Transcript of OA496: Stanford Law Forgets How Law Works

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[Show Intro]

Thomas:         Hello and welcome to Opening Arguments, this is episode 496.  I’m Thomas, that’s Andrew, how’re you doing, sir?

Andrew:         I am fantastic, Thomas, and I actually mean that.

Thomas:         Oh!  I’ve got a terrible announcement, Andrew.

Andrew:         Okay?

Thomas:         I’ve shut down my blog.

Andrew:         Oh! [Chuckles]

Thomas:         Yeah, so I had a blog and then I realized it wasn’t 2005.

Andrew:         Right, right.  Yeah.

Thomas:         I had to shut it down. [Laughs]

Andrew:         And you’re not a lawyer.  Apparently 95% of the legal are all still blogs.

Thomas:         Oh really?  Wow.

Andrew:         Yeah, it’s like there’s a category for blogs, there’s a category for faxes, I think.

Thomas:         [Laughs]

Andrew:         Ham radio broadcasts.

Thomas:         I guess Trump didn’t win one of those blog awards and so he had to shut his blog down.  It’s heartbreaking, truly a heartbreaking tale.

Andrew:         [Sighs] Yeah, yeah.

Thomas:         I laughed out load when I saw the news that he shut down his blog.  [Laughs]

Andrew:         [Laughs]

Thomas:         It really goes – in seriousness, though, it goes to show that the Twitter ban is real.  That does work.

Andrew:         Hmm.

Thomas:         It worked with Milo Yiannopoulos.

Andrew:         Yeah!

Thomas:         It’s going – Trump, I don’t think he can win in 2024 without social media.  Now I do think that they will just find an excuse to put him back and then he’ll win and then we have to deal with that.  [Laughs] Don’t think I’m like some huge optimist, but if somehow – I think Zuckerberg already let him back, but the Twitter guy, if he didn’t let Trump back, I actually think it’s a huge blow to Trump and the evidence of that is he had a pathetic blog that no one read and then he shut it down after, what, 28 days or something like that?

Andrew:         [Laughs] I think social science research agrees with your intuitions, there.

Thomas:         [Laughs] Well, let’s get to the law for today.

Andrew:         Let’s do that, yeah.

Thomas:         We’ve got some really interesting stuff.  You want to tell some people what we’re not covering today?  [Laughs]

Andrew:         I do!  I want to tell people two things we’re not covering today.  First, a dozen of you have emailed me about the Steven Donziger case.  We’re aware of it, but all of the things that you find interesting about that case are things that we’re not qualified to evaluate yet.  The conditions of the house arrest and X, Y, and Z, and I will tell you, Steven Donziger is not somebody who is without a voice.  He’s been on The Daily Show.  The House Progressive Caucus, including Jamie Raskin has formally asked the DOJ to investigate his disbarment.  The likelihood that we will get public information in the form of documents that we can review and then cover is reasonably high, and policy of the show, you don’t need us to regurgitate facts that are out there in other media outlets that are not, you know, part of legal documents.

Thomas:         If there’s not a document out there for Andrew to Scrooge McDuck into he’s not covering it.

Andrew:         [Laughs]

Thomas:         He told me that explicitly when we started the show.

Andrew:         I like reading words, what can I say?

Thomas:         [Laughs]

Andrew:         Alright, but secondly, next week our goal is to make a 100% sharable with your Uncle Frank or with anybody in your family or circle of friends who is involved in or is considering a Christian healthcare sharing ministry?

Thomas:         Oh.

Andrew:         It is a huge scam.  It’s way worse than you think, it has nothing to do with whether, you know, like you and I, whether you’re an atheist or not.  No one should be involved in this and I’m gonna tell the story of why this came on my radar, this totally irresponsible piece from Market- all that good stuff, and hopefully you can share that out and scare straight some of your family members into not participating in those kinds of programs.

Thomas:         Yeah.  We may have disagreements here with your Uncles Frank but if you care about your Uncle Frank, you probably don’t want them to get taken in by a huge scam.

Andrew:         Yeah.

Thomas:         This is probably good for everybody if you tune in next show.  Okay, let’s get to this show.

Breakin’ Down the Law: Derek Chauvin’s Motion for Mitigated Downward Departure

[5:22.8] [Segment Intro]

Thomas:         So, I hear the Chauvin – obviously they’re contemplating like oh, up to 30 years for Chauvin, and his counteroffer was like … hmm, detention?  [Laughs]

Andrew:         Indeed, it was.  Yes.

Thomas:         [Laughs]

Andrew:         Chauvin’s lawyers filed a Motion for Mitigated Departure, a downward departure motion.  You have every right to do that.

Thomas:         Mm-hmm.

Andrew:         This is the flipside of the investigation and findings conducted by the Court pursuant to his Blakely waiver, which we’ve talked about.  You otherwise have the right to litigate in front of the jury to determine whether sufficient facts exist to merit an upward departure, which after a Blakely waiver Chauvin, I think his lawyers very intelligently decided that they would rather have the judge evaluate those facts than the jury.  The judge said yeah, I found four separate factors that are aggravating factors that warrant an upward departure.  We discussed that-

Thomas:         Mm-hmm.

Andrew:         -at some length when that came out.  Now Chauvin’s lawyers are arguing, to the same judge [Laughs] who found the aggravating factor – no no no no no, there really are a bunch of mitigating factors.  I will tell you; this memorandum is 17 pages long; it makes one good argument that is a paragraph long.  It will not reach any of its stated goals, and the one factor they’ve pointed out is something that I expect that the judge will say yeah, you’re right on this but it doesn’t change my recommendation. 

Let’s go quickly through it.  There are three separate categories of arguments that this memorandum makes.  The first, as you’ve pointed out, as has been correctly pointed out in the press, is a plea to the Court to convert the entire sentence – again, this is presumptively a twelve-and-a-half-year sentence, into (quote) “a stringent probationary term” (end of quote).  There is zero chance that this Court is going-

Thomas:         [Laughs]

Andrew:         He’s going to say “oh, you rascally child, yeah, that’s right, we’ll give you probation.”  Look, we’ve talked about this on the show before, the how as a lawyer you balance your duty of zealous advocacy to your client to raise all the arguments you’re entitled to raise with your obligation to your client of zealous advocacy to build up credibility in the Court.  I will tell you, again, not a criminal defense lawyer.  This category of argument is so bad that my instinct – and again, we have lots of criminal defense attorneys, public defenders, maybe you make this as a matter of course and you don’t lose credibility with the judge by setting it out.  Write in, let me know.  To me, putting this in writing undercuts the one good point that you’re going to make later. 

Here are the entirety of the arguments that are raised by defense counsel for urging the Court to use its discretion to grant a downward departure all the way down to probation.  Obviously one category of that is this is a defendant who is amenable to probation.  How do we know he’s amenable to probation?  Because we say he is.  [Laughs] He cooperated with the court during a trial that was public.  I mean, essentially the argument there seems to be “this isn’t Roger Stone,” who flaunted the court’s orders and, you know, went back and put Judge Amy Berman Jackson in the crosshairs on his website and all that kind of stuff.  “We did what the Court told us to do” is not usually the greatest argument for why you are a model criminal defendant, but they make that argument.

They make the argument that he has no criminal history, which is of course taken into account on the sentencing chart already.  Dunno how much that’s gonna get you.  They make the argument that he’s 45 and that cops die young.

Thomas:         [Laughs]

Andrew:         I wish I were joking about that, but it’s like yeah, you know, he’s 45, you’d think this would be the prime of his life but you’re gonna put him away in prison for twelve and a half plus years and by the time he comes out he’s gonna be an old man and cops die early so, you know, don’t do that to him.

Thomas:         Hmm.

Andrew:         To which I would think the Judge’s response is, like, well try to commit fewer murders when you’re 45.  That would be my response.  But, you know, it is what it is.  Then the last kind of argument in this section that is a good transition to the next one is the argument that he was a good cop for 19 years and he (quote) “had consistently high scores on his annual reviews” and was (quote) “well regarded by his supervisors and peers,” which seems to be part of the problem rather than reason for departing downward, but those are the arguments for probation.

Thomas:         Are you convinced?  [Laughs]

Andrew:         [Laughs] I was gonna say, I doubt Tucker Carlson is gonna feature these arguments.

Thomas:         Yeah.

Andrew:         These are not great arguments.  Okay, so, alright, we start with the big ask.  Maybe we’re setting it up for the moderate ask which is okay, at least depart downward from the statutory minimum.  This is presumptively gonna be 150 months, let’s go less than that, give him a shorter sentence.  Here there are two arguments that are made, and the first one is – I’m just going to read it to you, it’s from page 11 because I really think that this is gonna backfire. 

(Quote) “Here, Mr. Chauvin was unaware that he was even committing a crime. In fact, in his mind, he was simply performing his lawful duty in assisting other officers in the arrest of George Floyd.  Mr. Chauvin’s is not a typical case in which a person is commits” (that’s a typo, but whatever)-

Thomas:         Wow.

Andrew:         “[A]n assault that results in the death of another.  As is clear from Mr. Chauvin’s actions, had he believed he was committing a crime, as licensed police officer, Mr. Chauvin simply would not have done so.”

Thomas:         He would’ve arrested himself.

Andrew:         Yeah.

Thomas:         Oh no, sorry.

Andrew:         “[His] offense is best described as an error made in good faith reliance his own experience as a police officer and the training he had received—not intentional commission of an illegal act.”

Thomas:         I mean, he’s – it’s not 100% wrong, you know?

Andrew:         No!  No, it isn’t!  [Laughs]

Thomas:         It’s like [Laughs] hey, I thought we’re all police officers here, right?  Uhh, I was operating under the idea that, you know, we’re allowed to kill a suspect from time to time, that seems to be fine, right?  Why is this my fault?  Why is this all coming down on me?

Andrew:         The fact that that’s absolutely how it reads.  [Laughs]

Thomas:         Yeah!  [Laughs]

Andrew:         Is a strong indication that maybe it’s not the kind of thing you should’ve put into writing, because look, the intentionality component of this, the awareness component, has already been adjudicated by the jury.

Thomas:         I was gonna ask that, yeah.

Andrew:         Yeah.

Thomas:         Isn’t that part of the crime already?

Andrew:         100%.

Thomas:         Yeah.

Andrew:         You had the requisite scienter under the law.

Thomas:         That’s almost like if you said hey, okay, mitigating circumstances, I didn’t do it.

Andrew:         Right.

Thomas:         Then you’re like well… that doesn’t work.  [Laughs]

Andrew:         Yeah, yeah.  Exactly right.  The fact – to me if I were the judge, I would look at this and go yeah, this is an ongoing-

Thomas:         We had a whole trial about this, buddy!  [Laughs]

Andrew:         -proof of lack of remorse, that’s right.

Thomas:         Yeah.  Yeah, yeah, yeah!  Oooh!  Oh, yeah.

Andrew:         What you want to see in a downward departure motion, and again, I’m most familiar with these in the federal system in connection with the federal sentencing guidelines, not my area, but you want to see somebody who says you know what?  I accepted guilt early on, I cooperated with the government, I assisted in every possible way.  You see those in plea deals sometimes where the government will preserve the right for an early cooperating witness to move for a downward departure.  They will say look, we’re gonna agree to a sentencing guideline range here as per the chart, but we’re gonna leave it free and we will not oppose – that is also sometimes a condition that you’ll see in federal plea agreements – if your lawyer moves the Court for a downward departure, to go less than the sentencing guidelines.  So long as you truthfully recount what happens, we won’t oppose that.  Axiomatically as a function of making those kinds of motions, the very first thing you say is “my client displays full remorse for what they’ve done.”

Thomas:         Mm-hmm.

Andrew:         They immediately knew that it was wrong, they went and plead guilty and cooperated.  Right?  Those are the kinds of things that tell you in a criminal justice system that this person won’t do it again.  I’m kind of shocked that you would make an argument-

Thomas:         Yeah.

Andrew:         -to the contrary in this.  The other argument that’s sort of embedded in that is just another terrible argument that says, you know, from 2014 to 2018 – actually, I think this is a positive sign for the criminal justice system.  [Laughing] It says “of those defendants with a zero-criminal history, 14% of them got a reduced sentence.”

Thomas:         Hmm.

Andrew:         Then it points out that one of the commonalities is that crimes were committed with the lack of a dangerous weapon.

Thomas:         Oh.

Andrew:         They’ve actually made that argument here of look, it’s not like he was using firearm or taser or whatever.

Thomas:         Yeah.

Andrew:         Again, this seems like, at best, a wash?  He was wearing a firearm and a taser, it-

Thomas:         Yeah, like if under the threat of a gun you do – you brutally murder someone by hand it’s not like “well, I didn’t use the gun!”

Andrew:         I didn’t use the gun.  That literally is the argument that is made in this motion.

Thomas:         Yeah.

Andrew:         And again, if that strikes you as not a great argument, I think we are probably in fairly significant agreement at that point.

Thomas:         Yeah.  Well, what about the idea, you said earlier the idea of not committing it again.  Don’t hate me, but-

Andrew:         Yeah.

Thomas:         Just arguing on Chauvin’s side here.  Is there any place where they’re like “look, he only could do this because he was a police officer and he’s never gonna be a police officer again.”  Does that mitigate the risk of reoffending?

Andrew:         The risk of reoffending is not-

Thomas:         Oh, that’s like a parole thing, I guess.

Andrew:         Yeah, it’s not part-

Thomas:         Sorry.

Andrew:         No no no, it’s a great question!

Thomas:         But you mentioned you can argue I’m not a risk to do more crime, right?  Didn’t you say something like that?

Andrew:         Yeah, no that is exactly right.  What you’re trying to do here in a downward departure memorandum is you’re trying to say for other similarly situated criminal defendants this one is particularly better.  The sentencing chart is meant to describe the average first time offender of 2nd degree murder, and I’m going to show you in my memorandum if I’m doing the best job for my client that I can, why the general circumstances that lead you to conclude twelve and a half years for somebody with a zero criminal history are not present here.  This person is even better than that.  Yeah, the kinds of things you’re describing are the kinds of things to which I suspect when the prosecutors file their reply will say yeah, you’re pointing out, those kinds of things are already inherent in the table. 

Thomas:         Hmm.

Andrew:         You can point out lack of risk of reoffending-

Thomas:         Oh.

Andrew:         The classic, yeah, he’s not a serial murderer.

Thomas:         Okay.

Andrew:         But he’s a murderer!  So, yeah.

Thomas:         So, you’re saying, essentially, that’s already been accounted for in how we got here in the first place.

Andrew:         Right.

Thomas:         Okay.

Andrew:         That is exactly right.  What this has to show you is this person is better than, in ways that are not taken into account in the sentencing guidelines, a typical defendant.  So far that’s what the first two arguments were directed at.  Then the third argument is “well at least you shouldn’t find the aggravation that you found.”

Thomas:         Hmm.

Andrew:         Here’s where they make, in this brief, the only good legal argument, which again, when I look at this and I read this from an outside perspective, I think I would’ve done my best to lead with the only good argument and make it in the context of everything.

Let’s talk about the bad arguments that are made even in this section.  This is section III, “at least just give us the twelve and a half years.”  Don’t give us an aggravated upward departure of a greater than guideline sentence.  What they have to do there is rebut the four findings that the Court made that we detailed on this show as to why an upward departure was necessary.  Those four findings were, number one, excessive cruelty.  Here the argument is that you know, this is really just a garden-variety third-degree assault that was the underlying assault.  It wasn’t particularly cruel because, and again, quoting directly from the memorandum, “The infliction of substantial bodily injury necessarily causes pain.  The assault of Mr. Floyd occurred in the course of a very short time, involved no threats or taunting, such as putting a gun to his head and pulling the trigger … and ended when EMS” (the Emergency Medical Services) “finally responded to officers’ calls.”

In fact, “the fact that officers [called the ambulance] served to mitigate any cruelty with which Mr. Floyd had been treated.  Officers called an ambulance before the struggle … began, and upgraded the call during the struggle.  It was the arrival of the ambulance, within minutes, that ended the incident.” Which … is not how I would describe this case, but it’s how they argue in the brief.  That’s their argument on particular cruelty, hey look, we called for an ambulance.  That doesn’t seem great.

Their argument against the fact that he abused his position of trust is that no case has ever held that in the context of police officer, which is true, but again, not a great argument.  The argument against the aggravating factor that it was in front of children is that the other cases all involved kids who were unable to leave the scene.  It was either like a home invasion or one was a mass shooting at a daycare.  Here the idea is they’re kinda just bystanders, they’re kinda hanging around.  Again, evaluate that as you see fit.  I mean, to me it seems as though it meets that requirement, particularly combined with the other two factors.

The one argument they make that I think is good is made on the second to the last page of the brief – third to the last, sorry.  This is page 15.  The Court found this was undertaken in connection with three or more offenders.  You may recall that when the Court made that finding-

Thomas:         Oh, yeah.

Andrew:         I expressed some shock.  I was like I didn’t expect them to do that.

Thomas:         Because you didn’t want it to bear on the other trials at all and maybe risk that if one of them is found innocent then it says that factor would maybe be not appropriate so then he could appeal it, right?

Andrew:         That’s exactly right.

Thomas:         Okay.

Andrew:         That is exactly the argument that Chauvin’s lawyers make in this brief.  They say “the Defense fails to understand how [this] Court could find beyond a reasonable doubt” (because that is the requirement) “before any evidence has been presented in their cases” (meaning the other officers) “that Mr. Chauvin’s codefendants actively participated in the crime of which [Derek Chauvin] has been convicted.  At this point, [the] codefendants have merely been charged with accomplice liability … which places the burden on the State to prove beyond a reasonable doubt that the codefendants intentionally aided Mr. Chauvin in commission of the offense … [that] means [they] must have been aware of Mr. Chauvin’s intent to commit third-degree assault… [and] the State has not yet met its burden of proving as [such] … [and] the codefendants must be presumed innocent of the alleged offenses.”

That’s all true.  There is an ongoing trial and that trial is not a foregone conclusion for precisely the intent-based standard that is just set out there.  I think the Judge is going to take a look at that and for the arguments that I’ve said in order to bulletproof the finding on appeal strike that particular finding and say that is correct, I shouldn’t have said three or more offenders, there are only three aggravating factors here.  But three is more than enough for me to give an upward departure and a sentence that is longer than the sentencing guidelines.

Thomas:         Mm-hmm.

Andrew:         That’s my prediction, but that’s the breakdown of what the Defense is asking for.

Thomas:         So, we’re not getting detention?  [Laughs]

Andrew:         [Laughing] We are not getting detention. 

Thomas:         But you think maybe, to sum it up, maybe not quite as long as would have been if the Judge just went with what they already said?

Andrew:         I don’t know that it will affect the sentence.

Thomas:         Oh, okay.

Andrew:         I think the question that the Judge has in mind is I want to send a message that this was particularly heinous.

Thomas:         Yeah.

Andrew:         That this involved somebody that the community trusted and for which we have this background condition of the idea of yeah, you call the police to get you out of a difficult situation, not to put you in one.  I really think that that struck at sort of the core of the Judge, here.  Then the precise circumstances with cruelty.  I might add that, you know, lack of remorse.

Thomas:         Yeah.

Andrew:         [Laughing] As an additional finding.  His counsel, you know-

Thomas:         Yeah!  Could the Judge be like “you’re making it worse, buddy.”

Andrew:         Yeah!  I would absolutely, 100% say that.

Thomas:         Wow.

Andrew:         Say yup, they’re right.  In terms of what the State can consider, in terms of what cooperating with multiple offenders, that doesn’t change our analysis that this is a particularly heinous crime and particularly deserves an upward departure.  That would be my prediction.

[23:54.1] [Commercial]

Stanford Law Forgets How Law Works

[25:41.3] [Segment Intro]

Thomas:         Alright, let’s talk about the actual only cancel culture that really exists in our society, which is right wing cancel culture, historically.

Andrew:         Yeah!  [Laughs]

Thomas:         Actual – [Laughs] I won’t go into an entire thing, Andrew, but every time I research the alleged left wing cancel culture the stories are badly misrepresented and aren’t at all what the IDW conservative, whoever Ben Shapiros are saying they are, and then when there’s an actual right wing cancelling it’s fairly severe.  For example, States are right now passing laws saying you can’t teach critical race theory.  They’re banning books, essentially.

Andrew:         Yeah.

Thomas:         They’re banning education.  Actual using real power to actually cancel people by law.  That seems to be the asymmetry I see.  Let’s see if this is an example of this.  You may have heard of this really funny [Laughs] flyer that was put out by a student?  Why don’t you give us the details of this, Andrew?

Andrew:         Yeah, so we’re gonna back into it, but doesn’t hurt to lead with this is an absolutely hilarious parody flyer-

Thomas:         [Laughs]

Andrew:         -that Stanford law student 3L, graduating law student Nick Wallace created that said, “The Stanford Federalist Society presents the Originalist Case for Inciting Insurrection.” 

Thomas:         [Laughs]

Andrew:         To be held Wednesday, January 6th from 12:45 pm to 2:00 pm, and that (quote) “Riot information will be emailed the morning of the event.”

Thomas:         [Laughs] You’d better get to the Grubhub coupon!  [Laughs]

Andrew:         [Laughing] Yeah, that’s right!

Thomas:         But wait, there’s more Andrew! 

Andrew:         [Laughs] It says “The first thirty students to RSVP will receive a $10 Grubhub coupon to be used on the day of the event.” 

Thomas:         [Laughing] Aw, man!

Andrew:         Then there’s an asterisk, but look.

Thomas:         It’s funny.

Andrew:         It is funny.

Thomas:         It’s really funny! [Laughs]

Andrew:         And it reminded me of a less funny but still obviously parodical graphic and meme that made its way around about a year ago this time that was like the antifa barbeque-

Thomas:         Yeah!  [Laughs] Exactly.

Andrew:         -and child face painting thing. 

Thomas:         [Laughing] Child face painting?

Andrew:         Yeah, right. 

Thomas:         That’s good!  Funny!

Andrew:         Yeah, that’s reasonably funny.  It was like yeah, show up, we’re gonna teach you how to burn government buildings and there’ll be a face painting tent for the kids.  Okay.  I think we’re both very plainly on the side of let people parody as terms of political free speech.  Shocker, the extreme right wing is absolutely not on board with your right to make fun of the Federalist Society.  We’re gonna get all the way through that.

Thomas:         Do we need to teach the Federalist Society about the 1st Amendment?  Isn’t that their whole thing?

Andrew:         We do!  We do.

Thomas:         Yeah, okay.

Andrew:         Yeah, because-

Thomas:         They’re pretty into those amendments, I thought?

Andrew:         Yeah, because weirdly, despite the fact that you know, all of these individuals involved will have “Proud 1A Defender” on their Twitter profiles-

Thomas:         [Sighs]

Andrew:         -they mean that, and I want to be very, very clear about this.  They mean that only when they’re talking about protecting your right to say racist things, okay?  And lest you think I’m being hyperbolic in that, I want us to time travel back to the 1970s for just a minute. 

Pre-1970 college campuses were basically places for white men, with the exception of historically women’s colleges largely in Massachusetts which were places for white women. 

Thomas:         Hmm.

Andrew:         We’ve talked about it – this question has come up.  We’ve talked about law school; we just answered a Q&A question on how few women there are in the law.  It’s still two to one men in 2021.  You know, this is, again, on a lawyer timeline 50 years ago is still reasonably recent history.  In the 1970s was when colleges started significantly increasing and recruiting minority applicants, women and members of racial minorities.  Shocker, as colleges were reaching out to women and minority students, and I’ll include the link to this in the show notes, (quote) “as a result of expanded recruiting efforts … [i]ncidents of racist, homophobic, and sexist harassment [at colleges] also increased.”

So, what colleges began to do to respond to this threat on campuses – by the way this is something about which I have changed my mind 100% in the course of doing this show.

Thomas:         Hmm.

Andrew:         In the course of actually looking at the laws, is they crafted college campus speech codes.  Those speech codes, the first one crafted by the University of Wisconsin, prohibited offensive or intolerant speech directed at individuals and groups on the basis of their race, color, religion, ethnicity, disability, sex, age, sexual orientation, and then later gender identity.  I’m gonna explicitly talk about the one at Stanford, because you know, this Federalist Society case is also a Stanford case.

In the 1980s Stanford’s speech code prohibited (quote) “discriminatory intimidation by threats of violence.”

Thomas:         Sure.

Andrew:         That’s a separate crime, and also includes “personal vilification of students on the basis of their sex, race, color, handicap, religion, sexual orientation, or national and ethnic origin.”  That’s the only part of the speech code that doesn’t prohibit an explicit crime.  You would say what counts as personal vilification?  Personal vilification was defined in the speech code as speech that A) is intended to insult or stigmatize an individual or small number of individuals on the basis of their characteristics (sex, race, color, blah blah blah) and B) is directed – is addressed directly to the individual or individuals to whom it insults or stigmatizes and C) makes the use of insulting or fighting words or nonverbal symbols.

That’s it.  Think about the things that that does not prevent.  That does not prevent student A from telling a gross racist joke to student B, so long as it’s two white kids telling those student jokes.

Thomas:         Wow.

Andrew:         It does not prevent student A from developing and discussing in a class, I mean The Bell Curve hadn’t been written yet, but yeah, if you wanted to express a gross racist wrong opinion, if you wanted to say, you know, “I think that there is white genocide going on in the United States right now,” and say white nationalist stuff in your class, that is not addressed directly to the individual or individuals to whom that – so, this is truly as minor-

Thomas:         A bare minimum?

Andrew:         Yeah.  And look, the reason for that – we have talked about this before, we have talked about Mari Matsuda’s groundbreaking work, Words that Wound.  The reason is as you are attempting to get to a critical mass of minority students on a college campus you don’t go from 0% to wherever that is, 10%, 15%, whatever, overnight.  Somebody has got to be the first African American student on campus, or the first two or the first three.  That’s the time-

Thomas:         Historically that’s been a tough thing to do.  [Laughs]

Andrew:         Yeah!  Real tough in every field.  And so to say “hey maybe on a campus that’s 98% white you shouldn’t find the handful of Black people and stand in front of them and say insulting things on the basis of their race.”  That’s literally all this speech code says.  As a result of this, and as a result of the free market inaction, there were approximately 75 universities with speech codes by 1990.  That went to 300 by 1991.  Basically everywhere.  This became the best practice for secondary, post-secondary college education.  Everybody adopted them. 

This idea that you could now no longer directly insult to their face minority members led Republicans to freak the hell out.  Republican Bill Leonard of California, State Senator, wrote what is today called “The Leonard Law” in 1992.  It is § 94367 if the California Education Code.  It says “No private postsecondary educational institution shall make or enforce a rule subjecting a student to disciplinary sanctions solely on the bas[e] of conduct [of] speech or other communication that, when engaged in outside the campus or facility of a private postsecondary institution, is protected from government restriction by the First Amendment” or by Section 2, Article 1 of the California Constitution, which is California’s 1st Amendment.  Then creates a right of action in which you can get your attorney’s fees if a school violates those provisions.

Immediately upon passage of this Leonard Law a group of individuals led by Robert Corry, I think was a student at Stanford, but I don’t know and the reason that I don’t know is because what we have is a trial court’s – a State trial court’s order on a preliminary injunction from 30 years ago.  You know, this is really hard to find stuff.  It’s not available on Westlaw.  [Laughs]

But in any event, the case was called Corry v. Stanford, they moved for a preliminary injunction and the Court granted it.  The Court’s reason – so preventing Stanford from enforcing its speech code now that they’d passed the Leonard Law.  The reason was that the speech code prohibits not just the kind of speech that is prohibited by fighting, by the Supreme Court’s Fighting Words doctrine-

Thomas:         Mm-hmm.

Andrew:         Which is likely to lead to imminent lawless action, or the way this Court put it “will not only cause people to react violently, but also cause them to feel insulted or stigmatized … The Speech Code also punishes words that ‘are commonly understood to convey’ hatred and contempt on the basis of race, religion, etc.  Clearly, this focuses upon the content of the words. All that is required under the Speech Code is that the words convey a message of hatred and contempt, not that they will likely cause an imminent breach of the peace.  By proscribing [those] words … [the] Speech Code fails to meet the” (very narrow) “‘fighting words’ standard as set forth,” and the principal case from this is Chaplinsky v. New Hampshire, from the Supreme Court.

That’s what the Court said.  Now that we’re treating speech inside a college campus exactly identical to speech on the street, the standard is incredibly narrow and none of the considerations that you might think would come into play on a college campus would come into play here, and we cannot prohibit you from saying hateful racist stuff unless that hateful racist stuff is like, you know, you’re screaming it an inch away from someone’s face and therefore likely to meet the fighting words standard.  But yeah, you want to organize a bit neo-Nazi parade?  Great, go for it. 

Thomas:         And this isn’t just like in the – I know we’ve talked in previous college cases before, the public square.  If something’s like the quad or whatever, it’s not just that?  We’re talking…

Andrew:         We’re talking in California, because of that particular Leonard Law.

Thomas:         Hmm.

Andrew:         It is a college cannot discipline a student for engaging in speech that they could engage in if they were not on the college campus. 

Thomas:         Wow.

Andrew:         That’s the test.  Would this otherwise be protected speech in a different context?

Thomas:         Jeez.

Andrew:         Yeah.  That’s – by the way-

Thomas:         It seems like a tough way to run a school.

Andrew:         Yeah!

Thomas:         I mean, what things work like that?  Schools don’t work that way; your job doesn’t work that way.  That’s not how anything works.

Andrew:         Correct.

Thomas:         Did this start with a good place?  Was this out of the like liberal free speech movement?

Andrew:         Nope.  This was directly as a result, 1992-

Thomas:         Oh, okay.

Andrew:         This was a direct result to college campus free speech codes.

Thomas:         Wow.

Andrew:         That’s why they passed the law to say colleges in California can’t have them anymore.  They cannot have a code of conduct that prohibits certain kind of speech for the benefit of an educational institution, even if it is of the sort that I described previously, of Stanford’s.

Thomas:         That’s quite – is that not quite bizarre?

Andrew:         Yeah.

Thomas:         That seems quite bizarre.

Andrew:         But okay, you’re thinking alright, well what that means is those Republicans are diehard 1st Amendment free speechers, right?  You get to do, you get to say on campus anything that you could say off campus.

[39:30.2] [Commercial]


Andrew:         So now [Laughs] let’s fast forward to 2021 from 1994 and perhaps revisit Nick Wallace’s parody flyer, which we read the first part of this.  By the way, this email was sent – this was sent as an email on the internal Stanford law student listserv.

Thomas:         Hmm.

Andrew:         It’s like couple hundred people who are law students, professors, have access to this.  That’s it.  This is basically the equivalent of posting it in the campus quad.  The fake flyer was sent around on January 25th, three weeks after the Capitol insurrection.  No possible danger that anybody thinking about this for a tenth of a second could have thought that, you know, this was a real event.  But okay, you’re reading, you’re not carefully, you miss the “riot information will be emailed.”

Thomas:         [Laughs]

Andrew:         You miss the Grubhub coupon.  Here’s the text, this is the full text.  I’m gonna read this because it’s delightful: “Please join the Stanford Federalist Society as we welcome Senator Joshua Hawley and Texas Attorney General Ken Paxton to discuss violent insurrection.  Violent insurrection, also known as doing a coup, is a classical system of installing a government.  Although widely believed to conflict in every way with the rule of law, violent insurrection can be an effective approach to upholding the principle of limited government.  Senator Hawley will argue that the ends justify the means.  Attorney General Paxton will explain that when the Supreme Court refuses to exercise its Article III authority to overturn the results of a free and fair election, calling on a violent mob to storm the Capitol represents an appropriate alternative remedy.”

Thomas:         Is it satire?  [Laughs]

Andrew:         [Laughs] That lead somebody who’s name has been redacted to protect this person and others from Stanford’s Federalist Society, to file a one and a half page complaint with the University accusing this student, Nicholas N. Wallace, who by the way wants his name to be public.  He’s communicated with Mark Stern from Slate, that’s why we’re using his name and not the cowards who wrote this. 

It says, “On January 25, 2021, at 8:38 a.m., Nicholas Wallace sent an email to Stanford Law School’s ‘Law Talk’ email list-serv, where he impersonated the Stanford Federalist Society, a student group, through a false event flyer and attributed false and defamatory beliefs to persons he listed on the event flyer.” 

Thomas:         [Laughs]

Andrew:         Then it describes the situation, it says he “clearly impersonated” by, you know, labeling it as being the Stanford Federalist Society presents, and used their logo, and this is easily recognizable to other students.

Thomas:         Yeah.

Andrew:         Then it complains at the end, “other student groups have asked to cancel joint events planned with the Federalist Society as a result of the controversy created by this email.”

Thomas:         Oh.

Andrew:         Good.  “And we, as officers of the organization, feel that our individual reputations have been harmed.”  So, Federalist Society, stalwart defenders of freedom of speech, whined about a parody email, it caused Stanford to not only open up disciplinary proceedings against Nicholas Wallace, but that placed a hold on his graduation.  This is in the middle of finals week, and I can tell you, look, even as a 3L your finals are hard!  You care about cramming for finals and, you know, the difference between getting good grades, are you graduating with honors?  Look, it is 100% clear how this materially interferes with a graduating students’ expectations from the university.  You can’t register to take the bar if-

Thomas:         Yeah.

Andrew:         -they’ve got a hold on your diploma, all sorts of things.  Now the good news is thanks only to Mark Joseph Stern of Slate Magazine who broke the story yesterday, as we are recording this today, he was contacted by a Stanford’s spokesperson who says that the school has dropped the investigation and then Nick Wallace sent around an email to the entire listserv that says “I just wanted to let you know that the Office of Community Standards has dropped the complaint against me and the degree conferral hold has been lifted from my account.  Thank you for your support, your personal messages and satirical law talk emails and so many other ways you’ve shown what a wonderful community we have over here.  I hope this is not the end of the conversation we have been having.  With that in mind, I hope to work with Stanford in the little time that I have left to make sure no other student is subjected to an abusive process in this way again.”

Thomas:         Yeah.

Andrew:         “And to develop better protections for its students’ freedom of expression.  Thanks for your support.  P.S. this email is not satire.” 

Thomas:         [Laughs]

Andrew:         Again, let’s explain the significance of that.  Unquestionably under the Leonard Law Nicholas Wallace had a knock-dead, just a 100% likelihood of success of suing Stanford.

Thomas:         Yeah.

Andrew:         Could have very easily done that.

Thomas:         Well, you know what’s very unfortunate though, Andrew, is there aren’t any lawyers at this law school to be able to, you know-

Andrew:         [Laughs]

Thomas:         To evaluate the law.  This poor law school!  How would they know the law?  I don’t understand how the law school’s supposed to know that this is obviously free speech that’s legal in every context?

Andrew:         Yeah.

Thomas:         Ever.  How would they know?  This poor law school.  Oh wait!  [Yelling] They’re a law school!  God!  I’ve seen all the tweets, it’s good.  There’s been a lot of response, I think Lawrence Tribe was like “hey, uh… [Laughs] isn’t this a law school?”  Lawrence Tribe said “Mocking an ideologically based group can’t be made a basis for denying academic privileges in any open society worthy of respect.  If accurate, this report shows Stanford Law School to be unworthy of treatment as an academic institution.”  [Laughs]

Andrew:         [Laughs]

Thomas:         Yeah, okay.  Student complaint.  You should investigate complaints.

Andrew:         Yeah.

Thomas:         The school should’ve been like oh, okay, well, we take complaints seriously, want to make sure everything’s above board here, nobody’s harassing anybody or anything bad.  Then you look at it and be like oh, well okay.  Dismissed.  Instant.

Andrew:         Yup.

Thomas:         You know, it should’ve been like a one-week process.  [Laughs]

Andrew:         Yup, yup.

Thomas:         God!

Andrew:         That is exactly right, and again, let’s be clear about this, this was sent the same day, January 25th.  Yeah, it does not take 4 months-

Thomas:         [Laughing] Yeah.

Andrew:         -to look at a flyer that very clearly meets the 1st Amendment standards for parody.  We have talked about that.  That is the Falwell v. Flynt case.  That is a parody ad for Campari liqueur that uses the logo of Campari, but it’s totally obvious that nobody reading it would think Jerry Falwell really gave an interview to Hustler Magazine in which he intimated that the first time he had sexual intercourse was with his mom in the outhouse after they’d kicked out the goat.  Just like nobody could look at this and think that the Stanford Federalist Society wanted to time travel to give out cookies so you could- [Sighs]

Thomas:         I mean like, or even if they did, yeah that kinda is like [Laughs] but anyway…

Andrew:         Yeah.  So, let’s bring this full circle.

Thomas:         Well, here’s what I want to say though, if you don’t mind.  I thought you were gonna take us through further legal history that would lead us to not that current state of th- are you telling me that even today in California school at universities, you can say anything that is protected outside of universities and never face discipline from the university for it as long as it wouldn’t be illegal speech?

Andrew:         So, I will read you the few exceptions that are contained within the Leonard Law.  I already read you (A).  (B) is what gives you the right to sue and says that you can get attorney’s fees.  (C) says “this does not apply to an institution that is controlled by a religious organization,” because of course it doesn’t.

Thomas:         Wow, yeah.  What do you know?

Andrew:         “To the extent that the application of this section would not be consistent with the religious tenants of the organization.”  Again, remember-

Thomas:         Yeah.

Andrew:         -when your right-wing Uncle Frank is talking about how much liberals hate the 1st Amendment, religious right-wing organizations went to the legislature and said “yeah, we want the 1st Amendment to apply everywhere, I mean not to us, of course.”

Thomas:         Yeah.

Andrew:         And that the worst, most restrictive, most horrendous speech codes anywhere are those imposed by right wing evangelical organizations.  You can be expelled from Liberty University for watching a PG-13 movie.

Thomas:         Isn’t it pretty ironic that this very same amendment that protects religion from the State also they’re like “don’t count that one against us, though, we want to violate that on other people.”

Andrew:         Yup.  Yup, exactly right.

Thomas:         Isn’t that weird?

Andrew:         So, doesn’t apply to religious schools, that’s subsection (C), subsection (D) does not authorize the prior restraint of student speech.  That is also roughly consistent with the 1st Amendment, we’ve talked about that before.  Generally, in free speech cases you get the right to say your thing and then, you know, if it’s defamatory you have damages or whatever, only in very, very limited cases involving unquestionable national security, the inverse of the Pentagon Papers cases, or some other incredible edge cases, can you get injunctive relief preventing somebody from publishing something.

Thomas:         Mm-hmm.

Andrew:         Okay, says does not authorize prior restraint.  Subsection (E), this is I think where you’re going but this is how narrow it is, is (E) and (F).  “(E), this section does not prohibit the imposition of discipline for harassment, threats, or intimidation” (comma) “unless constitutionally protected.” 

Thomas:         Isn’t that an important comma?

Andrew:         Yeah.

Thomas:         Because a lot of harassment is constitutionally protected-

Andrew:         Yeah!

Thomas:         -that you wouldn’t want on a coll- a student perpetrating on another student at your campus.  I’m just shocked that that’s-

Andrew:         Correct.

Thomas:         You know? 

Andrew:         Yup.

Thomas:         Okay, I just wanted to say, I do think free speech is really important on universities, contrary to what the typical SJW stereotype is.  I do think it’s really important, but I think there are some pretty no-nonsense obvious exceptions that I’m kind of surprised we don’t have.  And I did want to say, I was trying to imagine the alternative here.  Like what if this is a flyer that makes fun of a bunch of typical SJW stuff?  Oh trigger, we’ll have the trigger warnings – which, by the way, that happens all the time.  [Chuckles] People make those flyers all the time.

Andrew:         Yeah!

Thomas:         You know, as long as they aren’t targeting anyone by their race or these other, other characteristics that I think are protected by law, you know, yeah.  It’s satire.  It wouldn’t be satire I would agree with, but that’s protected.

Andrew:         That’s right!

Thomas:         I would never want an administration to be withholding a diploma because of satirical flyer that probably wouldn’t be funny because the right wing can’t meme.

Andrew:         Yeah.  Well, 100% think about it.  Before going through this deep dive we talked about that antifa 4th of July barbeque.  It is 100%, even though could you craft an argument of how you’re probably punching down with that because all conservative humor is pretty much punching down?  You could.  But again, I wouldn’t want a student to be disciplined for creating or sending that.  We said that at the outset.  If the idea is you protect free speech and you want to express the belief – and what that does is expresses the belief that antifa is a hypocritical organization that says they’re fighting fascism but they promote and condone violence during protests, there are a million things wrong with that idea, but free speech says, and I think you and I would defend, particularly on a college campus, the right to start that discussion no matter how crudely you’re starting that discussion.

Thomas:         Yeah, and the key is he’s mocking a group that’s ideological.  As Lawrence Tribe said, I mean it would be one thing if he took like the student who was the president of the campus Federalist Society-

Andrew:         Yeah.

Thomas:         -and was mocking that person or even joking about characteristics about them, that would be a different story.  I would – I still don’t know based on what you’ve told me, I’m still very unclear as to how much you can get away with on campuses, but if I were in charge I’d be like yeah, that’s not cool even if they are a Federalist Society dweeb.  [Laughs]

Andrew:         Yeah.  [Laughs]

Thomas:         Can’t do that!  But you can make fun of the society itself, come on!

Andrew:         The society itself, yeah, absolutely.  If making fun of the Federalist Society is wrong, I don’t want to be right.

Thomas:         [Laughs] [Sighs]

Andrew:         I want to say for completeness because we got a funny – subsection (F) also says that – this is the last one – that educational institutions may adopt rules and regulations to prevent hate violence as narrowly defined.

Thomas:         Oh, okay.

Andrew:         (Quote) “So long as the rules and regulations conform to standards established by the 1st Amendment.”

Thomas:         Oh.  It always comes back to that!  Every single time-

Andrew:         It does.

Thomas:         I think oh!  There’s a carveout there.  Oh, no, it’s still-

Andrew:         Nope.

Thomas:         Yeah.  They pull it back.

Andrew:         If you’re asking in California can you create a separate set of rules restricting the subset of free speech that you would otherwise expect not on a college environment?  The answer is no. 

Thomas:         Quite surprised by that!  Okay! 

Andrew:         So, there you go.

[54:55.4] [Patron Shout Outs]

T3BE Question

[55:58.8] [Segment Intro]

Thomas:         And now it’s time for T3BE, still going with the coin although at this point he coin may tap out.

Andrew:         [Laughs]

Thomas:         [Laughs] I think the coin may have mathematically failed by now, we’ll see.

Andrew:         Alright, Thomas.  A company contracted with a builder to construct a new corporate headquarters for a fixed price of $100 million.  At the time of the contract, structural steel was widely available and was included in the contract-

Thomas:         Ah.

Andrew:         -as a $6 million item.  Before work began on the project, tornado damage shut down the production facility of the biggest structural steel supplier in the country, and the price of structural steel increased by 20% as a result.  

Thomas:         Huh.

Andrew:         The builder informed the company of the steel price increase, and the parties then orally agreed to increase the project price to $101 million.  

Thomas:         Hmm.

Andrew:         The builder proceeded with construction and delivered the project on time.  The company paid the builder $100 million but refused to pay the additional million.  If the builder sues the company for $1 million, is the builder likely to prevail?  (A) No, because the modification was never reduced to a writing signed by the party to be charged. 

Thomas:         Mm-hmm.

Andrew:         (B) No, because there was no consideration for the modification of the contract. 

Thomas:         Okay.

Andrew:         (C) Yes, because the company’s promise was supported by consideration, or (D) Yes, because the modification was fair and equitable in view of the unanticipated increase in the price of structural steel.

Thomas:         Ooh, man.  This is a tough one!  This is statute of frauds or whatever?  It’s always a weirdly named thing for when stuff can be oral contracts or not, I think that’s what it is.  Anyway, can you orally agree to increase a price in a major thingy like this?  Wow.  Tricky question. 

Okay, right off the bat I guess my instincts are it’s pretty messed up to agree “yeah, $101 million” and then stiff the guy who still finished on time, and they orally agreed kind of before work began.  I don’t know if that matters, but you know, feels pretty messed up, so you would hope that the builder could prevail.  I dunno, morally.  [Laughs] But does the law line up with that?

A no because the modification was never reduced to a writing signed by the party to be charged.  So, that’s just basically like was the oral agreement okay or did you need to write this out?  That’s tricky.  Based on my limited knowledge it’s kind of weird the things that you’re allowed to do in oral contract versus not.  It’s actually shocking the extent to which you’re allowed to do oral contract sometimes, but it’s tricky and I don’t remember which things that is, and then there’s some weird exceptions where you can’t, and I’m not a law student so I haven’t memorized those, I don’t remember.

B is an interesting one, it could be an attractive distractor.  It says no because there was no consideration for the modification of the contract, which is a contract-ey thing.  [Laughs] Where it’s like when you sign a contract there has to be consideration, but this is modifying a contract.  I don’t know why you would need another round of consideration, but maybe that’s how it works?

C yes because the company’s promise was supported by consideration.  That’s a weird one.  D yes because the modification was fair and equitable in view of the unanticipated increase in the price of structural steel.  Now D is a weird one because this is one that I think historically I would have found pretty attractive, but now I’m not sure I do because D kinda shortcuts all the contract issues.  You know?  D says well, what’s the spirit of the thing?  What’s the actual fairness of the price?  That would almost sidestep all the “did you need to write it down?  Did you need to agree orally?”  Now it’s still possible that like D is a step in the chain that you would evaluate when the parties can’t agree kind of thing and maybe it could be right?  But I’m actually leaning away from D, even though it could be my second-best answer, we’ll see.

Boy, I could really see an argument for several of the answers.  A would be no because the modification was never reduced to a writing – this is weird language, but I dunno, maybe that’s law talk, I’m not a law-talking guy – signed by the party to be charged.  I’m not in love with that language, it’s kind of weird.  If it’s a modification you would think it would just be we’re both agreeing to modify the contract so we both sign it.  That wording is kinda turning me off.  The modification was never reduced to a writing signed by the party to be charged.  If you’re just modifying a contract, both people need to sign it, I think.  [Groans] I could be reading too much into that, though.  I’m not in love with that language.  The argument for A would be forget everything I just said about the weird language and you just need to write it down.

B no because there was no consideration for the modification – the consideration thing is actually interesting.  I think if you already have a contract and you’re modifying it, do you need consideration again?  Or is it taking the form of a new contract on top of this one or something?  Augh, I don’t know.

C yes because the company’s promise was supported by consideration.  I think I don’t like C.  So, D has the most plausible language but that would be under the theory that the only reason you can orally modify this contract is if the modification is fair and equitable, but otherwise you’d have to write it down which seems – that just doesn’t seem right to me.  Like I said earlier, that seems to be sidestepping the question.  God, this is the weirdest thing in the world.  I could see an argument for all of these, and I don’t like A, I hate the writing of A.

I’m almost weirdly between B and C now.  This is – oh my god, I’m lost!  B, no because there was no consideration.  Do you need consideration to modify a contract?  I know you need consideration in a contract.  Or C, yes because the company’s promise was supported by consideration.  You know what?  This is freaking weird; I think I’m going with C!  [Laughs] You’re gonna tell me I’ve lost my mind, that’s okay, I just don’t like any of the answers.  I think I’m between A and B and C and D.  [Laughs]

Andrew:         [Laughs] Between all four of them? 

Thomas:         Yeah, look, we all have a bad day, I can’t figure this out.  I think I’m between B and C, weirdly, I’m gonna see if the coin agrees with me, we’ll take it as a good sign if it does.  The coin agrees with me.  Okay, so the coin and I, again, choose C.  Second choice answer was B.  I have zero confidence in this.  I’m looking forward to the audience response so make sure to play along, everybody.

Andrew:         Alright, and if you wanna play along with Thomas, you know how to do that.  Just share out this episode on social media, include the hashtag #T3BE; include your guess, your reasons therefore.  We will pick a winner and shower that winner with never ending fame and fortune!  Fame and fortune not guaranteed.

Thomas:         Alright, that’s our show.  Thanks so much for listening!  Toon in for that very important deep dive on some Christian scams.  You’re gonna want to hear it, you’re gonna want to share it.  Tune in on Tuesday, patrons Sunday night.  We’ll see you then!

Andrew:         Buh-bye!

[Show Outro]

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