segment, finally, but first a word from a sponser here.

[Commercial –]

Main Segment – Supreme Court Denies Certiorari in Kentucky’s Restrictive Abortion Law

Thomas:         Okay Andrew, this segment is How Depressed Should We Be?  Yaaay…

Andrew:         Super depressed and more depressed than that.

Thomas:         Okay, cool.  Done. 

Andrew:         Yup, done.

Thomas:         How is the Supreme Court effing us this time?

Andrew:         Really, really badly.  So lots of folks have written in about the Supreme Court allowing a Kentucky law requiring mandatory medically unnecessary ultrasounds and required disclosure to stand.  That’s true and we’re gonna break down just how bad this decision is, but it’s worse than you think because of the dynamics of what happened here.  It’s why I wanna frontload this, because this is the opinion part and then we’ll get to the undeniable facts of the situation. 

So, my opinion:  This law is blatantly unconstitutional, it is a no-brainer that it is unconstitutional and it is a 2-1 activist decision by the 6th Circuit upholding its constitutionality which puts, unfortunately, those of us who are on the side of reproductive health, those of us who are on the liberal side on any of these legal issues, in a double-bind before this Supreme Court, which is as follows:  There are four liberal justices on the Supreme Court.  They could have granted cert in this case because to grant a writ of certiorari, as OA listeners know, requires only 4 votes, so we can get these cases before the Supreme Court. 

If you’re looking at it going, so I don’t understand, if the law is super bad (which it is and definitely unconstitutional) and the 6th Circuit was definitely wrong (which it was), why wouldn’t the court grant cert and reverse?  The answer is because the howler monkey contingent on the Supreme Court does not care what the law is and this is 100% clear to me that Ruth Bader Ginsburg or whomever, Elena Kagan, went to John Roberts and said hey, if we grant cert in this case how likely are you to side with the right wing?  And Roberts said-

Thomas:         Very likely!

Andrew:         Super-duper – have you ever read any of my opinions?

Thomas:         [Laughs]  

Andrew:         You didn’t even have to on abortion.

Thomas:         Do you know who I am?

Andrew:         You don’t really have to, yeah, you know who I am.  I wanna play this out and emphasize the political and pragmatic implications before we delve into just how bad this case is.  Here’s the double-bind.  The way in which the Supreme Court’s liberal wing went was to say alright then we’re not gonna touch this case.

Thomas:         Hmm.

Andrew:         And we’re not gonna touch this case because we’re terrified that if we do this Supreme Court will use it as a vehicle to overturn Roe v. Wade.  But the problem in just saying – you might sit back and go okay – if you’re a law student and you’re gaming it out, well okay, then checkmate.  They don’t take up these cases and we won’t overturn Roe v. Wade

The reason that it’s a double-bind is because that means the 6th Circuit opinion stands.

Thomas:         Yeah.

Andrew:         This law goes into effect and thousands of immediate patients are effected in Kentucky and potentially millions of women and those who may become pregnant will be effected in the States that are governed by the 6th Circuit.  Not to mention the gateway in dozens of other conservative States that are gonna pass identical laws even though this law is blatantly unconstitutional. 

We have not talked about this before.  We’ve talked about the dynamic of the Supreme Court being 5-4 with John Roberts occasionally having a tiny particle of shame.  That’s true, that has a tremendous deterrent effect on any political issue where the facts are really, really bad but you don’t think, however bad the facts are, however bad the underlying law is, you don’t think you’re gonna be able to push John Roberts.  So, in other words, for us to have a positive outcome at the Supreme Court in the next … forever unless there’s a structural change, is going to require, not only the momentously terrible decision below, but a decision so bad it doesn’t trigger John Roberts’ innate very conservative political ideology.

We don’t emphasize this enough, and I don’t want us to fall into the trap that a bunch of mainstream media sources are falling into of saying just because John Roberts has limits does not mean he is not a doctrinaire hardcore conservative on social issues.  Those social issues very plainly include religious issues, including abortion.  I want you to understand how bad it is that this was a really good illustration of the chilling effect of – the Court’s left wing is terrified to take up a case that they know, that 95% of legal scholars would say yeah this case is a slam dunk the other way, because it’s not in our Court.  That’s the America we live in, that’s the crisis we face in the next Presidential administration.

So now that I’ve thoroughly depressed you, let me back that up with evidence and talk about this law and talk about just how bad it is.  So this is Ky. Rev. Stat. § 311.727 which follows in the post Planned Parenthood v. Casey format of, Casey said that if you are pregnant you have the right to an abortion so long as the State does not place (quote) “an undue burden on that right.”  What pro-lifers have been doing is trying to burden as much as possible the exercise of that right without – go as far up to the line as they can without a court calling that burden (quote) “undue.”

Here is what the statute requires, it says – again, I’m reading the gendered language from the statute, so trying to avoid that in this discussion here but the law is written the way the law is written, so:

“Prior to a woman giving informed consent to having any part of an abortion performed,” put a pin in that, “the physician who is to perform the abortion or qualified technician to whom the responsibility has been delegated by the physician shall:

(a) Perform an obstetric ultrasound on the pregnant woman;

(b) Provide a simultaneous explanation of what the ultrasound is depicting, which shall include the presence and location of the unborn child within the uterus” again, this is a real law passed in Kentucky.  Unborn child is not a legal term and should not be present in a statute, but whatever, “and the number of unborn children depicted and also, if the ultrasound image indicates that fetal demise has occurred, inform the woman of that fact;

(c) Display the ultrasound images so that the pregnant woman may view the images;

(d) Ascultate” that means listen with a stethoscope-

Thomas:         Huh.

Andrew:         -and make audible, “the fetal heartbeat of the unborn child so that the pregnant woman may hear the heartbeat if the heartbeat is audible.

(e) Provide a medical description of the ultrasound images, which shall include the dimensions of the embryo or fetus and the presence of external members and internal organs, if present and viewable; and

(f) Retain in the woman’s medical record a signed certification” [Laughs]  a signed certification! “from the pregnant woman that she has been presented with the information required to be provided … and has viewed the ultrasound images, listened to the heartbeat if the heartbeat is audible, or declined to do so. The signed certification shall be on a form prescribed by the cabinet,” that is by law. 

So this is somebody working at Planned Parenthood, somebody who believes sincerely in the right to choose, working with a patient who has requested an abortion, is now compelled by law to do these six things, to perform an obstetric, that is an invasive ultrasound; to narrate all of these details about the fetus in a form prescribed by law, that is they have to follow a particular form.  They must display and make audible the ultrasound and the images to their patient and then engage in this medical description. 

Listen to all of this.  I want to read the way in which this was described in the cert petition, and here I wanna give a trigger warning up front.  I don’t think this is graphic and violent, but I’m gonna talk about the way in which this was characterized before the court, so if you are squeamish about describing the procedures related to an invasive obstetric ultrasound you might wanna skip ahead about a minute. 

– Trigger Warning Start –

Andrew:         This is how this law works in practice – again, this is from the cert petition, the petitioners are medical health organizations.  “Petitioners perform an ultrasound on all patients before providing abortion care consistent with established medical practice, offer every patient the option of seeing the ultrasound image and discussing it with her provider.”  Unstated, many patients do not wish to view the ultrasound.  They have made a medical decision and you’re trying to talk them out of it by saying “oh look at how much it looks like a little baby.” 

Going back to the cert petition:  “The Act challenged here transforms this standard medical practice into a pure speech mandate: under the Act, the physician must display and provide a graphic description of the ultrasound image … The physician must convey these specific words, images and sounds to the patient even if they does not want to see or hear them and even if they tries to physically resist them.

As a result of this law, while the patient is half-naked on the exam table with their feet in stirrups, usually with an ultrasound probe inside their vagina, the physician has to keep talking to them, showing them images and describing those images, even as they try to close their eyes and cover their ears to avoid the speech. The Commonwealth characterizes this as part of ‘informed consent,’ but it is not.

The most obvious tell is that under the Act, the patient has provided ‘informed consent’ even when they have not seen or heard the images or description, so long as the physician has read the mandatory script. A law that requires a physician to keep speaking even though her words do not inform anyone of anything is not an informed consent provision. And indeed, the Act is flatly inconsistent with the tradition of informed consent, which precludes doctors forcing information on patients in this manner, and requires doctors to respect, not run roughshod over, their patients’ autonomous choices.”

– End of Trigger Warning –

That’s the law that was just upheld in the 6th Circuit and over which the Supreme Court declined to grant certiorari even though it is flatly unconstitutional.  How am I so confident that it is flatly unconstitutional in an age in which who knows what constitutes an undue burden? 

Because this case has already been litigated.  Five years ago wen to the 4th Circuit in a case called Stuart v. Camnitz.  These cases are being characterized as free speech cases, compelled speech cases, and not abortion cases.  Not because this is not about unduly burdening abortion, it is 100%, if you read media outlets that say this is a free speech case not an abortion case, they are wrong.  That’s a surface level analysis that doesn’t apply here.  But as a matter of legal tactic, because determining what constitutes and undue burden is a foundation that has been consistently eroded for the past 25 years in our courts, instead these cases have gone with the much stronger footing of hey, the government can’t intervene in a medical procedure and tell the doctor that they have to say stuff that is unrelated to that medical procedure.

In particular, this is the binding precedent, here’s the law.  Under the 1st Amendment if you have a regulation that forces a physician to say something, that’s subject to heightened scrutiny unless you’re forcing them to say something that is part of the practice of medicine.  In other words, you can require that doctors convey truthful, non-ideological, nonpartisan information as part of regulating the practice of medicine, that’s not compelled speech, that doesn’t get heightened scrutiny.

The key term is what constitutes the practice of medicine?  “A regulation that affects physicians speech” – and I’m reading here from the dissent in the 6th Circuit, “receives deferential review only when that speech is auxiliary to a medical practice …In other words,” as the dissent says, “when the state regulates the content of physician speech in a manner that is inconsistent with the practice of medicine, we must apply heightened scrutiny, full stop.”  I would add that the viewpoint discrimination, which also invokes heightened scrutiny clearly applies. 

This is a political issue that the State is weighing in on one side, and they are requiring abortion providers to read a pro-life script.  That is super-duper obvious that that violates – not only does that overly burden a patient’s right to undergo an abortion, but it very clearly violates the 1st Amendment.  It is the government preferring one kind of speech, that is anti-abortion, unborn child, listen to its little baby heartbeat, over another kind of speech and the 1st Amendment says you can’t do that.  The 6th Circuit says you can and the Supreme Court has now let that stand.

Thomas:         [Sighs] I dunno.  I was already pretty depressed from the beginning, so where do I go from here?

Andrew:         Uh…

Thomas:         I’m even more mad.

Andrew:         Yeah, look, you should be even more mad, because this is – again, the only solution in cases like this is grassroots activism, is ensuring that legislators are held accountable.  This is Kentucky, Matt Bevin was just voted out in Kentucky.  I get he was voted out for a whole bunch of complex reasons, but this was one of his signature accomplishments and when the Supreme Court denied cert he was out there tweeting about how wonderful this was, so it sucks.  We should not be in a position that we have to take out, in terms of grassroots activism, protecting a person’s right to choose.  That’s where we are.

Thomas:         I guess – so we talked about in the past how it was likely that we were never gonna get a case striking down Roe because it’s just not worth it for conservatives to do that, it’s way more sinister for them to just effectively get rid of Roe while always saying well it still applies but we’re carving it back and carving it back to the point where it becomes meaningless.  So tactically that was what we always said was probably going to happen because it’s the most competent evil thing and when it comes to certain people, certain evil people are incompetent but unfortunately people like Bill Barr and conservatives on the Supreme Court are actually pretty competent in their evil-doing so that was gonna happen.

I didn’t consider this, though, which was it sounds like an even more annoying way to get this horrible anti-women’s-rights stuff to be in effect is to just – I guess it would depend on the Circuit that you’re in, but when there’s a Circuit Court that is conservative they can just do a bad ruling that essentially ignores the rights that women should have and then the Supreme Court doesn’t even have to validate it, it just has to not grant cert because we’re in some hostage situation where we’re afraid – the liberals are afraid if they grant cert than Roe will be undone so the conservatives can just be like, alright, we won’t grant cert and the conservative Circuit Court just gets to effectively control everything and rule however they want and the law stands.

Andrew:         Yeah.  That’s exactly right, and your analogy of hostage situation is, I think, a better one than my lack of analogy to start this segment.  That’s exactly what it is, the howler monkey contingent, knowing that John Roberts will vote with them nine times out of ten on classic right wing political issues, is holding that hostage in terms of encouraging the court’s liberal wing to pass over blatant errors of law that have a real meaningful deleterious effect on the real lives of real people. 

I do not blame the health organizations for seeking cert in this case.  Their job is to their clients and their patients and they are trying to do everything they can, even if it is a losing effort to overturn terrible law.  Their job is to represent the interests of their patients.  You can see the members of –  I mean there’s no other way to explain this other than the left wing on the Supreme Court getting together and saying, gosh, we’ve gotta find our own holding actions here.

Fundamentally – and again, Uncle Clarence has long since turned out this episode because this has been a pretty solidly pure left wing propaganda episode, but if you tuned back in-

Thomas:         Yeah, but maybe they wanna do a victory lap, maybe they enjoy-

Andrew:         Yeah, maybe they’re hate-listening.

Thomas:         -listening to the fact that, yeah, women’s rights have been taken away.

Andrew:         If you’re hate listening or you’re doing your victory lap I’ll just say it to you like this:  The fact that this Supreme Court is engaging in that kind of calculus should dismay and upset you.  That’s 100%, you’re an Originalist?  100% what the Founding Fathers did not want to have happen was for the Supreme Court to break up into factions and for the Justices on both sides to be calculating “how do we minimize the damage that this activist contingent wants to do by taking cases and overturning precedent,” and that’s where we are. 

Thomas:         [Sighs] What is the best thing that we can do?  Is it just a question of in these States trying to get this legislation to either not happen or be overturned?  Is that all we can do?  That’s not a lot to go on for some of these deep red States where chances are slim.  Is there anything else?

Andrew:         The other pattern is the Kansas Supreme Court decision that we talked about from last year, which is bringing challenges to State laws in State court alleging that they violate provisions of the State-

Thomas:         So is that not what happened here, though?

Andrew:         So this was – [Laughs]  So great question.  This case was initially filed in federal court.  Look, there are a lot of reasons to want to do that from a strategic perspective that we can’t go through all in this segment.  I don’t fault the lawyers for bringing this case in federal court, but I will say, State court, when you’re in these very, very conservative Circuits – you may also have – again, I don’t know what the Kentucky State Supreme Court is like, I don’t know what the Kentucky Appellate Courts are like, I can probably guess.  We can talk to some of our friends out there, we can talk to Shelly Henry from the HA.  So you have to make a calculated decision about where you wanna file the lawsuit.

But I will point out that we won unexpected victories in places like Kansas, so I think it’s fair to say it this way.  Up until 5 years ago if you were a civil rights litigator challenging legislation you brought those challenges in federal court.  I would say now – just as a matter of course because the habits of courts, because of the relative compositions of the respective bench, for a lot of different reasons.  What I would say is – I’m not in your field, I’m not trying to usurp the judgment of experts – but I would put on, in the toolbox, reconsider maybe is a State Court suit maybe the best vehicle for resolving this decision?

There’s another vehicle, if you’re already in federal court one of the things you can do – I’ll try not to do too long in this sidebar, but you know, I do want something other than just “it’s bad it’s bad it’s bad it’s bad,” so I love you asking the question.  If you’re stuck in a terrible Circuit, one of the things that we’ve talked about is you can get into federal court on the basis of diversity jurisdiction and also on the basis of pendant jurisdiction.  That means sometimes federal courts are adjudicating questions of State statutory law or State constitutional law.  There’s nothing wrong with that, the law says that we presume that federal courts are good at that, and federal judges, with the exception of the recent spate of Trump appointees, are supposed to be supremely qualified and smart and capable of applying State law. 

But there is a vehicle in every State that says you can file a certified question to the State Supreme Court.  The reason you file a certified question is when a federal court, when the litigants in federal court say you know what, this isn’t super clear in our law.  It would be a matter of first impression.  Rather than have a federal court assuming what Kansas or Kentucky law is, why don’t we just ask the Kentucky Supreme Court instead?  Why don’t we say to them, be totally straightforward and be like, look, there’s some law that says this, there’s some law that says not X, answer it for us. 

This is one of the exceptions to “the law does not render adjudicatory opinions,” this is an exception and it is a specific exception that allows courts to render an advisory opinion that says, “okay, in the opinion of this Court the answer to the question you have certified to us is X.” 

So I would say that that’s another tool that I would add to the toolbox.  You realize you’re about to get homered in the 6th Circuit and you have a discrete issue of Kentucky constitutional law, petition the Court to certify the question to the Kentucky Supreme Court.  Again, these may be low probability outcomes, but they are – there’s something you can do.  So I throw that out there as well.

Thomas:         Alright, well thanks for that advice.  I mean, you blew it.  There’s no time for the Wild Card Segment, but that’s okay, that’s fine.  That’s fine, it was worthwhile, it’s an evergreen question we’ll push to the next Wild Card because we’ve got still more to do, which is mainly that we need to thank our top patrons!  Our hall of famers, our all-time greats on Top Patron Tuesday from  Again, a Law’d Awful Movies, Christmas theme, coming at you very soon in fact may already be up by the time you’re hearing this but if not very close to that.  So here we go, let’s thank our top patrons!

[Patron Shout Outs]

Thomas:         Alright, thanks so much, folks!  Now it is time to find out the answer to last week’s bar exam question.  Here we go!  T3BE, can I get back on that saddle?

Andrew:         Yeah!

T3BE – Answer

[Segment Intro]

Andrew:         Okay, so this was a homeowner who concealed water damage in the roof, walked her perspective buyer through the house and didn’t say anything but then without discovering the water damage or the leaking roof and without consulting a lawyer the buyer immediately agreed in writing to buy the home for $200,000, but in between signing the contract and closing – which by the way, sidebar, you’d asked the question about closing when you were answering the question.

Thomas:         Uh-huh.

Andrew:         It’s just this, the law recognizes that there are some contracts that you want to sign and have become binding at one point in time but you don’t have all the information until a different point in time, so you will have – again, usually this is in the sale of real estate but it can also be in the transfer of a business for example.  So you’ll say hey, we agree in principle to X and then we’re gonna close on Y and closing literally, again from the real estate, meant you get out, you turn over the key, everything is all completely done but it’s not a situation where the parties are up in the air in between having agreed to the contract and taking possession of the property or the business.  Makes sense?

Thomas:         I still … no, sorry.

Andrew:         Well here’s the thing-

Thomas:         What is in effect at the closing date that’s not in effect when you sign the – or .. you know?

Andrew:         Well because there may be things that you have to discover.  So again, a house is a perfect example.  You may say, hey, we’re gonna buy this house for $200,000 subject to it passing inspection.

Thomas:         Uh-huh.

Andrew:         You sign the contract, then you don’t know if it passes inspection, your rights are indeterminate in that intermediary period and then at closing you’re like, oh look, you passed inspection therefore contract is valid we go forward.  The idea is in a contract you’ve heard me talk about the traditional elements of contract are offer, acceptance, consideration and the acceptance must be of the offer word-for-word.  If there are things that are indefinite you will sometimes agree and then put in contingencies and then have a closing.  So that’s, I think, the best I can do in a short period.

Thomas:         Alright.

Andrew:         So, before the closing date, buyer discovered the water damage says oh look, this is $22,000 dollars-worth of water damage, eff that I’m out of here and I’m not going through with buying this house.  Homeowner then sues and is like dude, we had a contract, are they likely to prevail?  You narrowed it down to one yes and one no answer.  Your no answer was no, because the homeowner concealed stuff!  There was evidence of water damage and a leaky roof and they painted over it.  Seems pretty plausible to me.  D, your yes answer, yes because the buyer acted unreasonably by failing to employ an inspector to conduct an independent inspection of the home.

You ultimately went with B which I’m pleased to tell you-

Thomas:         Alriiight.

Andrew:         -is the correct answer.  The law is reasonable.  It’s fraud when you-

Thomas:         Yeah.

Andrew:         It’s a fraudulent misrepresentation of a material fact when you paint over something and you’re trying to hide something you know to be the case.  I know you might’ve been tempted with 13th Century Saxony, let the buyer beware or whatever.

Thomas:         Mm-hmm.

Andrew:         But even at common law you can’t hide stuff.  [Laughs]  This is why I will not do the classic terrible Tom Hanks, Goldie Hawn movie – is it Goldie Hawn?

Thomas:         Oh, yeah.

Andrew:         About the money pit?

Thomas:         Money Pit?

Andrew:         Yeah, right, ‘cuz the solution to all of that is that you buy the money pit and you go back and you’re like oh no wait I’m invalidating this purchase.

Thomas:         Yeah.

Andrew:         There we go!  We just did Law’d Awful Movies 37 everybody!

Thomas:         [Laughs]  

Andrew:         Freebie for you all!

Thomas:         Oh, good, that’s a lot less work for me!

Andrew:         Yeah, there we go!

Thomas:         [Laughs]  

Andrew:         So, yeah, when you are affirmatively misrepresenting the facts, even at common law that’s a fraud and the buyer gets to rescind the contract.

Thomas:         Well I nailed it!  Ah, thanks Andrew!  Finally back off the schneid as they say in hockey for some reason.  I don’t even know what that means, but okay, yeah, one in a row! [Laughs]  

Andrew:         Hey, all streaks start with one!

Thomas:         Yup, yup!  Alright, well, I’m excited for you to hop into your often-malfunctioning time machine and tell us who this week’s big winner of T3BE is!

[Segment Intro]

Andrew:         Alright Thomas, this week’s winner is @booksthatburn on Twitter, who writes “My answer is ‘B’, no because the homeowner concealed evidence of the leaking roof and water damage from the buyer.  If it had not been painted and the buyer merely didn’t notice an obvious water stain then the homeowner might be fine (but it would still be shady).”  Well congratulations on getting it exactly right for exactly the right reason, it is the active act of concealment that causes the correct answer to be B here, so everyone give Books That Burn a follow on Twitter, again that is @booksthatburn, a podcast reviewing fictional depictions of trauma in books.  Congratulations on being this week’s winner!

[Segment Outro]

Thomas:         Alright, thanks so much for listening.  Thanks most of all to our patrons, again, Law’d Awful Movies Christmas edition, sign on, it’s worth it.  You can listen to all the old ones too, it’s great.  Alright, we will see you folks on Friday for the, as usual, rapid response.

[Show Outro]

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