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[Show Intro]
Thomas: Hello and welcome to Opening Arguments, this is episode 369. I am Thomas Smith, that’s Andrew Torrez. How’re you doing, Andrew?
Andrew: I am doing fantastic, Thomas, how are you?
Thomas: Doing great!
Andrew: Yeah, coronavirus free?
Thomas: Yeah, nothing wrong. I don’t have to worry about having a retirement account anymore.
Andrew: [Laughs] Yeah-
Thomas: That’s a load off my mind! [Laughs]
Andrew: We’re gonna work until we’re 200.
Thomas: Yup.
Andrew: Numerologically it’s episode 3-6-9 so powers of three.
Thomas: Oh!
Andrew: That’s a good, you know.
Thomas: That’s kinda cool.
Andrew: That’s all I got! [Laughs]
Thomas: Yeah, no there’s not much bright side to the world right now. But a little bit in today’s episode, in which we will be discussing an update on the Led Zeppelin – we can never remember. Spirit, Taurus.
Andrew: Taurus is the song, Spirit is the band.
Thomas: Yeah, I’ll never keep that straight! [Laughs]
Andrew: [Laughs]
Thomas: So update on that lawsuit, but also an interview with David Williamson of the Central Florida Freethought Community about a lawsuit. I don’t want spoilers, but, uh, there’s possibly some discrimination against atheists – and other religions, by the way going on. There was a whole lawsuit, it was a whole thing. We’re gonna talk to David about that.
So why don’t we get David on the line and interview him about what went down in Brevard County, Florida? Okay, here we go, let’s get David on the line!
Interview with David Williamson on Humanist Invocations
[Segment Intro]
Thomas: And we are on with David Williamson, Director of the Central Florida Freethought Community, how’re you doing, David?
David: I’m great, I’m great! Good to talk to you guys.
Thomas: You as well! So, Andrew, why don’t you tee us up for the lawsuit we’re discussing today?
Andrew: Yeah, I wanted to have David on to discuss the [Laughing] finally settled, this is now a, I believe, over 4-years in the making lawsuit in Brevard County in Florida involving invocations before the Brevard Board of County Commissioners. David, do you wanna tell us a little bit about the lawsuit and then we’ll work through the legal issues.
David: Yeah, that’d be great. I’m definitely not an attorney, but been a plaintiff for long enough to have a bit of a clue. So five years, nine months, and ten days at last count. [Laughs]
Andrew: But who’s counting? [Laughs]
David: So before the Greece opinion that said prayers are okay at local government meetings, but even atheists are allowed to participate, at least those were the facts in the Greece, NY case.
Andrew: Yup, and that is-
David: Go ahead.
Andrew: Yeah, let me just jump in. That is, listeners of the show will recognize Town of Greece v. Galloway, which is a 2014 Supreme Court opinion. We’ve had Andrew Seidel from FFRF on a bunch of times to talk about it. It really is kind of a terrible gateway opinion in terms of teeing up the accommodationist view on the Supreme Court, which by my eye has at least 5 and possibly 7 adherents. The idea is “you know, there’s this whole separation of church and state thing but it’s not like starting a prayer before a government meeting is actually religious or anything.”
Thomas: Yeah, isn’t it like oh, it’s just for all the weird religions that you can’t do that stuff.
Andrew: [Laughs]
Thomas: Doesn’t that tend to be what the …. Law?
David: And the non-religions as well! [Laughs]
Andrew: Yeah, exactly. So anyway, with that explanation of Greece out of the way, go ahead.
David: Thanks for that! And I trust you’ll keep our listeners up on anything that I kind of hand-wave inappropriately! So we were ready when that decision came out, we had actually already studied our local legislative prayer landscape and nailed down on 20 local government meetings where this was happening, half a dozen where it wasn’t. Once that decision came out we sent out 20 letters, give or take one or two that went out a little bit later and said “hey, we oughtta be involved in this, let us know when we can do it.”
Most everybody got back, some of ‘em took several months and Brevard actually took a couple of months to get a second letter from us and then they voted 5-0 to say “nope, you can’t do this, you can do your thing during the public comment period, which is the secular portion of our business.”
Andrew: So let me just jump in, when you say “got a letter from you”-
David: Mm-hmm?
Andrew: Describe the contents of that letter. Tell our listeners what you asked Brevard County to do.
David: Sure! We had help from the Freedom From Religion Foundation’s attorneys as well as the American Humanist Associations’ Appignani Humanist Legal Center in crafting that letter. It basically said we understand this decision gives us the right to participate, we were obviously hoping that it would not but it did so our letter said “we deserve an opportunity to do this, when can we do it?” as opposed to even asking. That was what the letter had said and we got good responses, mostly.
Andrew: So tell me what a secular or humanist invocation would look like?
David: So there’s definitely a lot of examples of this, we’ve been cataloging them from around the country on our website at cflfreethought.org, but basically we include everyone in that opportunity. It’s very much in the spirit of a prayer, so to speak, in that we call on everybody in the room to be the guidance and the wisdom and the choices that we make should be guided by reason and balanced based on the needs of the community.
We basically are giving a quick pep talk in a way like a prayer, and it sounds like a prayer to some people because we use some of the similar language, but we don’t invoke a god, we invoke the people that are there to help do the business as opposed to somebody on high through divine intervention.
Andrew: Mm-hmm. And when you say you do this, how common? I’m trying to throw potential other objections at you of “oh, is this a stunt, is this just a weird way of trying to bring it down?” How common are secular invocations that sort of call upon the folks who are there?
David: Well, I’m not sure what you mean by “common,” but we’ve done almost 100 now in the last 5 years across Central Florida and there’s probably been close to 100 more across the country as well. This has been a big part of our advocacy and really stepped up our game when it comes to our interfaith involvement as well as our political involvement.
Local leaders and staff members of the cities and counties where we participate have thanked us, sometimes publicly sometimes privately, but there’s still 95% of the invocations in our area are Protestant Christian prayers.
Andrew: Yeah, it’s why I use that word as opposed to majority or plurality or something like that, but that certainly seems like a reasonably frequent occur- again, not in the realm of what I would call a one-off or a stunt or something like that. So, okay, understanding that’s what a secular invocation is, you send out these 20 letters, most of the counties in Florida are receptive to that. You said you’ve given about 100. How did Brevard take it? [Laughs]
David: [Laughs] Well to clarify our scope a little bit, we serve about 5 counties generally-
Andrew: Oh, okay.
David: -and usually more broadly for issues that people bring our way because we’re the State’s only chapter of the Freedom From Religion Foundation, so we do get traffic from a lot of different folks. But the 5 counties around Central Florida are where this has been focused, Brevard being one of them. In the balance of those the other 15 or so – and that number’s gone a little higher lately – are towns and cities where we do this as well where they have legislative prayers.
But I do wanna point out we don’t participate in School Board prayer, we still think that those are inappropriate so we don’t participate in those. In fact, we report those for letters to the attorneys.
Andrew: Okay, understood and I agree with that decision. Just to unpack that a little bit, the argument is in light of Town of Greece v. Galloway the Supreme Court has said that opening legislative meetings with an invocation does not violate the Establishment Clause for …. Reasons.
David: [Laughs]
Andrew: And so I agree 100% with the division of the strategy that says we’re going to read Town of Greece v. Galloway narrowly, as applying to legislative sessions, and not applying as the other side often does, they read that decision as saying no, this means any kind of public meeting we can now open with prayer and that’s not a big deal.
I think there are very good textual reasons within the opinion and also really good practical reasons to differentiate between a legislative session and a school board session, the principle one being that virtually every school board session will have a student member.
David: Right.
Andrew: So your audience is very different, and certainly I think Town of Greece v. Galloway was wrongly decided, but operating in a universe in which that exists you can see the difference between speaking to an audience full of adults in a sectarian way versus speaking to an audience that often includes children as young as 12.
That’s the reason – [Laughing] I think that’s the reason for drawing a distinction; certainly is the reason I would and I would endorse saying hey look, we’re not going to legitimate the strategy of saying that Town of Greece applies to School Board meeting.
David: Right, right.
Andrew: Yeah, so anyway, keep going. Sorry!
David: No problem. I appreciate the clarity you bring to the conversation always. So Brevard didn’t respond well. They had one meeting where they said, after the second letter we sent, “you cannot do this,” and then actually the Anti-Defamation League sent a letter after that and said “everyone needs to be able to do this, you should allow this.” They voted 5-0 the second time to not allow this and that’s when we were already working with attorneys to go ahead and develop something.
We have five plaintiffs and three local organizations who were already working on building the facts of the case.
Andrew: Can I drill down? Again, I just find this really fascinating to get into the specific details. So the ADL filed – or sent a letter as well. Had you been working with them as well prior to that point? Or was that just a lucky coincidence of goals?
David: We did not know David Barkey, the attorney that works in Florida for the Anti-Defamation League, and when that happened certainly we reached out right after that and connected with him and have been collaborating on other issues with him since then. But that was a refreshing surprise at the time.
Andrew: Oh, that’s great.
David: Yeah. So the following year the county was in communication with the attorneys on our team that were building the case, and then the attorneys were building the case with us at the time when they passed a resolution which we anticipated because we monitor the agendas of these meetings. I like to say it’s a 66.6 page resolution that said why we couldn’t participate pointing to humanist writings and atheist writings and how many people have advocated against religion and anti-theistic opinions out of the organizations that were involved locally and nationally.
They were basically saying “you can’t participate in this process because you’re anti-religious.” Of course there’s anti-religious people in the humanist and atheist community and there’s anti-Catholic people in the Protestant community, but those arguments certainly don’t hold water.
Andrew: If I understand correctly they basically went through and cherry-picked atheist authors and said “oh, you’re hostile to religion so you’re not welcome to participate?”
David: Exactly, exactly. The facts got even a little more fascinating when we did our depositions.
Thomas: Couldn’t you pick – for any religion you can probably find people that are very hostile toward other religions? [Laughs] If you pick the right writings?
David: Absolutely, absolutely. There’s always somebody who’s miffed about somebody else and there’s religious lines crossed all the time in that. It was kind of amusing and I don’t think that actually held water. One of the arguments they had in response to the filing was that religious people were in the minority in Brevard County and they used church attendance to justify this!
Andrew: [Laughs] That seems like-
Thomas: They just so happened to have 5 representatives? The 5-0 keep doing these unanimous decisions against you? What are the odds?
Andrew: [Laughs]
David: Yeah, exactly! So I thought that would be enough scientists, enough rocket scientists in the space coast to turn the tide towards secularism, but it is a relatively conservative constituency in the County.
Andrew: Yeah. Yup. Okay, so you get turned down, they pass a resolution that says…
Thomas: Separate but equal?
Andrew: I was gonna say, what exactly does it say? Thomas says separate but equal.
David: That’s right, and that’s certainly an argument that we used when we were talking to the media and others about this case, it’s pretty much what they said. You can use the water fountain in the public comment portion of the meeting, not the prayer portion of the meeting. That’s for the religious community to do that, and they actually said because we were non-theists, and I don’t know that particular language off the top of my head, but because we didn’t believe in god we couldn’t do that.
The depositions made it even more clear how concerned they were about outsiders, not just from the non-theist community.
Andrew: When you say “outsiders” tell me what you mean by that?
David: They basically favored monotheism in their depositions generally, and certainly Christianity. They showed aversion to anything they didn’t understand as far as a religion participating in the process, they definitely demonstrated some ignorance of other faith traditions.
Andrew: Yeah.
David: It was quite clear their motivations at that point.
Andrew: Well I snuck ahead by asking you a question about depositions, that implies that a lawsuit took place, so I take it that was not long in coming after they announced a specific policy excluding non-clergy from participating in the invocation.
David: Absolutely. We had the heads up what this resolution looked like because of the requirement to put these items into an agenda. We had that walking into the meeting, the actual lawsuit was filed the day of the meeting. As soon as they voted in favor of that, we filed, spoke to the media, announced it and we were off and running. That was in July, 2015.
Andrew: Well and I dunno if we wanna talk about this now, but in terms of – one of the reasons I wanted to have you come on the show is in talking about activism, particularly in the age of Trump and in the age where we’re sort of looking at a hostile Supreme Court and a hostile judiciary. I thought the tale of the success, we like to try and cover things that aren’t always terrible news all the time and help give blueprints and hope to our listeners.
With that as an introduction, do you have a thought or do we wanna cover it later on the change in the environment between the way you might have been feeling as a secular activist in 2015 versus today?
David: Absolutely, but along with it the other variable is what I’ve learned since getting involved over ten years ago in the community.
Andrew: Mm-hmm.
David: But we see a lot of problems and we do see some failures of our activism to succeed. We don’t often hear about the positive resolutions, so sometimes there are responses to complaints, simply conversations or letters and those don’t make the news as often as the complaints themselves. When they are favorable the news isn’t quite so interested in it as if the conflict is resolved.
Andrew: [Laughs]
David: They’re about conflict, not resolution!
Andrew: Yeah, yeah. Then talk to us a little bit about that, in terms of how often do you see- again, obviously we’ve had Andrew on and he’s talked about their successes in just writing letters to school districts that have prayers or otherwise inappropriate religious content. Talk a little bit about some of the successes we haven’t seen, and I know I’m taking you down a rabbit trail but you had to know that was coming, coming on the show! [Laughs]
David: No, that’s great! And Andrew’s been a big advocate and ally for us since he came on board, the Freedom From Religion Foundation, about 8 years ago. He was the Florida attorney, of his other States as well, he was our primary attorney in Florida for several years although we haven’t had the success in Florida that we’ve had around the country, there’s certainly some breakdowns in communications and some potential lawsuits already in Florida because we failed to succeed, particularly in Central Florida.
But there are other parts of the State where we’ve had some success stories. We see, on a good year – or I guess I should say a bad year – about 100 complaints or questions that come in from around the State just in our local organization. And they see hundreds more that go to the National organization that we don’t see. So it’s pretty significant numbers. People don’t know their rights or ask questions, and certainly that number would be a lot higher in rural parts of that State where I think non-theists are gonna be much more oppressed.
Andrew: Yeah. And most of those are resolved amicably?
David: No, and I guess that’s your original question.
Andrew: [Laughs]
David: No, certainly not. Most of them are either unaddressed because the facts aren’t clear enough to send a letter, hardly any litigation. We’ve had very few lawsuits in Florida and you’ve heard about them all, generally filed in Federal Court, but no most of those are not favorable but many of them are also questions that we answer and understand. We also build a log of complaints with particular counties and work towards resolution and in particularly Central Florida, Seminal and Orange County we’ve got a backlog of unresolved issues. So we’re seeking plaintiffs to work in those two counties right now.
Andrew: Okay. And that’s good that you’re collecting that information and developing the strategy. Let me apologize for derailing you a little bit, let’s get back on you. You file the lawsuit, you have depositions in which you obtain what I would say is proverbial smoking-gun testimony and head off to Federal U.S. District Court in the Central District of Florida in Orlando. Talk a little bit about that. Was there some sort of trepidation heading into it on the judge draw? What were your thoughts?
David: Certainly. We had a great legal team, Alex Luchenitser from Americans United kept us abreast of the situation throughout the process and I wanna mention the other local organizations. The Humanist Community, the Space Coast, and the Space Coast Freethought Association. We went in this clear-eyed and understanding that we might not get a victory, that we certainly weren’t looking to win any money or any fame, but we felt like the facts were right.
Certainly in that 11th Circuit Court when we started in 2015, things looked better than they do now, but I think we were pretty excited about the opportunity. This was the first lawsuit of this type for most everybody involved, we had had a previous lawsuit here in Orange County, public schools. It was exciting, but as you know painfully slow. The process took a year and a half before we even had a hearing which also was quite interesting to see a hearing but it was not with witnesses, the facts of the case were not in dispute. So that was in October – excuse me, September of 2016.
Andrew: That was a summary judgment?
David: That’s right. I suspect that’s correct, the facts were not in dispute both of the attorneys just basically stated their cases and many, many months later we heard back again, I think it was over a year.
Andrew: [Laughs] And then?
David: We won in December, 2017. Or excuse me, rather October 2017 we won the – Judge Antoon and the Middle District Court in Central Florida ruled in our favor on nearly anything. The only thing we didn’t win on was the claim, of course, that we should have a right to participate. The one thing we didn’t win on was the request to stand, which is as you may know has gone back and forth over the years as compelling people to stand is often used as a way to describe how it makes somebody who doesn’t want to participate feel.
If my attorney would walk into a courtroom with me they would probably advise that I stand for the pledge, and even if there was an illegal prayer they would probably advise me to stand so that I didn’t stand out. This is why standing is a problem.
Andrew: And I just wanna clarify, because obviously we use the term “standing” a lot on the show-
David: Yeah!
Andrew: So the challenge was to the provision of how the invocation was being implemented that required participants in the room to stand respectfully. I understood your argument to be that the requirement of physically standing up was, itself, a form of establishment under the First Amendment. That issue you lost on at the District Court level, while prevailing on the larger issue of inclusion in light of Town of Greece v. Galloway. Right?
David: That’s right, that’s right. Another word that is interesting in this case is we actually had a prayer to the court about secular invocations, which, you know, obviously we’re not pray-ers so that’s an interesting word choice in that light as well!
Andrew: [Laughs]
David: So we found that at least amusing as non-attorneys. [Laughs]
Andrew: I write “prayer for relief” in all of my complaints, so I’m with you and I do twinge a little bit every time. Okay, so you win in late 2017, Brevard County appeals the ruling to the 11th Circuit, was there some thought and did you make an effort to reach out to the county to say ‘yeh, the longer you participate in this process the costlier it’s going to be.” Was there a thought that maybe they might just take their lumps and go back and change the policy?
David: Well, it’s interesting that you ask that, it reminded me- and I don’t remember when the original county attorney that was involved initially left the county, but he has since retired. I understand he was the only county attorney in the nation to file a friend of the court brief in favor of the Town of Greece in the decision.
Andrew: [Laughs]
David: So we definitely knew who we were up against, and I don’t know when he left.
Andrew: Yeah.
David: But they were in it for seemingly the long haul, and I wasn’t privileged to the communications that happened between the attorneys, but I’m sure they discussed that it would be costly and they certainly knew it would be to appeal, but it turns out their not really spending the county’s money, this is insurance money, so I guess it’s everybody who pays into those premiums to that insurance company that are paying for this.
Andrew: Yeah.
David: So that was unfortunate, but even if it was the county’s money I don’t think that the short-term view of the politicians and their perhaps conservative base would care as much about that as the principle of having the right to pray and certainly misunderstanding the Establishment Clause that way.
Andrew: Yeah. Okay, so the County appeals at the end of 2017, that appeal is going to be heard by the 11th Circuit Court of Appeals, which covers Florida, Alabama, and Georgia, right?
David: That’s right.
Andrew: The split off from the old 5th Circuit, and is, again, as you might imagine, considered one of the more conservative appellate courts in the country. What were your thoughts in prepping for that argument before the 11th Circuit?
David: So the attorneys had the ball and ran with it the entire way, they used our facts in the case and certainly consulted with us to develop those, but you’re asking me the questions from the mind of an attorney into the mind of a plaintiff so it’s a little difficult to know the strategy, but they think they were sticking with the facts all along that this was clearly discrimination.
There were two Republican-president appointees on the court, one of which was a Trump appointee. I don’t have the names memorized, you can probably see ‘em if you look up the case, but they actually asked questions that seemed to favor our position whereas the Democrat-appointee, and I think that might have been an Obama-appointee asked questions that were, you know, unfavorable, but we were warned by both of the attorneys that were there, one from the ACLU of Florida, Dan Tilly and also Alex at the time, don’t take that as any kind of indication. Attorneys are pretty good about not picking winners and losers based on the questions asked at the court.
But it was exciting, we got to go down to Miami for that and spend an hour trying to park! [Laughs] But it was a good day and it was an enjoyable experience to see the justice system in action and actually be a part of it.
Andrew: [Laughs] Well I am a strong believer, I have made this position on the show several times, Andrew Seidel and I have nearly come to blows on it-
Thomas: The pronunciation of “amicus?”
David: [Laughs]
Andrew: [Laughs]
Thomas: Oh, no, sorry.
Andrew: But that oral arguments are overrated. He’s – admittedly the counterargument was that he had attended the oral arguments in the – why am I blanking on the name of the Missouri tire resurfacing playground?
David: Oh, Trinity Lutheran?
Thomas: Oh really? [Laughs]
Andrew: The Trinity Lutheran, yeah. Can we go back? Let’s do that right.
Thomas: I think we should let-
Andrew: Yeah, leave it in! That’s fine.
Thomas: Let’s let David have that one.
Andrew: We can leave it in, yeah. Fair enough.
Thomas: Because David just pulled that, when you the lawyer and I the person who’s listened to several episodes about that, could not pull the name. Congrats David.
Andrew: Congrats David, we’re gonna leave it, we’re not gonna do an edit point on that. I blanked on Trinity Lutheran because I have attempted to block it out from my memory! But we actually [Laughing] we walked through Trinity Lutheran on the briefs in an early 2016 segment on the show called “You Be the Supreme Court,”
Thomas: Yeah, that was so much fun!
Andrew: Because I was so confident. The law is just abundantly clear that it had to go the other way, and Andrew came on and said “you know the oral arguments went super bad for us.”
Thomas: Was that the one, wasn’t it not even particularly close, either?
Andrew: Yeah, it was d7-2, yeah.
Thomas: Yeah.
Andrew: So that was bad. [Laughs]
Thomas: [Laughs]
David: [Laughs]
Andrew: So that’s the argument that oral arguments do matter. I, again, it sounds like in your case that it was not a particularly ominous portent as to how that broke down. When the actual decision came down in July of 2019, July 8th I think, the thing that I don’t know is did Brevard County appeal that to the Supreme Court?
David: They did not, they did not appeal that, nope.
Andrew: And typically the reason in which you would give up at that stage is if you think that the underlying facts are really not good as a vehicle for that kind of decision?
David: Mm-hmm.
Andrew: I cut over the punchline because obviously if Brevard County is appealing [Laughs] we know the result which was that the 11th Circuit upheld the district court’s opinion on appeal. Any additional thoughts about that?
David: So they did send it back and I don’t know if a remand was the type of language to use for this, but they did send it back to clarify a few things and then of course the attorneys went back and forth on the terms of that agreement as well as some other details with the case, but it was in just February that we actually had the settlement voted. Which was interesting, 5-0 again, but this time to stop wasting the time and money of the taxpayers, and some of the money that was paid did come out of the pocket of the County and not all of it was paid by the insurance company.
That certainly caught the attention of some local folks, particularly those that are fiscally conservative and concerned about how the county’s money is spent.
Andrew: [Laughs] Right! Well, and then let me be specific about the portion that was sent back on remand. So the ultimate holding of the case – and I should add that this was a 3-0 panel, there was no dissent.
David: Right.
Andrew: But what the 11th Circuit held was that in light of Town of Greece v. Galloway that Brevard County may allow a sectarian prayer at the start of its legislative sessions, but that the selection process can’t be discriminatory under the 1st Amendment and that because of the total discretion vested here and in light of the kinds of testimony that was elicited that said “yeah, we were explicitly going to restrict this to clergy” and as you pointed out, excluding not only humanist organizations but potentially other religions as well. That that was not permissible in light of the rationale.
So what they remand on for fact finding, I’ll read a little bit from the opinion where it says, “We need not and do not reach any further questions presented in this case, including whether the county is obliged to allow the individual or organizational plaintiffs, atheists and secular humanists, the opportunity to deliver an invocation at the start of one of its board meetings.” In other words, the 11th Circuit wasn’t- they said you won but they were saying “look we don’t know what a fair process would look like and if that fair process would include the rights of atheists and secular humanists to deliver the invocations.”
Now, you can read between the lines and guess where they would come out, but that’s what they remand back to the district court for further fact finding, to say okay, so let’s get a real process together and then – sometimes you have in light of this a legislative body may try and take another swing at it and say okay, well, now we’re gonna do it by lot or whatever.
David: Right. Is it common for – first let me say that I did notice that you, as a good attorney, asked me questions that you already knew the answers to, so good on you for that.
Thomas: [Laughs]
Andrew: [Laughs]
David: But also is it common for the courts to not say “well here’s what you could’ve done that would have been legitimate.” Is that very common or uncommon for that to be the case? Because I wonder if it’s Satanists or Native Americans or any other particular minority religion that would not necessarily be in favor, would they be able to reach a better decision because of who they are in being theistic? I know I’m asking you to speculate a little bit, but it seems that that’s odd to me that they didn’t rule on that.
Andrew: That’s a great question. Let me kinda parse out what I think the two principles that apply here are. The first is the legal concept of standing. [Laughs] So not the actual physical activity of rising, but one of the things that courts take very seriously is the idea that they are going to award the relief that is appropriate on the facts of this case and not speculate out as to other potential cases.
David: Right.
Andrew: Even if that would apply on the facts of the people in front of you. I realize that may be a little bit confusing, so let me try and make that specific. In this case the legal question that was presented to the 11th Circuit was: Are the current processes as put into place 5-0 by the Brevard Board of County Commissioners, do they discriminate unconstitutionally, in a way that violates the 1st Amendment in the speaker selection process? Once they rule “yes,” their job is kind of done.
David: Mm-hmm.
Andrew: Those processes are bad, so anything beyond that that says “oh and by the way if you did it this way it would probably be okay,” courts do that sometimes and that part of the opinion is called “dicta.” Which is to say, it is not the holding, it is part of speculation, and sometimes that speculation is more closely tied than others. Certainly a great many cases have a binary outcome, so if you say “not A” is an impermissible outcome, then I would say – as a lawyer I might say that strongly suggests that A is the right outcome?
David: Mm-hmm.
Andrew: As a logician you might say “look, that means A is the outcome!” So that’s sort of the first is that all of your appellate courts, all of your federal courts in general, are going to be sensitive to the idea of standing and confining their ruling to awarding the relief that was sought by the plaintiffs that are before it.
The second is kind of a more general principle, is that appellate courts in particular love the idea of saying “well we’re not gonna decide. We’re called upon to decide the law, we’re not gonna decide any facts so if there’s anything that’s missing at all from the record we will remand it back down to the district court for future fact finding.” Sometimes that remand, as in this case, you can see the writing on the wall, but sometimes you can win, get all the way up to a Circuit Court of Appeal or even the Supreme Court and then your victory could result in going down and a factfinding process that still excludes you from the actual tangible thing that you want done down the line.
David: Right.
Andrew: So that is a real risk, hopefully that answered your question to me which, by the way, nice of coming on as the guest on the show and taking over the interviewing role!
David: [Laughs] Well we all long to hear you talk legalese to us and square it away so we can understand it! [Laughs] We appreciate that, so hopefully that was useful. I will say this, that during the process of the nomination to the Supreme Court during our case we were all very aware and even communicating about the idea that we were less and less interested in this going to the Supreme Court while that was happening. This is a real change in the way that the attorneys at the national levels of the organizations we work with look at whether these cases’ll be litigated at any federal courts. So they’ll probably think more about state courts in some cases.
Andrew: Yeah, I think that’s an excellent segue into drawing this to a close. It’s still possible to be in a conservative part of the country, headed to a conservative appeals court, and prevail on a first amendment claim seeking equal participation on behalf of atheists, secular humanists, and nonbelievers. It should be inspiring to people who are listening to this show to know. We cover a lot of bad stuff.
Thomas: Yeah. [Sighs] I mean, it should also be the bare minimum, but yeah.
Andrew: [Laughs] Well that’s fair.
Thomas: Guys are you excited that you get equal protection under the law? Even though there’s a bunch of religious bigots that are in charge? And it’s like, yeah, I guess I’m excited, but …
David: Yeah, exactly.
Thomas: It seems like the bare minimum.
David: Right. Well we have our shot and right now they’re in a moment of silence in Brevard and we’re monitoring that agenda. If they choose to change that policy we will be involved in making sure that they don’t discriminate against us or anybody else.
I do wanna point out that the legal landscape around this issue with two other cases that actually started and finished at generally the same time: Barker v. Conroy in the D.C. Circuit and Fields v. Speaker of Pa. House as well, those two cases did not go in our favor as folks that are looking to have opportunity to participate in these invocations.
Andrew: And so, you know, what that really does is that sets up a split among the circuits. I don’t know if – this is more of a legal question, but do you view those cases as being distinguishable on the facts or being more, my take, essentially the same facts but coming to an opposite result?
David: Interestingly, and we didn’t talk about this because there’s a lot of nuance in all of these things, particularly when you compare Marsh at the state legislature versus Greece at the local town meetings. Think about the participants as you talked about with the students being at school board meetings. We are involved in these meetings at the local level. There’s not people participating from the audience at either the state or federal legislatures, so the facts are certainly different there and I think the details matter and the facts are unique in each case. You understand that and other people who pay attention to this do.
In the case of local government meetings I hope that this decision is important across the country, it’s still just the 11th Circuit, but that 3rd District decision for Pennsylvania and the D.C. Circuit is still related to state legislatures and in the case of Barker v. Conroy the U.S. House of Representatives, so I don’t know how that bodes well or not for others, but certainly at the local level we’ve got a good victory here.
Andrew: Well I think that’s kind of a great way to bring this to a conclusion. Thomas, I don’t know if you had any other questions you wanted to ask?
Thomas: Yeah, no, sounds good. Really appreciate you coming on and giving us the breakdown. Yeah, it’s kind of frustrating because it feels like none of this should exist to me, but because it exists then therefore also don’t discriminate against atheists. I don’t understand why …. [Sighs] Can these people just do their jobs without having to pray first? That’s what I wanna know.
David: That’s right. There’s a lot of good meetings – or excuse me, a lot of good reasons to participate in these invocation practices, so I don’t wanna go into that now, but being there puts a face on who we are in the eye of the public and particularly getting people to stand there at attention and listen to humanist values being talked about is a positive thing. This isn’t all bad.
Thomas: I guess, I dunno. [Laughs]
Andrew: [Laughs]
Thomas: You know, everyone listening who has a job, do you need to pray before you do your damn job or are you able to just do it? That’s what I wanna know. But sorry, that’s just personal editorializing.
Andrew: [Laughs]
David: [Laughs]
Thomas: I agree with what you’re saying. [Laughs]
Andrew: But I also like David’s point of – there’s actually pretty robust academic research on discrimination against atheists. The reason I can pull this up is because my son used this in one of his debate cases. It was super cool! Some minority groups, when they are more visible – it’s the question of visibility and discrimination against some minority groups increases with increased visibility.
With atheism the data is overwhelming that increasing atheist visibility decreases discrimination, increases the trust variables. It literally is like all of the academic research conclude that the best thing you can do is follow the similar strategy from the gay rights movement in terms of just increasing the visibility of atheists in the public square. That’s why I publicly identify as one, why we do that on our show-
Thomas: Alright!
Andrew: And have guests on there. I think I agree with David that having a humanist stand up and not be weird is a victory for us.
Thomas: [Laughs]
David: Well we even let the weird ones participate.
Andrew: [Laughs]
Thomas: I was gonna say, Andrew, do your best to not be weird.
David: We help write invocations when necessary! [Laughs]
Andrew: [Laughs]
Thomas: [Laughs]
Andrew: I mean, weird from my perspective, so as somebody who delights in reading 900 pages of law review articles and cases every week, I live in the glassiest of glass houses on that.
Thomas: Alright, well David Williamson, thanks so much for joining us! Do you wanna toss out any plugs? If anybody wants to get involved or anything?
David: Yeah, so I would say we’ve got a robust community across Florida and you can find out more about the communities across the State by going to our website at cflfreethought.org and looking for allies and other groups page. We wanna get folks in Florida connected and not so we can just litigate but also so we can socialize, volunteer, and get active in other ways so come check us out!
Thomas: Excellent, thanks so much for joining us!
David: You bet!
[Commercial – Text “OA” to 64-000 to get 20% off sheets and free shipping on https://www.ettitude.com/ sheets]
Led Zeppelin Lawsuit Update
[Segment Intro]
Thomas: Well Andrew, just enough time I think for an update on this Led Zeppelin lawsuit. You’ve done it again! Two for two wild card segments!
Andrew: Well I couldn’t pass up the opportunity to talk some Led Zepp here, we’ve done the past two weeks in a row talking about music law, people seem to enjoy it. I enjoy it, I know you enjoy it, so let’s hit it. Just as a reminder, we’ve covered this episodes 236 and 288 and essentially what happened was Led Zeppelin won at trial in defending their lawsuit alleging copyright infringement by Randy California, the estate of Randy California of the band Spirit in connection with their song Taurus, which Randy California’s lawyers allege that the iconic central riff of Stairway to Heaven rips off their song, Taurus.
What happened was Led Zeppelin prevailed at trial and then on appeal to the 9th Circuit Randy California won a major victory in front of the panel that we described in detail in those previous episodes. Led Zeppelin petitioned for en banc review, which was granted, and the entire 9th Circuit reversed the panel opinion just a couple of days ago.
Thomas: Ooh. Now remind me, was that just on the jury instruction thingy?
Andrew: There were six or seven issues, but the main issue that they reversed on was on the jury instruction. In particular, it’s an issue that is strongly implicated by our discussion last week with Damien Riehl and Noah Rubin on the intuition of copying in what was called the inverse ratio rule.
The inverse ratio rule is what it sounds like. It is a rule in the 9th Circuit that says the stronger the evidence that one party had access to the work that is alleged to have been copyrighted, the less compelling the similarities between the two works need to be in order to give rise to an inference of copying.
Thomas: Right.
Andrew: So what the full 9th Circuit said was that’s no longer good law. We’re gonna go through that kind of quickly, but first I wanted to talk in a couple of ways. Number one, you will see as we go through the [9th] Circuit’s opinion, I think part of the reason they reach this result has to do with the intuitions that we saw on the pro-narrow-view of copyright from Riehl and Rubin.
In a way I think it validates the argument that I made in response to those guys, which was basically I don’t know that copyright needs to be changed with respect to music. It certainly needs to be changed with respect to the technology, we all agree on that, but I don’t know that the equities of the situation require a change because I think the sort of case by case analysis covers a lot of the underlying intuitions that Riehl and Rubin were talking about, but I’ll leave that for folks to evaluate for themselves.
I thought – this is on pages 12-13, obviously we’re gonna link the opinion in the show notes, pages 12-13 really summarize the underlying arguments at trial, and they summarize it so well in a way that’s a little different than the panel opinion, that I think it’s worth pausing on. In particular because Randy California’s expert really articulated what I would call the “Thomas rule” [Laughs]
Thomas: Hmm.
Andrew: In terms of adjudicating copyright infringement for music. Here’s how the court describes what their expert, Alexander Stewart, said. He “analyzed, one by one, five categories of similarities. Dr. Stewart acknowledged that a chromatic scale and arpeggios are common musical elements-
Thomas: Mm-hmm.
Andrew: But he found Taurus and Stairway to be similar because the descending chromatic scales in the two compositions skip the note E and return to the tonic pitch, A, and the notes in the scale have the same durations.
Thomas: Yeah.
Andrew: Then he pointed to three two-note sequences—AB, BC, and CF#—that appear in both compositions. In his view, the presence of successive eighth-note rhythms in both compositions also made them similar. Finally, he testified that the two compositions have the same ‘pitch collection,’ explaining that certain notes appear in the same proportions in the beginning sequence of both works.
In sum, Dr. Stewart claimed that five musical elements in combination were copied because those elements make Taurus unique and memorable, and those elements also appear in Stairway to Heaven.” To me that sounded like the argument you’ve been making in connection with those pieces.
Thomas: Uhhh …Is it?
Andrew: I know you came out the other way. [Laughs]
Thomas: Yeah.
Andrew: But the argument is yeah, it’s not just ding ding ding ding-a ding ding-
Thomas: Yeah.
Andrew: It’s not just copying the melody.
Thomas: Yeah, no it definitely has to be more. I mean we can all agree, and we all agreed the other week that what’s her name case is just ridiculous.
Andrew: [Laughs] The Katy Perry, yeah.
Thomas: Katy Perry, yeah. This is no Katy Perry. This case had more prima facia validity in my opinion than that Katy Perry thing [Sighs] or the Blurred Lines one which was even worse.
Andrew: Well and Blurred Lines was also a 9th Circuit opinion.
Thomas: Oh. Really?
Andrew: Yeah. We got this comment from Jacob, who says “I could take the line ‘it was the best of times it was the worst of times,’ and replace the parts of speech with different words and produce the line ‘he was the smartest of men, he was the dumbest of men.’ That would not be subject to copyright infringement” and I think he’s probably right on that.
Thomas: Yeah.
Andrew: “Because it’s just the grammar. The stylistic pattern of pronoun, verb, article, adjective, preposition, noun can’t by copyrighted. How is this different from copying the melodic pattern of a song and just replacing the notes or chords?” Obviously we don’t have time to fully unpack that, but I thought that was a good- [Laughs]
Thomas: [Sighs] I don’t know if that is a good comparison because if you change the key of a song that does absolutely nothing to protect you. Because it’s totally recognizable, still.
Andrew: Mm-hmm.
Thomas: You know, if I play – I keep going back to Hey Jude, or whatever the song is, Yesterday. If I just transpose it however many semi tones you’re gonna fully – most people can’t even tell that you’ve done that, actually.
Andrew: Hmm.
Thomas: So I don’t know the comparison there, if that holds up between the text and music.
Andrew: Understood. I like the analogy – so I think what you’re saying there is that might come off as just – the shifting might come off as “it was the best of times, it was the blurst of times,” right?
Thomas: Mm?
Andrew: It would be a very minor-
Thomas: [Laughs]
Andrew: Or perhaps indetectable-
Thomas: It’s more like [High pitched voice] “It was the best of times, it was the worst of times!” [Laughs]
Andrew: Got it, yeah. Having Mickey Mou- or Ricky Rouse, sorry. [Laughs]
Thomas: [Laughs]
Andrew: In any event.
Thomas: Well, no, the reason I compare it to what you’re saying, no I compare it to Jacob, was it Jacob?
Andrew: Yeah.
Thomas: I would compare it to Jacob’s example, because if you transpose a work that we all would know and love, transpose it let’s say one step up, one whole note up, those are all – you’ve changed every note. You’ve changed it all, those are all different notes, but it’s the relationships between them that we all recognize.
Andrew: Yeah, that makes sense. Again, I think my larger point in quoting Stewart here is I think it articulated what I would consider to be the “Thomas Rule of-
Thomas: Like a more holistic approach to the composition rather than just the melody.
Andrew: Yup, exactly. Here’s what Ferrara said, and I don’t know that this corresponds to what Riehl and Rubin were talking about, but Ferrara said that the two compositions are completely distinct. First, he showed the difference in the written sheet music. This is why the deposit copy was so important as opposed to the copy that was performed.
Thomas: Still don’t fully get that, but-
Andrew: I don’t get that at all and we can talk about that when we return to music. As somebody who doesn’t read music, yeah, you put up the-
Thomas: Well were we able to finally get our hands on these copies and what they’re talking about? Because it could all depend on however somebody wrote it out.
Andrew: Yeah.
Thomas: There was no way to know for sure without seeing what they’re talking about.
Andrew: So there still isn’t a complete copy of the deposit copy, but – and this is not surprising. The deposit copy is described in the 11th Circuit opinion as a single sheet of paper. In the version we heard that was the concert version was like 4 minutes long and kind of meandering. Again it’s not hard to imagine that they started playing a different version at concerts because that’s what bands do.
Thomas: And remind me, this is the deposit copy of Taurus?
Andrew: Of Taurus, yes.
Thomas: Okay.
Andrew: So Led Zeppelin’s expert says first just look at the sheet music, it’s totally different.
Thomas: Uh-huh.
Andrew: Then he says “and in terms of the claimed similarities they either involve unprotectable common musical elements or they’re random.”
Thomas: Random?
Andrew: “For example, Dr. Ferrara explained that the similarity in the three two-note sequences is not musically significant because in each song the sequences were preceded and followed by different notes to form distinct melodies. He described the purported similarity based on these note sequences as akin to arguing that ‘crab’ and ‘absent’ are similar words because they both have the letter pair ‘ab.’”
Thomas: Mmm?
Andrew: I don’t know that I bought that argument in terms of that being a fair comparison, because, again, the analogy from parts of speech to music is, I think, not quite-
Thomas: I think what he’s getting at might be when I talked about the topline that Stairway to Heaven has, the [Singing].
Andrew: Right.
Thomas: That’s different – I remember the Spirit song is more just the base part it’s just [Singing] so maybe he’s saying rather than just looking at those common notes you put the whole Stairway to Heaven one as one thing rather than just isolating those lower notes that I think are common in both the songs. Actually, I think I agree with that. I think that’s kind of similar to the point I made because the top notes that are in Stairway to Heaven do actually kind of change even the chord a little bit and add something that’s not in the Spirit song.
Andrew: Okay. So those were the positions advanced at trial and, as we have discussed and as we discussed with David Williamson in the main interview segment you don’t appeal on the facts, you appeal on the law.
Thomas: Hmm.
Andrew: And there were a whole bunch of legal issues that were raised by Randy California in appealing to the 9th Circuit, but the key one was the failure to give a jury instruction on the inverse ratio rule, which we’re gonna get to.
Thomas: Hm.
Andrew: But one of the other things – as we get to that, and I promise that’s next, I also wanna point out on page 9 a longstanding Opening Arguments position, which is court’s are always considering fairness. It’s something I’ve said a lot and it’s something that you saw Riehl and Rubin say “well look, there’s gonna be this technical application and there are four notes of similarity and that means poor Katy Perry is gonna get sued by everybody,” and I just wanna read this passage from page 9 on the procedural history, which says:
“Wolfe,” that’s the name for Randy California, that’s his given name, “passed away in 1997. After his death, Wolfe’s mother established the Randy Craig Wolfe Trust and served as the trustee until she passed away. Neither Wolfe nor his mother filed a suit regarding Stairway to Heaven. Michael Skidmore became a co-trustee of the Trust in 2006.
Fast forward forty-three years from the release of Stairway to Heaven to May 2014. … One may wonder how a suit so long in the making could survive a laches defense.” Laches, we’ve brought up this word before, it’s an equitable defense, that means unreasonable delay. It means it’s an assertion by the defendant that the plaintiff has also been negligent, in this case negligent in asserting his or her legal rights, so it kind of works as a common law statute of limitations.
It says look, if you thought – you’ve heard Stairway to Heaven. [Laughs] If you thought it infringed your song, maybe you should’ve sued us in 1971 or 1973.
Thomas: Yeah.
Andrew: But 2014 seems an awful long time away. Then the 9th Circuit continues: “The Supreme Court answered this question in Petrella v. Metro-Goldwyn-Mayer,” a 2014 case, “which clarified that laches is not a defense where copyright infringement is ongoing.”
In practical terms that means since I can turn on, you know, [Radio Announcer] KWOLD, all oldies all the time – which, by the way, would be a station I would totally listen to-
Thomas: Mm-hmm.
Andrew: -and hear Led Zeppelin’s Stairway to Heaven, that means that the infringement is ongoing so there’s no laches defense. That’s also how you get around statute of limitations. It’s a little weird, I could see a distinction that says yeah, statutes of limitation do not toll when the injury is ongoing, but the equitable defense does. I could see that result, but nevertheless the Supreme Court said that laches is not a defense to ongoing copyright infringement.
So you can see the 9th Circuit kind of saying “alright, we’ve gotta take this case seriously, but we’re not happy about it.”
Thomas: Hmm.
Andrew: “We think that there’s some inequity,” so it’s not surprising, then, they kind of looked for a way to reach the other result.
And now, at long last, we get to the inverse ration rule. I described it, I will tell you that in many ways – first, the inverse ratio rule, the idea that the stronger the evidence of access the less evidence you need of similarity, has some intuitive appeal.
Thomas: Yeah! Seems right to me.
Andrew: Yeah, right. Again, we went through this with Riehl and Rubin, versus the baby kind of crying a potential Katy Perry melody, [Chuckles] which strikes me as not implausible, that you would say “alright, I’d need an awful lot of similarity to believe that Katy Perry stole the melody from a baby-
Thomas: Yup.
Andrew: -as opposed to stole it from those rappers. But then the 9th Circuit says consider some problems with this rule. And note, by the way, this is a rule of interpretation, it’s not in the statue. The copyright law does not say the more you prove access the less you have to prove similarity, this is just a way at getting at the fundamental question that I described which is given that a copyright infringer is going to say “no, I created this simultaneously and it’s just a coincidence,” how do you disprove that assertion?
The 9th Circuit comes up with three arguments against the inverse ratio rule from a public policy perspective.
Thomas: You know what? Maybe you didn’t leave enough time for this one.
Andrew: [Laughs]
Thomas: [Laughs]
Andrew: We’ll go quickly! Alright! So first they say “what does access really mean in an age of SoundCloud?”
Thomas: Huh.
Andrew: We’re quickly, from a technological perspective-
Thomas: Yeah.
Andrew: -moving to a position where everybody has access to everything.
Thomas: Makes sense. Yeah, back in the day how are you gonna hear Taurus and Spirit or whatever unless you literally were touring with them. There’s no other way.
Andrew: Which you kinda were.
Thomas: Which they were! No, which I’m saying, that’s a more- but nowadays everyone basically has access to every single thing ‘cuz it’s all on the internet so I guess that makes sense.
Andrew: Yup, that was point one. Point two is also this rule seems to work in the middle as a gut check, but if you take it to its logical extreme it becomes nonsense. If I have complete access to a song but I have no similarity between my song-
Thomas: Yeah.
Andrew: Right? That wouldn’t be infringement at all.
Thomas: Well you wouldn’t set it at zero.
Andrew: [Laughs] Right.
Thomas: You’d set it where you need some base level of similarity and then from there, you know.
Andrew: Yeah. I think this is their weakest argument, but they point it out. Then their third argument, which I hadn’t considered before, is it also seems unfair. This is from page 32 of the opinion and I’m just gonna quote it.
“To the extent ‘access’ still has meaning, the inverse ratio rule unfairly advantages those whose work is most accessible by lowering the standard of proof for similarity. Thus the rule benefits those with highly popular works,” and then they go off, I guess the judge’s clerk was a fan of The Office? [Laughs] “Like The Office, which are also highly accessible. But nothing in copyright law suggests that a work deserves stronger legal protection simply because it is more popular or owned by better-funded rights holders.”
I think that’s not a bad argument either.
Then – I won’t go through this – the 9th Circuit does say – and I would encourage everybody to read this because we talk about stare decisis on the show. All the time. And how the Supreme Court cavalierly disregards prior precedent. This is good analysis on stare decisis. It says hey, we’re mindful of the fact that the inverse ratio rule has been the rule in the 9th Circuit for decades. We get it, we don’t lightly come to the conclusion that we should overturn it, but we’re gonna go through a dozen cases of how it’s really really hard to apply this and it produces inconsistent and contradictory results and most importantly we’re going to go through the fact that what made sense in 1975 in terms of access doesn’t make sense in terms of 2020.
Thomas: Yeah.
Andrew: In terms of access. It really is, it’s a good blueprint because I get asked this question at debates and by listeners all the time of oh well you’re saying stare decisis is so great, but Brown v. Board of Education was pretty great too and I will say to them yeah. I’m not saying we’re always bound by prior decisions, I’m saying that when you depart from a prior decision you should have compelling reasons for doing so and they should be more than just “I’m Clarence Thomas and I don’t like that other case anymore.” This does a good job of laying that out.
Thomas: Mm-hmm.
Andrew: So the net result is that the 9th and 6th Circuits previously adopted the inverse ratio rule. The 2nd, 5th, 7th, and 11th have rejected the inverse ratio rules, so if Randy California wants to appeal to the Supreme Court – we called our initial conversation on this “Stairway to the Supreme Court,” not just because – I think you picked that title – not just because it was a great clickbait, but this would make – this is the kind of case that the Supreme Court is likely to take.
So we’ll know in a couple of weeks if Randy California appeals this decision to the Supreme Court. I have no idea – through his estate and Michael Skidmoore, I would think so and I think the Supreme Court is likely to take this.
Thomas: Just so they can set the rule straight?
Andrew: Right, so they can adjudicate this conflict between the circuits.
Thomas: But just as a reminder, even if they win – even if the Randy California Estate wins or whatever – because it was on the jury instructions doesn’t that just mean they have to redo the whole thing?
Andrew: That’s exactly right.
Thomas: Okay.
Andrew: And that’s another great callback to our interview with David. If Randy California wins before the Supreme Court what he will get is a new trial.
Thomas: [Laughs] A chance to do it all again?
Andrew: That’s exactly right! At the end of the day we’re still a ways off from him gaining the some percentage of a million-billion-trillion dollars or whatever.
Thomas: Yeah, all the money ever printed.
Andrew: [Laughs] All the money in the Western Hemisphere, yes. So there you go.
Thomas: Wow! Well there’s your update. That was a medium dive. So not exactly a Wild Card Segment but it’s okay, we always make time for our friends Led Zeppelin. [Laughs]
Andrew: Absolutely.
Thomas: Our great personal friends. Good times! I still have so many questions about all the music case and stuff, we’ve gotta keep this going. We’ll do more at some point.
Andrew: Yeah! Absolutely. I love it.
Thomas: It’s fun. But what we need to do now is thank our top patrons, our hall of famers, our all time greats here on Top Patron Tuesday.
[Patron Shout Outs]
Thomas: Alright, finally it is time to hear what in the world happened with this T3BE!
T3BE – Answer
[Segment Intro]
Andrew: Alright, this is a man owned land, took out a loan, secured by a mortgage on the land. The man had personal liability on the loan. He then sold the land to a purchaser who assumed the mortgage debt. The purchaser failed to make two installment payments. To prevent default and foreclosure, the man paid those overdue installments, after making those payments sued the purchaser for reimbursement. Will he be likely to prevail?
You picked the answer I could barely say-
Thomas: Yeah!
Andrew: C, yes because the law of suretyship [Laughs] permits the man to seek reimbursement and I’m not gonna screw around and say suretyship any more than I have to. You are 100% correct.
Thomas: [Laughs] Ha ha haa! Oh that’s funny.
Andrew: So let’s explain this out a little bit because there’s the question of why is he paying-
Thomas: [Laughs] There’s a question of why any of this, what is any of this? There’s a lot of questions, Andrew, there are a lot of questions.
Andrew: So the man, as the mortgagor-
Thomas: Okay.
Andrew: -has the personal liability for the loan.
Thomas: Yup.
Andrew: The purchaser assumes the debt. As soon as the man pays an overdue installment he acquires the right to seek reimbursement under the law of suretyship. So option A is incorrect, you do not have to foreclose in order to do that.
Thomas: What would you be foreclosing? I don’t understand.
Andrew: On the property itself. So here’s the thing, the reason why the man wants to pay the debt is because his personal liability-
Thomas: He still has personal liability?
Andrew: Right.
Thomas: Despite the fact that it’s secured by land which he no longer has?
Andrew: Which he no longer owns, that’s right.
Thomas: Wouldn’t you think that the bank would go after the land?
Andrew: You would think.
Thomas: Okay.
Andrew: This is – plenty of law of bar exam questions involve situations that are technically possible but wildly implausible.
Thomas: Weird? Okay, alright, okay.
Andrew: But it’s 100% true. The fact that D is wrong, the man’s transfer of the land does not discharge him from personal liability means-
Thomas: I think I at least – that’s the one thing that I intentionally got right, I guess. Everything else was just luck, but I did think D didn’t make sense for that reason, so there you go.
Andrew: Yeah, so that’s the reason that he would want to pay an obligation on behalf of someone else. That’s the principle of suretyship.
Thomas: Yeah.
Andrew: Which today is – understanding the common law principles are useful if you’ve got the time machine set for 13th Century Saxony.
Thomas: [Laughs]
Andrew: Today it’s by and large a principle in insurance when you have a third-party that has responsibility for paying the debts of somebody else. Here the reason you would do that is to avoid a situation where the original – where the bank can come back and collect against you personally.
In that situation the law created at common law this notion of suretyship which says yeah, you don’t have to go through the whole – even though the man is now standing in the shoes of the bank with respect to the purchaser of the land, you don’t have to go through the whole crazy foreclosure process to try and get your money back, you can just pay back the debt and go sue that guy for the money that you spent on his behalf.
I think ultimately you analyzed it correctly.
Thomas: Yeah. Anyway, I’m 100% right everybody!
Andrew: And you definitely answered it correctly! Yeah!
Thomas: I definitely understood all that!
Andrew: Yeah, there you go! Good work!
Thomas: Alright! I win! [Laughs]
Andrew: You! Win!
Thomas: Let’s see, I’m very curious to step in our time machine, figure out who got this one right. I dunno, maybe we’ll go with a wrong answer, we’ll see. Andrew, hop in that time machine, tell us who this week’s winner is!
[Segment Intro]
Andrew: Alright Thomas, a lot of folks played along this week and a lot of folks got the answer correct. I thought a particularly short and pithy and correct answer came from Alex Schaefer, that’s @Math_Professor on Twitter who writes “Thomas, maybe he sold the land to his kid? It’s a family house or whatever so he wants to avoid foreclosure. That said, I dunno what the answer is or what surety means so I’m going with C also.”
I love the math professor’s honesty there and again, absolutely right. There are lots of reasons why somebody who owns a property subject to a mortgage may sell it off but remain liable and would want to pay to avoid foreclosure, so congratulations Alex Schaefer, everyone give @Math_Professor a follow on Twitter and congratulations for being this week’s coronavirus-free winner!
[Segment Outro]
Thomas: Alright, thanks so much for listening everybody! Stay safe out there, wash your hands, don’t touch your face! All that stuff and we’ll see you on Friday!
Andrew: See you then!
[Show Outro]