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0:25

broke a mirror in my house on this bus to get

0:27

seven years

0:28

bad luck but my lawyer thinks he can get

0:30

me five.

0:41

Oh. Look at me.

0:42

I'm a lawyer. I'm so good at we're fusing

0:45

get to and get to know, but that wasn't

0:47

worse.

0:47

Right? Your

0:51

Honor, Ms. Russell, has failed to legal, legal,

0:53

and she's legally legal. He asked the

0:55

court to legal, legal legal.

0:59

Don't worry. There's nothing nearly go about any of

1:01

this. Are you sure? Of course, this

1:03

is America. It's a free country. Don't

1:05

you know them? I didn't know it was that free.

1:09

So do you

1:09

think you talked about the trial without talking

1:11

about what happened after trial?

1:17

Welcome to opening arguments, a podcast

1:20

that pairs a comedian with a real life lawyer.

1:22

This podcast is sponsored by the law offices

1:24

of P. Andrew Torres, LLC for entertainment

1:27

purposes. He's not intended as legal at

1:29

advice and does not form an attorney client

1:31

relationship. Don't take legal

1:33

advice from a podcast.

1:40

Hello,

1:40

and welcome to opening arguments. This is episode

1:42

six hundred and fifty. What a no.

1:45

I'm

1:45

Thomas. That's Andrew Torres, Esquire,

1:48

lawyer extraordinaire. How are you doing, Andrew?

1:50

I am fantastic, Thomas. How are you?

1:52

I'm great. I'm feeling like, I don't know.

1:54

And about one episode, I feel like

1:56

there's gonna be new intro quotes. Yeah. Take my

1:59

finger to the wind. Love it. And

2:01

looking forward to that. As we've already

2:03

announced our new release schedule, seems

2:06

like those new intro quotes are now gonna come

2:08

twice as often, which I think is good. Yeah.

2:10

I'm I'm a fan of that. There's so many we never get

2:12

to put in. So that's another benefit

2:14

of that. The benefits never stop.

2:17

and the other benefit is us working twice

2:19

as hard. Right. Yeah. This is not

2:21

great. You're not having a

2:23

baby in a month, are you? No.

2:25

I did. Okay. Yeah. Okay. So I

2:27

asked that. So literally, both households

2:29

are are totally full. Yeah. Totally. Nothing

2:31

happened in here. Just had to know. just tumble

2:34

weeds, you know. I just opened it.

2:36

I just Open my doors.

2:38

Nothing here. Nothing to do. No

2:40

reason I can't take down twice as much works. So

2:42

it's great. It's where everybody wins. Alright. Let's

2:44

get to today's episode. There's never

2:46

a preceding home. I'm excited to

2:48

talk about section two thirty again in

2:50

the news. On the q and a last

2:53

week, on the YouTube q and a, we had a few

2:55

questions about the Eli Lilly thing,

2:57

which people may have seen. During the

2:59

two minutes, I guess, you could buy your

3:01

fake Twitter check mark

3:03

the other week. Wow. roller coaster

3:05

on that Twitter. It's it's and it's a roller coaster

3:07

that has gone just straight into the

3:09

earth. Like, it's just barreling

3:11

down into the earth. I I've

3:13

never seen someone so quickly

3:15

disprove all of the mythology about

3:17

them so fast. I mean, it's incredible. Elon

3:20

Musk. He was built up as his genius CEO,

3:22

and he's like he wanted to go prove

3:24

to everybody that wasn't true. Like, he's like

3:27

told my beer hold my

3:29

bong, I guess. Let me prove that's entry.

3:31

So during that time when you could

3:34

buy a blue check mark for eight dollars,

3:36

which is the stupidest idea, anyone's ever

3:38

had. People were making fake accounts. It was

3:40

a lot of fun, funny stuff. And you

3:42

may have seen the meme shared around that

3:44

someone said, hey, they made a fake Eli Lilly

3:47

account, which is a pharmaceutical company,

3:49

and they tweeted that insulin

3:51

will now be free for everybody and the stock

3:53

tanked, and there's an accompanying graph

3:56

or the stock tank. I said this

3:58

on the q and a. I haven't had not

4:00

looked into it at all, but I have

4:02

a pretty good BS detector, Andrew, and I thought,

4:04

well, there's no way That can't be right. I mean, I mean,

4:07

I feel like the odds that there are

4:09

investors sophisticated enough to be

4:11

following the Twitter account and looking

4:13

for their news about

4:15

whether or not to invest or sell or

4:17

buy or whatever, but not sophisticated

4:20

enough to know that obviously this was a fake

4:22

account when during the time in which everybody

4:24

was making fake Twitter It seemed a

4:26

little fishy to me, but I hadn't

4:28

looked into it. I understand you've now

4:30

looked into it. So let's talk about that.

4:32

And let's also talk Hypothetically,

4:34

let's say it were a real thing and that did

4:36

happen, would someone get in trouble

4:38

for that? I believe section two thirty

4:40

is the magic words that always come

4:42

up when we're talking about cases like this.

4:44

You've got that exactly right

4:47

in every respect a apropos

4:49

of nothing. I can tell you that

4:51

as we record this, Tesla stock

4:53

is down to a hundred and eighty three dollars

4:55

a share. Wow. Someone must have

4:57

made a fake account and tweeted, Tesla's will

4:59

now be free. Eli,

5:02

Lily sixty nine or, you know,

5:04

whoever it was, tweeted

5:06

out. Insulin is free now, and

5:09

that was initially reported as

5:11

costing Eli Lilly the actual

5:13

company a market cap of several

5:15

million dollars. There's a there's a four percent

5:17

drop in the stock price. They had

5:20

lost a major lawsuit. I mean, you know

5:22

-- Yeah. There's other things in the

5:24

news that make way more sense to account for

5:26

it than someone's fake tweet that

5:28

you would've had to be following that

5:30

fake account already. to

5:32

see it. It's

5:33

just none of it made any sense to me. Yeah.

5:35

At the announcement from the Eli

5:37

Lilly sixty nine account, That's

5:40

not the real. That's it. Sixty nine four twenty,

5:42

obviously. Right. Had fifteen

5:44

hundred retweets and ten

5:46

thousand likes before it was taken

5:48

down. So, you know, no

5:50

OA tweet has gotten ten thousand

5:53

likes. I think one of our election

5:55

retweets have like six or

5:57

seven hundred retweets. But,

5:59

you know, look,

5:59

so it would be a big news for

6:02

opening arguments. This is

6:04

not a ton of penetration

6:07

into the market. And so it

6:09

seems highly unlikely

6:12

that that is the solitary

6:14

cause of a four percent drop in

6:16

the share price. Someone's in investing

6:18

in a individual pharmaceutical

6:21

company specifically but

6:23

wouldn't get that that's either fake

6:26

company, wouldn't just do a thing

6:28

that's horrible for business instant. Well, okay,

6:30

Twitter. Never mind. Yeah. And

6:32

and the actual Eli

6:35

Lilly account is at

6:37

lily pad, LILLYPAD

6:40

which is almost as dumb as

6:42

Eli Lilly is sixty nine. So

6:44

there are reasons to believe

6:46

it may have had an effect on the stock price.

6:48

almost certainly not billions of dollars.

6:51

The question is, could somebody

6:53

maintain a cause of action

6:55

against Eli Lilly sixty

6:58

nine or, I guess, Twitter

7:00

in connection with announcing this

7:02

obviously false thing that

7:05

caused real harm. And

7:07

the answer to that is absolutely not.

7:10

Wow. Okay. Absolutely not. I

7:12

feel very, very confident on that for

7:14

a couple of reasons. and we're gonna

7:16

go through in light of

7:19

what forty seven USC section

7:21

two thirty says. This is section two

7:23

thirty of the telecommunications decency

7:25

act, but also because a case

7:27

that we didn't discuss when

7:29

we did our deep dive on section

7:31

two thirty, that was episode

7:34

three ninety. I know we should have done it for two

7:36

thirty, but I don't think Donald Trump

7:38

was like, have had it in his sights yet?

7:40

We could four sixty. We couldn't 690

7:43

man. I know. Yep. That was episode three

7:46

ninety. So you can go back, listen to

7:48

that. We're not gonna cover the same ground other

7:50

than I'm gonna repeat the statutory protections.

7:53

But one of the cases, there was a there was

7:55

a case a New York state

7:57

decision So

7:59

New York Supreme Court, they're now the only

8:01

state remaining that uses supreme

8:04

court to describe their trial courts. Now that

8:06

Maryland question number one passed. Yeah.

8:08

They need one of those question number ones.

8:10

They definitely do need one of those.

8:12

So there was a case called Stratton

8:14

Oakmont out of New York. And

8:16

basically, it involved a

8:18

carrier like an AOL that

8:20

had message boards. because, again, remember,

8:22

this nineteen ninety five for me. Get

8:24

my disc man again. I just had it out. I

8:26

know. But the last episode, dusting

8:29

it off. Remember that dusting it. Wait. Do you have

8:31

any experience with this? because you're you're

8:33

older. Did you

8:33

the pleasures of being on, like, the school

8:36

bus for sports or field trips

8:38

and you got that CD

8:40

collection, you know, the the the big

8:42

folio thing that folds out, it's got a it's

8:44

weighed four hundred pounds. Absolute. That was

8:46

in my car. Is it best? So, yeah,

8:48

a good time. Yeah.

8:50

Absolutely. I still have my that.

8:52

Hang on. And I'll just I don't even use

8:54

it, but, like, I'll see it and I'll just the

8:56

joy it brings of, like, oh, yeah. I remember

8:58

that, stuck in a shitty little

9:00

town, and my only escape was

9:02

popping in a CD of nineties

9:04

music that Andrew would hate. Yep. There

9:06

you go. So I'll be doing

9:08

that. I'm not listening. I'll understand. Yeah.

9:10

But nineteen

9:10

ninety five. Here we are. Yeah. Essentially,

9:13

what happened there was somebody

9:15

left up an anonymous message

9:17

on a message board that was

9:19

defamatory, and the

9:22

plaintiff who was harmed thereby

9:24

sued the Internet provider for

9:26

not taking it down. Unlike

9:29

other courts who were

9:31

sort of left to decide how

9:34

do you treat an Internet service

9:36

provider. Right? do you treat them

9:38

like a newspaper when a newspaper

9:41

publishes an article that

9:43

goes through a review or even when they're

9:45

publishing an op ed? It goes through a

9:47

review process, it is subject to

9:49

journalistic standards, and it is

9:51

subject to being edited, rightly

9:53

all of that stuff. If I

9:55

publish something defamatory in The New York

9:57

Times, you consume me. You consume

9:59

The New York Times. They are

10:01

treated as the speaker. On the

10:03

other hand, if I write a book of

10:05

defamatory crap, and

10:07

do you remember, like, bookstores? Right?

10:09

Barnes and Noble, no idea. Okay.

10:11

It's where I bought my CDs sometime.

10:14

There you go. Remember bookstores? Yeah. And a

10:16

bookstore sells my book.

10:18

Yeah. They're not treated as the Right.

10:20

Or if, like, someone writes,

10:22

like, call Thomas for a good

10:24

time on a bathroom stall. Can I sue the

10:26

bathroom stall? Yeah. You cannot sue

10:28

the store or the bathroom or But definitely

10:30

call me for a good time if you want. Yeah. I

10:32

I do endorse this message.

10:34

Once a week, I called you for a

10:36

good time. So the

10:38

question was, do you treat

10:40

an Internet service provider as the

10:42

publisher or speaker -- Mhmm. --

10:44

of the stuff that they are?

10:46

Arguably, publisher. And typically,

10:49

like, pre internet, the dividing line in a

10:51

lot of these cases was really volume.

10:53

Yeah. The newspaper okay. They got some

10:55

editors. They got people who look over everything

10:57

you publish in the newspaper, but like a

10:59

bookstore come on. Like, they're not gonna

11:01

read the thousands of books

11:03

that they order every week before.

11:05

It's not fair. And that was essentially the

11:07

way the cases broke down. And

11:09

the Stratton Oakmont Court

11:11

in New York said, now we're gonna

11:13

trade you as the publisher

11:15

of the thing that you allow

11:17

people to post on your

11:19

website. And that

11:21

immediately led to

11:23

the confluence of events that

11:25

gave rise to the telecommunications decency act

11:27

of nineteen ninety six. Obviously,

11:30

porn on the Internet in

11:32

general, not just child abuse material,

11:34

but literally, like and then I

11:36

want little Johnny to see boobies,

11:38

was a massive issue as

11:40

well. And so there were confluence of all these

11:42

factors. But the business factor was

11:44

we just sell out bandwidth

11:46

to people. We we have

11:48

thousands tens of

11:50

thousands of users, we're not

11:52

publishing this, fix this.

11:54

And that led to the telecommunications decency

11:56

act of nineteen eighty six. there's sort of a

11:58

couple of things that you need to know that

12:00

remain kind of anachronistic. Again,

12:02

I'm trying not to overlap with what we said in three

12:04

ninety. The first is This

12:06

was before the AOL Time

12:08

Warner merger. And so

12:10

when you hear interactive

12:13

computer service, you should

12:15

be thinking AOL.

12:17

And the idea was

12:20

that your ISP, the

12:22

person that sold you

12:24

the internet would also be packaging

12:26

that content to you in

12:28

some way, which is what AOL

12:30

was doing at the time and what other

12:33

competing services we're doing. Now,

12:35

those jobs are mostly separate.

12:37

But the definition of

12:40

interactive computer service

12:42

is now codified

12:44

into law as basically

12:47

aggregating together your ISP

12:51

plus people who provide who are

12:53

defined in the statute as access

12:55

software providers. And those are defined

12:57

as a provider of software, including client

12:59

or server software or enabling

13:02

tools that do any one or more of the

13:04

following. A filter screen allow

13:06

or disallow content b,

13:08

pick, choose, analyze, or digest

13:10

content or c, transmit

13:12

received display forward cache,

13:14

search, subset organized, reorganized,

13:16

or translate content. So

13:19

all of those get lumped together. So

13:21

Twitter is an interactive

13:23

computer service under that definition. Facebook

13:25

is an interactive computer service under

13:27

that definition. But so is AT

13:29

and T? So is wherever

13:31

you get your Internet from. should

13:33

it be that, you know, it probably shouldn't. Right?

13:35

Like, this represents a snapshot in time.

13:37

And it's important that we know that as you're

13:40

thinking about the law that

13:42

has kind of grown up around section two

13:44

thirty. Mhmm. Section two thirty then gives

13:46

two different protections to

13:48

this agglomeration of tech companies.

13:51

The first are clarifying

13:53

that you are not the publisher or

13:55

speaker that is directly overturning

13:58

the Stratton Oakmont decision,

13:59

saying, hey, just because something is

14:02

up on your interactive computer

14:04

service, doesn't mean that you're the speaker,

14:06

you're treated like the bookstore. So

14:09

when Eli Lilly sixty nine

14:11

posts on Twitter, hey,

14:14

insulin is free now. Twitter is

14:16

not the speaker of that Twitter has

14:18

zero liability in connection

14:20

with that statement. I love all this

14:22

old time in computer language, by the way. If

14:24

I if I have my way, the intro to this

14:26

segment is gonna be Jurassic Park.

14:28

Well, that's You're right. I've seedy

14:30

rum. Right. Right?

14:34

Now, some folks have said, but what about the

14:36

fact that Twitter provided the

14:38

little check mark? Right? Doesn't that

14:40

seem like that is validating.

14:42

Right? It's saying, hey, we

14:44

did some kind of work to validate

14:46

this. And you would have to exclude the fact

14:48

that in the week beforehand, Twitter

14:50

said, no, we're gonna get rid of doing the work, and we're

14:52

just gonna allow you to buy it, which would be

14:54

a pretty good defense if you're Twitter. Yeah.

14:56

But there's also the second

14:58

half of the protection. So the first

15:00

half says, we don't treat you as the speaker.

15:02

The second half says that

15:04

no provider or user of an interactive

15:07

computer service shall be held

15:09

liable on account of, a, any

15:11

action voluntarily taken in good

15:13

faith to restrict access

15:15

to or availability of

15:17

material that the provider or user

15:19

considers to be. Obsidianude Lascivius

15:22

feel excessively violent, harassing

15:24

or otherwise objectionable whether

15:27

or not such material is constitutionally

15:30

protected. but opinion that. Mhmm. Or

15:32

b, any action taken to enable or

15:34

make available to Internet content

15:36

providers or others, the technical means to

15:38

restrict access to material described

15:40

Paragraph one I just described. This makes

15:42

sense. So it's like they don't wanna make it

15:44

such that if someone makes an effort

15:46

to filter their stuff a bit, that would

15:48

open them up to liability. and

15:51

therefore, disincentivize anyone for making

15:53

any effort. Is that correct? That's exactly

15:55

one hundred percent correct.

15:57

And that's why it includes that

15:59

language whether or not such material

16:01

is constitutionally protected. The

16:03

idea, the thought process here was,

16:05

hey, we wanna make sure that

16:07

little Johnny can't see boobies, and just

16:10

let little Johnny see boobies.

16:12

Come on. And

16:14

so, we want to incentivize AOL

16:17

to have a series of

16:19

filters that prevent you from seeing boobies,

16:21

and we don't want anybody to be able

16:23

to sue them in connection with that

16:25

decision if they are overly

16:28

broad in censoring

16:30

the amount of boobies you can see or whatever.

16:32

Right? That's why you had

16:34

that very broad language And again, most

16:36

of it is porn oriented. Obscene,

16:38

lewd, Lascivious, filthy. But

16:40

-- Go on. -- excessively violent,

16:42

harassing, or otherwise objectionable,

16:45

and clearly also and there's testimony

16:47

in the congressional record applies

16:49

to hate speech. We wanted

16:51

the definition of hate speech as you and I

16:53

have talked about since OA

16:55

episode one is

16:57

very very narrow. I can say,

16:59

hateful horror as we've seen

17:01

over the past six years, know, the

17:03

far right can say -- Yeah. -- hateful,

17:06

horrible, neo Nazi racist

17:09

crap. And unless it is

17:11

imminently likely to lead to the

17:13

incitement of actual violence, it

17:15

doesn't get restricted. Yeah. Because

17:18

we never wanna allow little Johnny to be

17:20

able to see boobies. But we do want

17:22

him to have the ability to be radicalized by

17:24

online Nazis as much as

17:26

possible. That's where our priorities are. Again,

17:28

section two thirty errors on the other

17:30

side groups that together and says, yeah, we

17:32

also want to make

17:34

sure that if a content provider

17:37

is restricting hate

17:39

speech, that that not be an argument

17:41

that's available to them. Right? That,

17:43

hey, It's my constitutional

17:45

right to think, you know, to rank the races

17:47

on A0L dot com. And no.

17:49

No. You know, it doesn't matter whether it is

17:51

or no liability will attach

17:54

to any provider who

17:56

voluntarily in good faith restricts

17:58

access to your hateful crap

18:00

out of an idea to

18:03

protect against material that

18:05

is harassing or

18:07

otherwise objectionable, whether or not

18:09

such material is institutionally protected.

18:11

So meant to be broadest

18:13

possible protections to encourage

18:15

self regulation and self

18:18

restriction in this area. And

18:20

when you read both of those in context,

18:22

it is very very clear that the

18:25

history, the broad history of

18:27

section two thirty decisions would

18:29

extend to even if there was an

18:31

argument that Twitter is itself speaking

18:33

when it puts the little check mark on

18:35

there, and you may have noticed that c

18:38

one says, no provider or publisher of

18:40

any interactive computer service

18:42

shall be treated as the publisher or speaker of any

18:44

information provided by

18:46

another information content provider. And

18:48

so you might you might raise the argument of, hey,

18:50

no, this is not another. Right? This is Twitter

18:53

putting a check mark on

18:55

Twitter So they're the same

18:58

information content provider. Doesn't

19:00

matter case law is super clear that that

19:02

another has been effectively read out

19:04

of the statute. It's been interpreted

19:06

broadly as including speech

19:09

engaged in by the

19:11

interactive computer service at

19:13

the time.

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opening. I know the

22:41

answer to this is gonna be now because it seems like thirty

22:43

just prevents any of this at all.

22:45

But I could see at least

22:47

rationally speaking an argument

22:50

okay. But in this instance,

22:52

Twitter was negligent in how

22:54

easy they made it

22:57

for anybody to

22:59

appear as an authority as an actual authentic

23:01

person. Like, Is there a type of behavior that

23:03

could have been so negligent that it

23:05

might have opened them up to any liability, or

23:07

does two thirty just basically you

23:09

know, it's magic words that lets you just not have to

23:11

care about that at all if you're an Internet company.

23:13

It's very very close to the latter. And

23:15

if you're thinking Well,

23:18

gosh, that seems to have

23:20

extended beyond the

23:22

language of section two thirty and is being

23:24

judicially interpreted in a

23:26

way that is more expansive than

23:28

perhaps the language requires.

23:30

Congratulations, you are Clarence

23:32

Thomas. No. No

23:34

one should ever be congratulated for

23:36

being Clarence Thomas. Nope. It's

23:38

too late. You should only be

23:40

congratulated if you somehow get over the

23:42

condition of being Clarence Thomas. That's the only

23:44

way. So I'm gonna read Clarence

23:46

Thomas's own words to you and and they're gonna be

23:48

shockingly similar to what

23:50

you just said, which is why I did the police

23:52

proceed senator. But no, there

23:54

was a case that went before the

23:56

Supreme Court was a cert petition before the

23:58

Supreme Court. called Inigba Software

24:00

Group USA versus malwarebytes.

24:02

And the Supreme Court denied cert

24:04

in that case. So let me give you a little bit

24:06

of the factual background. Enigma

24:09

malwarebytes are two competitors that

24:12

provide software that enables

24:14

users to filter out unwanted

24:16

content, right, such as content

24:18

that poses security risks

24:20

and otherwise objectionable content

24:22

on your computer. So Enigma

24:25

sued malwarebytes, alleging that

24:27

malwarebytes engaged in

24:29

anti competitive. Right? Anti trust

24:31

violation of the antitrust laws. by

24:33

making its products difficult for

24:37

consumers to download and use

24:39

in connection with the enigma products. Right?

24:41

So in other words, as

24:43

you're configuring malwarebytes, the idea

24:45

was that they put coding

24:47

into the malwarebytes software

24:50

that made it hard for you to also use the enigma

24:52

software. Given that I have heard of malwarebytes

24:54

and I've never heard of enigma,

24:57

Seems like maybe they were successful. I don't think I've heard

24:59

of it either. Meow air bites. Meow

25:01

air bites. Sort of malware. Yep.

25:03

Meow air bites so enigma suit them,

25:05

and then malwarebytes said, no, no, we have

25:08

immunity under section two thirty. Specifically,

25:10

under section two thirty c two,

25:12

because we're a computer service provider, and we

25:15

cannot be liable for providing

25:17

tools to restrict access

25:19

to material that we consider to be

25:21

obscene, lewd, Lascivious, filthy excessively

25:23

violent, harassing, or otherwise

25:25

objectionable. think our

25:27

competitor is just all these otherwise, sometimes

25:29

people. Yeah. Right. When was

25:31

two thirty passed? Nineteen ninety six. Okay.

25:33

I wonder why, like, you know,

25:36

Microsoft did try to fight the

25:38

antitrust

25:38

stuff they had with this reasoning?

25:40

Did they just not think of it? because that's I mean, that

25:42

feels like a pretty good argument. You

25:45

know? So

25:45

the real answer to that is that

25:47

the Microsoft antitrust cases were late

25:49

nineties and the body of case law

25:52

that malwarebytes was relying on hadn't really developed by

25:54

that. So even though the law was there,

25:56

it it was interpreted extensively.

25:59

malwarebytes was like, let's interpret this

26:01

as spansively as possible, and the ninth circuit looked

26:03

into the history and purpose of section

26:05

two thirty, and they said, you know what,

26:07

you've gone too far. Wow. I

26:09

didn't know as possible. Section two thirty

26:11

was not intended to

26:13

protect you from antitrust violations.

26:15

Right? It was intended to

26:18

shield you from liability

26:21

for, you know, defamation, for

26:23

all, you know, all that sort of stuff into not

26:25

anti trust. Come on. That's ridiculous.

26:27

And then malwarebytes petitioned the Supreme Court

26:29

to take up the case. And the Supreme Court said,

26:31

no, we're gonna let this stand. We think the ninth

26:33

circuit right? Wait. They're gonna let the ninth circuit

26:36

decision stand. Yep. So did not grant

26:38

cert.

26:38

Again, you cannot as

26:40

a lawyer, I I wanna be careful

26:43

here. As a lawyer, you cannot

26:45

then cite that denial of curt as

26:47

the courts of jail could just be we're super fucking

26:49

busy. Right? Is that really a reason they

26:51

did night cert? Which is, like, come

26:53

again another time on my break.

26:56

Supreme Court break. Sorry. I mean, the Supreme Court takes,

26:58

you know, a tiny fraction of the cases that

27:00

are petitioned before it. Well, I just would have thought

27:02

there was some other response like,

27:05

hey, this is a good case, but we just

27:08

sorry. We need our hands are tied

27:10

versus denied. because

27:12

we're we got vacation coming out. We're busy. This

27:15

is one of the arguments that that folks will

27:17

make is this is an improper or

27:19

flawed vehicle. to

27:21

vindicate x particular principle.

27:23

Right? You know, lots of reasons why the Supreme Court

27:25

might pass on the case. Anyway, they passed

27:27

on the malwarebytes decision. Clarence

27:29

Thomas wrote a concurrence.

27:31

He agreed that they should pass on

27:33

the malwarebytes decision. But he wanted

27:35

to just write because he was

27:37

met. By the way, like, section two

27:40

thirty is really getting out of hand here.

27:42

Mhmm. And he wanted to make the

27:44

Thomas Arguments. And he said, look, are

27:47

really three major areas

27:49

in which Section two thirty has

27:51

been expanded beyond its

27:53

specific text. So the first is knowingly

27:55

illegal content. So that

27:57

is, hey, you were meant to be

27:59

immunized from content

28:01

that you did

28:03

not know or have reason to

28:05

know was illegal. But this was

28:07

not really meant to shield you from

28:10

everything. if you actually knew it, it was not supposed to

28:12

be included in the Section

28:14

two thirty immunity. And instead,

28:16

we're dismissing out courts, federal courts

28:19

are dismissing out cases on

28:22

motions to dismiss at the pre trial

28:25

discovery phase without

28:27

even letting planets try and

28:29

prove that you knew that this

28:31

content that you allowed to be

28:33

published on your site was

28:35

illegal. Well, that seems like it's just wrong

28:37

regardless of the case law. Right? Yep.

28:39

There's a case called Ziran in the fourth

28:41

circuit that Section two

28:43

thirty confers immunity even when

28:45

a company attributes content that it knows to be illegal. Oh.

28:47

And subsequent cases have relied on the

28:49

zero decision, jeez. For That

28:51

is a blank check. Yeah. For that

28:53

shielding of liability. Second set of

28:55

cases, our companies are immune from the

28:58

consequences of their own speech. This is the

29:00

reading out of the another from

29:02

the c one part of the

29:04

statute. I'm gonna read Clarence Thomas' language view here.

29:06

Courts have departed from the most natural reading of

29:08

the text by giving Internet companies immunity

29:10

for their own content. c

29:12

one protects a company from a publisher liability

29:14

only when content is provided by

29:17

another information content provider.

29:19

Nowhere does this provision protect the company that is itself

29:21

the information content provider.

29:23

And an information content provider is

29:25

not just the primary author or creator.

29:27

It is anyone responsible in whole

29:30

or in part for the creation or development

29:32

of the content. Two thirty f three.

29:34

But from the beginning, quirks have held the two

29:36

thirty c one. protects the

29:38

exercise of a publisher's traditional editorial

29:40

functions such as deciding whether to

29:42

publish withdrawal, postpone, or

29:45

alter content. So that is

29:47

why I say it is just

29:49

absolutely clear that there's no case against

29:51

Eli Lilly sixty nine. That

29:53

decision to publish withdraw

29:55

postponed or alter by giving a

29:57

little check mark to Eli Lilly sixty nine

29:59

has been held to be at the core

30:02

of Section two thirty c one immunity, notwithstanding

30:04

the fact that it technically violates

30:06

that another part of the statute. And then

30:08

the third area, this doesn't have really a pity name

30:11

to it. I don't think does a good job of

30:13

describing it because he's covering up

30:15

for what what they're really mad about

30:17

-- Yeah. -- which what Trump and

30:19

and conservatives want. Yeah. That conservatives

30:22

think and truly believe. And if and

30:24

this this is so funny. They

30:26

think that all of

30:27

tech is like discriminating against

30:29

conservative content online when actually the

30:31

opposite is true. Like any

30:34

measure that anyone takes of this is like, no.

30:36

Actually, they're at a huge advantage, an

30:38

unearned advantage. But they work the

30:40

refs, and they've tricked everybody into

30:42

thinking they're this discriminated against

30:45

minority. Actually, it's a common theme, you know,

30:47

whether the persecution complex,

30:49

whether it's white Christians being the

30:51

actual the victims or you white

30:53

people in college admissions being the actual

30:55

victims or conservatives on Twitter being the

30:57

actual victim. It is a real victim

31:00

mindset. that's the real motive here. So

31:02

if you're wondering why you might

31:04

accidentally be agreeing with

31:06

Clarence Thomas, I think it's because

31:09

the real reason he's not being straightforward with the real reason. Right?

31:11

Yeah. I think that's that's right. And Donald

31:13

Trump, for example, has been very

31:16

straightforward. The real reason that is engaged

31:18

in viewpoint discrimination

31:21

against my racist views

31:23

and that's why you kick me off the

31:25

platform and not what Donald

31:27

Trump thinks is his equivalent, you know, which

31:29

would be somebody like, you know, Aileen Mussalle

31:32

or whatever. Not people Arguments,

31:35

for affirmative action. Oh, my god. You

31:37

know, they're ranking the races just like

31:39

I'm ranking the races. Right? Yeah. If

31:41

I say an election was

31:43

stolen and it wasn't, And you said That's the

31:45

same. Yeah. It's both the same. You say

31:47

that it wasn't when it right. Yeah.

31:49

And that leads to and I and

31:51

I love the fact that

31:53

you drew the distinction there

31:56

about the way in which tech

31:58

companies have actually

32:01

promulgated and pushed content forward

32:03

that is one hundred percent

32:06

radicalizing individuals who

32:09

absorb that content on the

32:11

Internet. And one of the things that's

32:13

come under the most fire that

32:15

I think rightly so is the

32:17

YouTube out go with them. Yeah. If you're on

32:20

YouTube, like, if you just kinda let

32:22

it go, even if you

32:24

start off with a

32:26

good skeptical. How to fix my door.

32:28

Yep. Did you mean to search for

32:30

how to become a Nazi and storm

32:33

the capital? No. I did. I didn't mean that.

32:35

Why did you suggest that? You

32:37

will get

32:38

very, very quickly, like, I get the

32:40

suggestions all the time. By the way, use,

32:42

you know, click in the upper right hand corner if

32:44

you watched YouTube video. Like, there's a

32:46

report this video and

32:48

you can just scribe it as hate speech, and you should

32:50

be every time it pops up with

32:52

a breaker you video. You should be

32:54

right clicking in the upper right hand corner

32:57

and describing it as hate speech. I don't know where it goes, but can

32:59

I say also this is a separate

33:02

well, it might be separate. I have realized this

33:04

is kind of a different thing that I only

33:06

just now happened to me enough to

33:08

realize? You may not have noticed, but YouTube

33:10

search is actually completely worthless

33:13

now. Have you found that? not

33:15

as such. They have ruined it. So if

33:17

you search for anything like I'm

33:19

searching sometimes when I'm doing

33:21

audio production, I'm just searching for like a

33:23

how to or I'm searching for a

33:25

specific whatever video. You

33:27

get five results that are

33:29

your search and then

33:30

it instantly goes to But we think

33:32

we know probably what you'd rather see and

33:34

it's never right. It's always nothing

33:37

and it used to be on the

33:39

Internet that you could kinda be like,

33:41

alright, I'll just ignore that section. YouTube

33:43

doesn't let you. They only

33:45

it's like if if you did a Google search which

33:48

also is getting worse and It's like if you did a Google

33:50

search Andrew and they only let you see

33:52

the first five results and there was no

33:54

other pages. You're like, but

33:56

Well, I wanna see other result. They don't let you.

33:58

It's unbelievable. I keep doing it

34:00

thinking I must be crazy. I

34:02

must be missing a button

34:04

or something. But I've searched like, hey, you know,

34:06

is anyone else seeing that YouTube search is ruined

34:08

and everybody's like, yeah, it's ruined. You

34:10

can't even use it Unbelievable.

34:12

With that in mind,

34:14

I don't know what to say about this

34:16

old man screams at cloud about the YouTube

34:19

search. But, no, I'm about

34:21

to transition seamless -- Okay. --

34:23

into the Gonzales versus Google

34:25

case, which involves the YouTube algorithm. Here's the

34:27

inciting incident. In November twenty

34:30

fifteen, Nohemi Gonzalez was a

34:32

twenty three year old US citizen

34:34

studying in Paris She was

34:36

murdered when three ISIS

34:38

terrorists fired into a crowd of

34:40

diners at

34:42

Lebel Eikip. Bistro in Paris. That was part of a broader

34:44

series of attacks by ISIS in

34:46

Paris, which included several

34:48

suicide bombings and a

34:50

mass shooting Miss Gonzalez is one

34:52

of a hundred and twenty nine people killed

34:54

-- Wow. -- during those events. When

34:56

the hell was this? November twenty

34:58

fifteen in Paris. So the

35:00

complaint alleged that

35:02

assistance and aid to

35:04

the ISIS mass shooting

35:06

took several forms, including

35:08

that Google had knowingly permitted ISIS

35:11

to put on YouTube hundreds of

35:14

radicalizing videos, inciting

35:16

violence, and recruiting potential supporters

35:19

to join ISIS forces than operating

35:21

in the Middle East, and to

35:23

conduct terrorist attacks in

35:25

their home countries. Additionally, and at the

35:28

core of the appeal, the

35:30

complaint alleged that Google

35:32

affirmatively recommended

35:34

ISIS videos to users via

35:36

the algorithm. Google selected the users to

35:39

whom it would recommend ISIS videos

35:41

based on knew about each of the millions

35:43

of YouTube viewers targeting users

35:46

whose characteristics indicated that they

35:48

would be

35:50

interested in ISIS terrorism. Yeah. I'm gonna

35:52

you know, a satire of our time

35:54

would be that actually, Google

35:57

and all these companies have an advertising

35:59

profile that actually just has a tick box

36:02

that's like going to be

36:04

a terrorist. Yes or no. And they

36:06

actually know that before any authorities do. Like, they it might be literally

36:08

true, actually. Like, I I think probably

36:10

predict terrorism. Almost certainly is.

36:14

literally can't show them the terrorist supply ads because they're

36:16

gonna need them. Yep. The selection of

36:18

users to whom ISIS videos were recommended

36:20

was determined by computer algorithms

36:23

created and implemented by Google. Because

36:25

of

36:25

those recommendations, users were

36:28

able to locate other videos

36:30

and accounts related to ISIS even if they did not

36:32

know the correct identifier or

36:34

even if the original YouTube account had been

36:36

replaced would sort

36:38

of breed even as they took

36:40

them to Oh, wow. These are

36:42

allegations in a complaint. Google is

36:44

free to say as they have in

36:46

their opposition to CERT. that nope, we

36:48

changed the algorithm. It didn't do that.

36:50

They're free to dispute the facts. But

36:52

that's not what happened in this case. What happened

36:54

in this case was Google moved

36:56

to dismiss on the basis of section

36:58

two thirty thirty. They said, look, even if

37:00

all of this were true, it's not, even if all of this

37:02

were true, we're immunized from it. And question

37:04

that is pending before the Supreme Court,

37:06

this has not yet been briefed on the merits.

37:08

That will be briefed at the end of November, with

37:11

the opposition brief due in

37:13

December. But the question is, does Section two

37:16

thirty c one, but not a

37:18

speaker, immunize interactive

37:20

computer services

37:22

when they make targeted recommendations of information

37:24

provided by another content provider

37:26

or does it only limit the

37:29

liability of interactive computer services when

37:31

they engage in traditional editorial functions

37:34

such as deciding whether to display

37:36

or withdraw such content with

37:38

regards to such information. So in

37:40

other words, the question is when you go above and beyond that. Right?

37:43

We get it. Section two thirty means

37:45

that Google can't be held

37:47

liable for airing or

37:49

refusing to air an ISIS terrorist

37:52

video. But the question is,

37:54

when the ISIS video

37:56

rises to the top of the

37:58

recommend queue, based

38:00

on an algorithm that you've

38:02

developed to try and target to

38:04

allegedly try and target those

38:06

who want to see those kinds of videos. We see you've been searching for how

38:08

to fly a plane, but not how to land

38:10

it. Right? You see? You're interested in this.

38:12

Yep. Does section two thirty

38:14

immunize that? And the

38:16

reason I wanted to go through

38:18

that fact pattern is that is as

38:20

sympathetic a

38:22

presentation of let's get rid of section two thirty as I could possibly

38:24

imagine. Yeah. Well, do we have to get

38:26

rid of it or just Well, that's

38:28

that's the question. Right? Mhmm. This

38:30

case kind

38:32

of puts in the Supreme Court's crosshairs,

38:34

the arguments that Clarence

38:36

Thomas wanted to raise, which,

38:38

again, if you

38:40

look at those in the abstract, they

38:42

were awfully similar to the Thomas Smith arguments. These are arguments that have the potential

38:44

to kind of crosscut across

38:47

the parties and lead

38:49

to, you know, perhaps a

38:52

regime in which the answer to

38:54

everything isn't, no, it's the Internet

38:57

action two thirty applies. Right now, that's

38:59

essentially the presumption. Nope. It's the Internet. It's the

39:01

Wild West. We're not responsible for content on there.

39:03

We're not responsible for uploading it.

39:05

That's the c one. We're not responsible for taking

39:07

it down. That's the c two. Kinda use

39:09

at your own risk. And the question is,

39:12

is the Supreme Court going to cut back

39:14

at that? And my guess is that they probably will. If

39:16

you're wondering, is that dangerous in

39:18

a court that is six to three conservative

39:22

activists You bet it's dangerous,

39:24

on a supreme court that is six three conservative activist.

39:26

And then I thought Okay.

39:30

But how do we shut

39:33

off the argument that

39:35

Trump and others are

39:38

making that section two thirty should be repealed in

39:40

its entirety, should be declared unconstitutional,

39:44

should go

39:46

away So now, I can sue Twitter

39:48

for banning me for saying racist

39:50

stuff. I mean, that's silly. Right?

39:54

Yep. Nowhere,

39:56

is it more obvious that that's silly

39:58

then in? A brief recently

39:59

filed by Donald Trump in the

40:02

night circuit. leave it to Trump

40:03

to file a brief that, you know, helps us understand

40:05

why

40:05

his position is stupid. I cannot

40:07

tell you, I've got it linked in the

40:09

show notes. This

40:12

is Donald Trump's lawsuit against Twitter for

40:14

banning him and being

40:18

horrible biased

40:20

Liberals And if you think

40:22

I'm being unfair to Donald Trump, and

40:24

I know you you might be thinking that I'm

40:26

going to read to you. That wasn't

40:30

Right. I'm going to read you from the actual

40:32

complaint filed by a real

40:34

lawyer on behalf of Donald Trump in

40:36

a real court, the US Republic

40:40

Court, use court of appeals for the ninth circuit. A human being

40:42

a a real human being who passed the

40:44

bar exam wrote this sentence. I thought you're

40:46

gonna say who passed the turning test

40:49

Yeah. And the turning test.

40:51

So first, one of the ways in which we

40:53

know Twitter is biased and mean and

40:56

violates the first amendment is

40:58

they suppressed the crucial Hunter Biden laptop story.

41:00

There's a grain of truth to this. Right? No. because they

41:02

Was it Twitter or no. They

41:04

somebody did. They made the decision to

41:08

attached the label, election misinformation to this.

41:10

That's actually a real thing. So

41:13

this lawsuit does not challenge

41:16

the designation of, hey,

41:18

this is, you know,

41:20

misinformation. Here's the allegation.

41:24

And again, no deletions, no insertions, no

41:26

editorializing. This is actually what

41:28

Donald Trump is alleged in open

41:30

court. Quote, This is not an

41:32

arcane first amendment issue. Our

41:34

democracy itself is at stake, and a poll

41:36

conducted shortly after the twenty

41:38

twenty election almost half of Biden voters in key states,

41:40

quote, were unaware of the

41:42

financial scandal enveloping Biden and

41:44

his son

41:46

Hunter parenthesis, a story infamously censored

41:48

by Twitter and Facebook, as well

41:50

as ignored by the liberal media

41:54

and parentheses. According to the poll, full

41:56

awareness of the Hunter Biden scandal would have led nine point four percent of Biden voters

41:58

to abandon the Democratic candidate flipping

42:00

all six of the swing states he wanted

42:04

Trump and giving him three eleven electoral votes.

42:06

Oh, yeah. Sure. Ten percent of

42:08

people were just one Hunter

42:10

Biden story away from changing their

42:12

vote. Yeah.

42:14

And was censored out because the liberal media

42:16

and Facebook and and, you know, and

42:18

this is not just attaching a misinformation

42:21

label to it. or

42:24

you might have on Page

42:26

eleven, since taking office, the

42:28

Biden administration has acted aggressively to

42:31

bully encourage and collude with social media companies

42:33

to censor speech that departs from

42:35

the, quote, party line regarding

42:37

COVID vaccines and

42:40

treatments one of the categories of disfavored speech.

42:42

And yes, this is saying

42:44

that Twitter's treatment of anti

42:48

vax, why don't you take some

42:50

horse dewormer medication and

42:52

UV rays is

42:56

unconstitutional discrimination because they've said that

42:58

Twitter should, quote, impose clear

43:00

consequences for accounts that repeatedly

43:02

violate platform

43:04

policies. In a July fifteen, twenty

43:06

twenty one press briefing, the surgeon general explicitly said

43:08

that CDC wanted social media companies

43:10

to, quote, take action against

43:12

those that considers to be spreading misinformation, which,

43:15

yeah, of course, you do. Why why would

43:17

you want a social media

43:19

company not to take

43:21

down misinformation. But, you know,

43:24

because everything is all relative.

43:26

Yeah. Misinformation is the same

43:28

as information. this is

43:30

the future that Republicans

43:32

want, but fortunately, Republicans

43:34

have also contained in

43:37

their own argument given the argument that I think

43:39

if you asked me

43:42

to represent Google before

43:45

this supreme court, this is

43:47

the argument that I would give. I would

43:50

say, maybe even word for

43:52

word -- Mhmm. -- from this Trump

43:54

brief, which is and I just wanna

43:56

set up. The argument that they're making is

43:58

tangential. Basically, what they're saying,

44:00

and this is stupid,

44:02

is that particularly Democrats

44:04

in congress threatened

44:06

Twitter and other social

44:08

networks that they

44:10

were going to amend

44:12

or repeal section two thirty

44:14

if they didn't get serious, if those social media

44:16

companies did not get serious about combating misinformation and

44:19

hate speech. And by

44:22

the way, that is a, a hundred percent true -- Mhmm. -- There

44:24

were numerous hearings of people

44:26

are using Twitter to

44:29

spread dangerous misinformation stop

44:32

it. And by the

44:34

way, completely constitutional Yeah.

44:36

Not only that as though your

44:39

pretending the right didn't do the exact

44:41

same thing. That's literally what we're talking about here.

44:43

Of course. The president the ex

44:45

president is like, threatening because yeah. Okay. This

44:47

is ridiculous.

44:49

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47:11

implicitly

47:11

threatening to regulate

47:13

an industry if they don't self

47:15

regulate is how Congress

47:18

has done business since seventeen

47:20

eighty seven. I've talked to you about my previous

47:22

representation of the alcohol

47:24

industry. Right? In the

47:26

nineties, late nineties, early

47:28

two thousands, when I represented those companies and trade

47:30

groups, the argument that was being made in

47:32

Congress was, hey, we want you

47:34

to voluntarily give us

47:36

this information and

47:38

voluntarily do certain things. And in exchange

47:40

for that, we will not regulate you. We

47:42

will not have to pass laws. Then, you

47:44

know, of course, Congress got broken. And

47:47

so the alcohol industry stopped doing

47:49

those implicit things, but it used to be the

47:51

case that alcohol industries would not

47:54

broadcast on

47:56

TV ads for

47:58

liquor, for hard alcohol during

48:00

prime time hours. There was no law that

48:02

stopped them from doing that. That was a

48:05

request made by Congress that was voluntarily

48:07

negotiated. They would provide certain reports

48:09

and data to congress about how

48:11

they were conducting their marketing. And, you know, and

48:13

I've told you,

48:16

the role I played in some of that compliance. So

48:18

this is not a thing. This is a stupid

48:20

argument. But in explaining

48:22

what a powerful potential threat

48:25

Section two thirty is the Trump brief

48:28

accidentally makes the argument that I

48:30

think the pro business wing

48:32

of the supreme court is likely to glob

48:34

onto even if that would come into conflict with

48:36

the crazy conservative

48:40

mindset part. of the wing, and it is

48:42

this. The coercive effects of

48:44

government officials' statements and defendants must

48:46

be assessed in the context of defendants

48:48

that is the social media company's enormously

48:50

valuable section two thirty

48:52

immunity. Michael Beckerman, the former

48:54

president of the industry trade group, the Internet

48:56

Association, has stated that section two

48:58

thirty is the one line

49:00

of federal code that has created more

49:02

economic value in this country than

49:04

any other. Mhmm. In twenty

49:06

seventeen, Nira, that is

49:08

a nationally Bected Economics consulting firm, I've used their experts

49:10

before, conducted a study that placed the value

49:12

of Section two thirty in the Digital

49:14

Millennium Copy

49:16

Right Act at forty billion dollars annually.

49:18

Wow. I believe it.

49:20

Freed from this immunity by any

49:22

burden to engage in responsible oversight for

49:24

their content The growth of social

49:26

media platforms and their role in contemporary

49:28

American society has been explosive.

49:30

Twitter's more than forty four billion dollars

49:32

in market value is directly

49:34

attributable to this immunity.

49:36

Twitter host an immense volume of third party

49:38

content would be faced with

49:40

economic ruin if it could be

49:42

held liable for publishing defamatory content contained within those tweets. The

49:44

risk is sufficiently material to disclose

49:46

in their SEC filings, and then they

49:49

quote from Twitter's SEC filings -- Mhmm. -- that

49:52

say, yeah, if section two third, there are

49:54

various congressional efforts to restrict

49:56

section two thirty and our current protection from

49:58

liability for content moderation decisions and

49:59

third party content posted on the platform

50:02

could decrease or change potentially

50:04

resulting in increased liability and higher

50:06

allegation costs. So, absolutely.

50:08

I completely believe all of this. This

50:10

is accidentally correct. because, you know,

50:12

also, Andrew, if we don't let children

50:14

work in the minds anymore, that's gonna

50:16

cost Mine companies have a lot of money. Jack Dorsey

50:18

admitted the critical importance of Section two

50:21

thirty and sworn testimony before Congress

50:24

saying section two thirty is the Internet's most important law if we didn't have

50:26

those protections. When we started Twitter fourteen

50:28

years ago, we could not start.

50:31

Yeah. I agree. During those hearings, Twitter

50:34

stock price dropped eighteen percent during the week

50:36

of October twentieth, twenty eighth,

50:38

twenty twenty hearing remained significantly

50:40

below the earlier level throughout the

50:42

week of the November seventeenth hearing.

50:46

So I think all of that is correct. And so I think

50:48

if you're asking, is there

50:50

a chance that despite kind

50:54

of right wing grassroots outrage at

50:57

social media companies that

50:59

the very conservative supreme

51:01

court might nevertheless continue to

51:04

endorse an expansive reading

51:06

of section two thirty's

51:08

immunization provisions. The reason to that would

51:10

be the greedy, capitalistic wing

51:13

of the Supreme Court, which I

51:15

think has no interest in

51:18

tanking multibillion dollar companies

51:20

that are transacting business over

51:23

the Internet. So if you

51:25

were a fan of the

51:27

current system and nobody's fan

51:29

of the current system in its entirety. But if you think

51:31

it might be dangerous to remove that

51:33

liability and begin to

51:36

open up social

51:38

media and other content

51:40

providers to have liability for the

51:42

stuff that's posted on

51:44

their sites. your allies will be the

51:46

most pro business, most

51:48

pro capitalist wing of the

51:50

supreme court. So Garrity, for some

51:52

strange bad

51:54

fellows. Yeah. That's my revisiting of

51:56

the future of of section two thirty

51:58

and where it stands as

52:00

a political

52:02

Yeah. So Andrew, you you hadn't heard of the fact that Twitter and Facebook

52:04

limited the Hunter Biden story?

52:06

I had I had not. No.

52:09

For real. They did. And I think it's something that's

52:12

important. It's one of those, like, not both

52:14

sizing, but, like, it it is a reason

52:16

to, like, make sure, occasionally, we're not in our echo chamber. I'm not talking

52:18

about the one Andrew recording in last

52:20

week. No. It's true. It's actually I think

52:22

it's a decision that

52:24

wasn't correct. it was it was when

52:26

it was right before the election. There was

52:28

that New York Post story about

52:30

it. And, yeah, the story is mostly bullshit.

52:33

But Twitter and Facebook decided to limit the

52:35

search result the ability to search for it because

52:37

they labeled it as, like, election misinformation.

52:39

So, like, that part of the allegations, there is

52:41

a colonel truth there. and I think it's

52:43

important to recognize that. Otherwise, I

52:46

think if if we don't recognize that and

52:48

we're in denial of of facts

52:50

like that, I think it makes it easier for people on the other side to just be like, well,

52:52

look, they don't even know what they're talking about. So I just

52:54

wanna make sure -- Yeah. -- so noted.

52:56

And and I agree with

52:58

you that I mean,

52:59

I think that is the flip side

53:01

of the last five minutes

53:03

that I would not be

53:05

so cavalierous to say I

53:08

think the dog in the house that's on

53:10

fire. Right? Everything is fine

53:12

when you have a small

53:14

handful of multibillion

53:16

dollar companies that have

53:18

unfettered control over -- Yeah. --

53:20

how they display information and how

53:22

that's transmitted to you. It's why I think

53:24

that the pending Gonzales case is a really,

53:26

really interesting case because the

53:28

YouTube algorithm is absolutely

53:30

one hundred percent radicalizing

53:33

folks right now. So I don't mean to suggest that,

53:35

like, it's certainly not in Elon Musk's Twitter.

53:38

Yeah. No. I was just gonna say. Right. If

53:40

anything illustrates

53:42

that point, It's

53:44

Elon Musk taking over Twitter. So we're not in

53:46

Twitter. We trust. I think those are really

53:48

good points. I think that there

53:50

is a kernel of a fair argument.

53:52

I mean, the Hunter Biden

53:54

laptop story is the stupidest thing I've ever

53:56

seen. But nevertheless, like,

53:58

if you ask, should

54:00

a small number of companies have

54:02

Is it a good model where the only restraint on

54:04

that is sort of the capitalist

54:06

profit motive? And probably not.

54:10

So certainly agree that that it's worth making sure

54:12

we talk about that info coming. And I did

54:14

not I did not know that story. And and part of

54:17

that is just It's a yeah. No.

54:19

I went on Instagram to the, like, Hunter Biden laptop move.

54:22

I listened to that one. And I know

54:24

less about what's on Hunter Biden's laptop

54:26

than I did going

54:28

into it. Right? Well, it's also completely irrelevant to

54:30

anything. I mean, again, it's like we

54:32

have even if you took all the

54:34

facts as

54:36

stated, by the right, Trump put his own family in

54:38

a position to profit. Oh, day

54:40

one in front of us. Yeah.

54:43

completely in front of us. Like, with for all to

54:46

see, Jared is, you

54:47

know, getting billions from the Saudis now

54:49

because of the power that Trump gave him. I mean, it's

54:51

just it's it's ridiculean

54:54

Conway hawked Ivanka's crap

54:58

from the Oval Office. And then said, oh, what are

55:00

you gonna I'll wait for my handcuffs for

55:02

the hatchet. Yeah. So really responsible

55:06

reporting on this should be pointing that out

55:08

every single time. Absolutely. Trump, someone who

55:10

has helped his family members make billions of

55:12

dollars off of the White House, but inappropriately and

55:14

against the the law as it was

55:16

previously understood. Has accused Hunter Biden of doing drugs or

55:18

whatever? Like, it's No. LLC recommended

55:20

that Kellyanne Conway be fine.

55:22

Yeah. Trump's office of legal

55:24

counsel said This

55:26

is as clear a violation of the hatch act. It is repeated. It

55:28

is willful. There is nothing that

55:30

will deter her from continuing to

55:32

violate the law unless you

55:36

fire her. And by the way, all we can do is send sternly worded crunch

55:38

reps, and you appointed us mister

55:40

president. Yep. The differing standards

55:42

is to

55:44

back to the beginning point about how much this stuff

55:46

favors the right. The standards that

55:48

the

55:48

media holds the left to versus the right is a

55:50

major source of that. And it's also just a

55:53

product of when you're doing scandal after scandal after

55:55

scandal in plain sight, it's just impossible

55:57

for the human brain to comprehend

55:59

that

55:59

much misconduct. appropriately. So

56:02

yeah. But anyway, alright. Thanks for the

56:04

updated two thirty breakdown and

56:07

-- Yeah. -- I hate you

56:09

for calling me, Clarence Thomas forever. That was

56:11

the whole point. And you won't be

56:13

in Whoa.

56:16

Yeah. Hey.

56:18

So we started from the

56:20

bottom that we hate, guys. And now it's time

56:22

to thank. Our hall of favors are all

56:25

time greats. This is the Third quartile.

56:28

No. Wait. The

56:31

third all quartile. a

56:34

hall of famers, again, more benefits than ever. And again, once

56:36

we get to that extended schedule, you are

56:39

hearing there's even

56:40

more ads you aren't hearing. Let's just

56:42

put it that way. Now it's a weird way.

56:44

It's a weird way to think of

56:46

things. But if there's even more ads

56:48

you're not hearing, then that's a benefit

56:50

getting that you don't even realize. And why don't

56:52

you start yourself thanking our third quartile? And a big

56:54

thank you to Pablo Eschargo's heroin

56:57

snails. Love that one.

57:00

Don Quicks Oat. Don't laugh. Donkey Hody

57:02

may deliver you a swift kick in the ass. I

57:04

learned the name in a book. Okay? Brian

57:06

Kay Penelope is glad Sydney got

57:09

sanctioned for Trips decree. Leo G is still waiting for a

57:11

Seattle live show. That's that's gonna

57:14

happen. And Green Mac face, April PAF,

57:16

April. Conrad Michael's

57:18

forever. Yes. Abortion

57:20

is pro life. Agreed.

57:22

This is not the greatest patron name. No.

57:24

This is just a tribute. Sir

57:26

Wilfred Snabel of the

57:28

Grimble Pibble. that's a

57:30

knowledge fight crossover. The

57:32

Dow's. Another October birthday here. Happy

57:34

birthday, Andrew and Morgan. Well,

57:36

thank you.

57:38

Jake, Why does Federman, the largest of the Pennsylvania elected officials,

57:40

not simply eat the GOPs. That's

57:42

that's a good Get your armor.

57:46

quote. men

57:48

of quality do not fear equality. Christopher Brown,

57:50

I like the New York's electoral fusion

57:52

and judicial elections combined to get

57:55

me ten candidates for ten races all running

57:57

as both Democrats and Republicans.

58:00

Wow. Carl Jack

58:02

r Willie I

58:04

passed the bar, so now it's time for a

58:06

Philly live show twenty twenty two. There is still time.

58:08

Right? Right? Probably not in twenty twenty

58:11

too, but Philly's on the list.

58:13

Man, Philly. Yeah. Absolutely. The

58:15

accident at Aussie in Germany, if I get the next T3BE

58:18

right, can you top up my supply

58:20

of vegemite and Tim TAMs, please. Darth Mandy pants learned in hand job, copyright

58:22

twenty twenty two, all rights reserved.

58:24

Lou and Seattle Pete Takeaway.

58:28

honest. And thank you to Robert m, blah blah blah's law

58:31

podcast. Impossible Hamburger

58:34

society weirdo.

58:36

cautism is a religious belief about being sincerely held. Still good.

58:38

Boloring a live show with a cup. Yeah.

58:40

I wonder if they're gonna win the cup this year. I

58:43

don't know. I feel like they're not quite

58:45

as good, but, I mean, they're still

58:47

so good. So that'll be interesting.

58:49

Paul Hernandez, Andrew, will you represent

58:51

my company one hundred percent liable? This

58:53

is legally actionable LLC.

58:56

Fred from Colorado keep

58:59

Colorado an abortion access

59:01

haven with LGBTQ

59:04

legal protection, support Colorado Statehouse Hemp. That's another

59:06

Colorado patron. Maybe that's another place

59:08

-- Yeah. -- to do a live show.

59:10

We owe Fred a live show

59:12

show. We owe a lot of people a live What happened

59:14

to Thomas' feet? Jason Copas, Bob

59:17

Coburn, unemployed

59:19

hacker for hire, Stop

59:20

calling him uncle Frank, Nate Drex has to call him

59:23

dad. You do not like treason, so you

59:25

say, try it, try it, and

59:27

you make it. civil politics

59:30

radio dot com, verizon seven PM Eastern

59:32

Valley View Radio. John Buildersback,

59:34

Ian Hamilton, does Davania,

59:37

comrade Michaels, raises a toast to everyone who

59:39

volunteered this election cycle and offers you

59:41

a free pint. Jennifer Crutch. I

59:44

like boobs and I'm tired of pretending

59:46

I don't Again, why are

59:48

you pertaining to? Yeah. Stop Alawada

59:50

defender, Jeff Galbach. It's not illegal

59:52

to hope bad things happen to Samuel

59:54

Alito. Nope. And

59:56

Baltic Day Thank you so much. Looking forward to the

59:58

final quartile next time.

59:59

Sometimes you eat the

1:00:01

bar, sometimes the

1:00:04

bar, while e

1:00:06

two. And now it's time for T3B

1:00:08

answer time. Another look, this

1:00:10

book seems to be a

1:00:12

similar pattern. It's either

1:00:14

a horrible trick or a basically correct thing or, you

1:00:16

know, maybe I misanalyzed it. We'll see. What's our

1:00:18

answer here? Alright. This was man charged with

1:00:20

larceny of a coat from a barstool

1:00:24

state puts on a witness who testified that the man said

1:00:26

before he took the coat, gosh,

1:00:28

I'm so forgetful. I must have left

1:00:31

this here hours ago it

1:00:33

could easily have gone missing. Then says the judge declared a

1:00:35

mistrial rather than a acquittal. Can the

1:00:37

man be retried? Now,

1:00:40

the fact pattern is super weird because as I read it,

1:00:42

admitting that testimony, the reason for

1:00:44

the mistrial is that that testimony

1:00:46

looks like inadmissible hearsay. Right.

1:00:50

So maybe it comes out. It's too

1:00:52

late to prevent it. And so then the

1:00:54

judge says it's a mistrial.

1:00:56

Can the man be retried? You

1:00:58

went with A, yes, this will not offend the constitution.

1:01:00

Thomas, that's absolutely correct. Uh-huh.

1:01:02

He is perfectly reasonable to

1:01:06

retry somebody for the same offense notwithstanding the double jeopardy clause.

1:01:09

The no under the federal constitutional

1:01:11

retrial requires new evidence that is

1:01:13

silly, not the law.

1:01:16

see. Yes. If the man can be

1:01:18

can be proved guilty. Awesome. definitely

1:01:20

that. d yes, under the

1:01:23

Erie doctrine. Alright. Let's hear

1:01:25

it. What's the air doctrine? The air doctrine applies in civil

1:01:27

cases. It involves whether you apply federal procedure

1:01:29

or state procedure to

1:01:33

state actions that are pending in federal credit. Absolutely nothing to do

1:01:35

with a criminal indictment. So --

1:01:37

Wow. -- answer a,

1:01:40

and great job. Thank you. Why don't we go to this week's winner and

1:01:42

see who else wasn't fooled this

1:01:45

time? But boy, I think I have a good

1:01:47

record on this book, but who knows

1:01:49

if it'll last? Let's see who this week's big winner

1:01:51

is. And it's my turn to pick the T3BE

1:01:54

winner because Andrew is still getting

1:01:58

his Catherine worked on or whatever the

1:01:59

echo problem is. So we still haven't figured

1:02:02

out our alternative to

1:02:03

Twitter until we do,

1:02:06

I guess, we'll just keep using Twitter like with the

1:02:08

musicians and Titanic, you know, we'll

1:02:10

just be still t three being on Twitter

1:02:12

until we figure

1:02:14

out what other thing makes sense for this format. And so this week's

1:02:16

winner is at Jaeger von

1:02:18

Koss who says, I'm late, so

1:02:20

no research in all snark for my T3B

1:02:23

answer this week. It's a, you don't get to be the world number

1:02:25

one for incarceration. If you give up

1:02:28

perfectly good opportunities to lock

1:02:30

people up at every

1:02:32

mistrial. Also, the other answers all sound

1:02:34

like nonsense to me. Yeager,

1:02:36

you're completely right.

1:02:38

And for not exactly

1:02:40

the right reason, but I mean, maybe. Kinda. I

1:02:42

don't know. I can't tell you because I'm not the lawyer.

1:02:44

But anyway, either way, well done. Thanks

1:02:46

for being this week's winner. on T3BE as long as

1:02:48

it's on Twitter for now, still play there

1:02:50

and we'll see what happens later.

1:02:52

Congrats. And that's our show. Thanks

1:02:55

so much for listening. I hope you have

1:02:57

a very happy thanksgiving to all

1:02:59

these who observe. I

1:03:00

don't know. Is that an observance? It's

1:03:02

more of a celebration. Right? Yeah. In

1:03:05

ingest. To all those who ingest all those who ingest. Go

1:03:07

on Patreon dot com. Tell us your

1:03:09

favorite thanksgiving side dishes. There

1:03:12

we go. And also, OA will be coming at you

1:03:14

regardless we don't take any time off because

1:03:16

that's just how we are. Because we know. You know?

1:03:18

It's it's all long been my policy. I said

1:03:20

every year,

1:03:22

Andrew, Sometimes

1:03:22

when you're traveling to visit your conservative crap family, that's the

1:03:25

time when you need us the most. Yep. And

1:03:27

that's how I feel about my podcast that

1:03:29

I listen to. So We

1:03:31

try to be the change that we wanna see in the world. There you go. So you'll

1:03:33

have an o a and the usual time. And then the week

1:03:36

after that, you might have double --

1:03:38

You'll have a -- so much o a. You can't

1:03:40

stand at it. for. Looking

1:03:42

forward to it. We'll see you then. I

1:03:44

move for a bad court thingy.

1:03:46

You mean a mistrial? Yeah.

1:03:48

That's why you're the

1:03:50

judge and I'm

1:03:52

the law talking guy. This

1:03:54

has

1:03:55

been opening arguments with Andrew and Thomas. If you

1:03:56

love the show and want to support future episodes,

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1:03:59

Patreon page at patreon dot com slash law. If

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1:04:28

It produced with the assistance of transcriptionist Heather Leveridge, assistant

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Ashley Smith,

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