Sarah and David open with some corrections – Sarah calls out the breaking-news alarmism around President Donald Trump’s mail-in ballot executive order, then walks back her own read of the Constitution’s congressional-apportionment clause after listeners flooded her inbox. From there it’s a First Amendment-heavy grab bag: A Pentagon leak that brings to mind the Pentagon Papers standard for prior restraint, a First Amendment win for noncitizens facing visa revocation over political speech, and a run of circuit court decisions – election speech restrictions, a girls’ soccer bracelet protest, and James O’Keefe’s Project Veritas sting that wound up in a jury verdict.
Agenda
- [4:06] Sarah got it wrong
- [13:58] Pentagon leaks and the Washington Post
- [26:18] FIRE’s win and student visas
- [40:56] Felons can vote in Minnesota
- [47:19] Trans athletes and pink bracelets
- [53:44] James O’Keefe and a 20-something hottie
- [1:04:01] Predicting SCOTUS cases
Episode Takeaways
- Alarmism in, correction never: Sarah got no fewer than three breaking-news alerts confirming Trump’s mail-in ballot executive order was in effect and zero when a new lawsuit got the U.S. Postal Service’s rule enjoined. David explains that when the final rule was promulgated, lawsuits were already “in the can ready to go instantaneously,” and given the earlier injunction pattern, the outcome was “one of the most foregone conclusions ever.” As of now, the mail-in ballot regulation is not enforceable – watch the appeal.
- Sarah eats crow on apportionment: After a tidal wave of listener mail, Sarah concedes that listeners probably have a better textual argument – the Constitution’s one-representative-per-30,000 language sets a floor for district size, not a ceiling. Her proof: The never-ratified Congressional Apportionment Amendment, one of the original twelve proposed in 1789, which would have capped the size of House districts and fell exactly one state short of ratification in 1792 (it needs 27 more states today to hit the 38 required).
- The Pentagon Papers, again: A Washington Post report on internal non-concurrences among senior generals over the Iran war leaked classified Pentagon deliberations. David’s breakdown: a leaker with a security clearance can be prosecuted with no real First Amendment defense, but once a newspaper has the material, the government’s ability to block publication is extraordinarily limited – the standard David reads from of one of the Pentagon Papers’ concurrences requires proof publication would “inevitably, directly, and immediately” cause harm akin to endangering a ship at sea. Sarah adds that the legal standard hasn’t changed, but the informal coordination between government and press that used to keep this from becoming a court fight – she told her own DOJ story about negotiating a police shooting leak – has broken down, raising the question of whether outlets see themselves as journalists or Americans first.
- Visas, speech, and who gets rights: A Northern District of California win for FIRE held that noncitizens retain First Amendment protection against visa revocation for political speech, in a case about student visa holders’ campus activism. David notes Bridges v. Wixon already settles that aliens have free speech rights, so the live fight is whether the underlying statute’s discretion to deport over “potentially serious adverse foreign policy consequences” is facially invalid – a harder and more interesting question than the as-applied version, which could be narrowed rather than struck. Sarah pushed back with an eviction-restriction analogy: If visa holders can never be removed for speech once admitted, the practical effect is that consular officers stop admitting anyone from regions with high anti-American sentiment in the first place.
- Circuit courts keep correcting district judges: The U.S. Court of Appeals for the 8th Circuit struck down, as applied, a Minnesota law criminalizing “materially false” statements about voter eligibility, ruling in favor of a group advocating for a losing legal interpretation of the state’s felon-voting law. The U.S. Court of Appeals for the 1st Circuit sided with parents told to remove “XX” bracelets protesting transgender athletes at a girls’ soccer game – two of whom were banned from future games – finding the school’s ban wasn’t viewpoint-neutral. And the U.S. Court of Appeals for the 4th Circuit tossed a verdict against James O’Keefe’s Project Veritas over its sting of Democratic operative Bob Creamer, holding the harm flowed from a protected-speech video rather than the underlying fraud.
- Where this heads next: Sarah and David agree the FIRE visa case is bound for the Supreme Court, though the outcome may turn on whether it arrives as a facial or as-applied challenge, and on what the U.S. Court of Appeals for the 9th Circuit panel does first – Sarah’s watching for a Judge Daniel Collins-style “dissental” that functions as a ready-made cert petition. David frames the deeper stakes as a founding-era question the Court will eventually have to answer – whether constitutional rights flow from citizenship or humanity – and by the text and history, they’re from humanity.