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


And what's the first thing I want to do after we have different. President taking shower and apple impeachment is about cleansing in I I do. The heretofore document had had dry AAC on for at least many fork nights Here too yeah. I did a long time. There was a long go. Side was powerless powerless to help you. Not Punish welcome to opening arguments. The podcast that pairs inquisitive interviewer with the real life lawyer. This podcast is sponsored by the law offices of the Andrew Torres. LLC for entertainment purposes is not intended as legal advice does not form an attorney client relationship. Don't take it legal advice from a podcast. Welcome nobody arguments. This is episode. Three hundred hundred forty two. I'm Thomas Smith There's Andrew Torres how you doing Sir I am fantastic. I'm on pins and needles for the Drastic dramatic back away. Fantasy football semifinals. Tomorrow I'll be I'll be rooting for blackbox men. Since my my team just narrowly missed this lights. Like this happens on Tuesday so I'm already so semi-finals already happened now. Yeah well then. They machine malfunction everybody basking in the glory. The of your upset victim definitely going onto the championship you know. I'm sure that's happening. Time Machine Working Andrew. Jeez I'm sorry it's look it's it's been a long life but particularly today along three years especially all right. We've got some fun stuff today. WE'VE GOT A. I think someone managed to make a copyright law question but with Christmas theme. Is that what happened. Yeah Yeah and and I. We can be bribed. We can also be induced into Answering questions by by means of Clever set I like it. So we we got that We've also got the bad news that you promised last week where we get to see how much more we're screwed because the supreme court being ruined because we failed in two dozen fourteen and sixteen. So there's that and then we've got we're going to go back to the wildcard segment format and I'm opening. You know I'm rooting. We get to this one but I still think we need. We need to make Andrew through do it like you gotTa know freebies. Andrew got to earn this wildcard. If you if you get to it. But Eliza do my best We'll see Andrew is up to the task of getting through all the things he needs to say in a reasonable amount of time which is very hard to do is definitely not taking away from how difficult that is all right. So that's our show. Let's get to our for segments. I give you my late. I can't do my those are my legs. It feels better so this is a frozen related question. And I'll have you folks know that that I had a A house rule against showing phoebe frozen. Because you know I remember when every little girl had to scream at the top of their lungs let let it go let it go let it go for over and over and over and I thought well it's just the voyage. She doesn't know what she she already has a movie she likes. We don't need to you. You know like just pretend we missed that one. Oh well it was it. was she going to wake up and realize like hey parents I think you're withholding a crucial Disney movie from me. No but I was overruled. I don't know how I'm not sure I'm launching an investigation. There's going to be articles of impeachment so forth Because somehow frozen was introduced to my child and now it's all she wants to watch from an issue singing let it go she she is so she's still only two and a few months. It's it's so cute. She's just now being able to mainly sink kind of thing stuff bare releasing stuff rather like she can't process the words fast enough. You know like she's still she's she's. She's very precocious. But it's still a struggle to get the words so she'll get there but maybe we can bypass that skips straight to frozen to maybe question of the audience or the frozen two songs less annoying than frozen one anyway. Those are frozen. All that is to say the frozen related question that has Very High Relevance to my household now against against my wishes okay say Josh Gad and this is from sorry by the way listener Tim for self is excellent question here we say Josh Gad who voices the friendly Snowman Olaf by the way one of Fiji's favorites I love it. She goes snowman. Snowman decides to make a song railing ailing against Justin Walker Amy Coney Barrett and Brad Kavanagh as right wing. howler monkeys in his voice? Could Disney. Sue Him I can't imagine that contracts for voice actors cover everything that they say with their own voice into perpetuity. So where is the fine line drawn. Can he speak freely on issues as of the day or is his voice in indentured servitude to the Disney Corporation. This that person jokes by the way but I'm not the biggest Disney historian. The one thing I do know is Disney. Totally aft- over The original the actress. Who Played Snow White? Do you know this. I mentioned it before. Yes something I came across in like like I was wikipedia. And because it's weird. I heard the. I've always wondered that little voice in Wizard of Oz that sings while the ten minutes singing sound a lot like snow white eight and I looked it up and it was Snow White. And that's the only other thing she was able to do. Because Disney who is like an evil corporation even back then was like okay. You're the voice of Snow White. We want that to be you forever. So you're never going to blacklist you. You can't do anything else. Ever accept that when she got to do that. One little vocal part heart but like they successfully blacklisted her with other with any studio and she didn't get to do on it. It's the worst so this is a very real question. I don't think they can get away without any more but they definitely cannot do that right is they. Didn't pass the bully like I know you didn't say this to Pat Yourself on the back so I feel comfortable complementing the the fact that you could recognize her voice in a bit part in a later production lake. I I continue. I'm one hundred percents this I continue to be in all of your of your Auditory Skill Shit. That's super impressive So let's answer the question here and I I loved. I loved everything about this question. Particularly the The indepth frozen setup which I knew what a pre you know. You would appreciate because of phoebe and our listeners. It's holiday it's everything it's fantastic. Okay so this is a question question of copyright and interestingly enough. I think this is something where you can figure out the answer by just thinking about what it it is that you own in copyright. So let's let's start off with the basics right You write the script frozen guy you write the story that well in fact. Let's let's work backwards. I you write the script for frozen. That's a thing you own right. Okay and the Disney zillionaire. You good on me. Well who knows right they could they could. They could pay you just to scriptwriter allows people look at this right so minimum wage be some poor Disney wage slave And you're cranking out scripts and you know you've you've written thirty eight in a you know caffeine. Fueled Hayes in the basement of You Know Sunnyvale California and all of a sudden like your fevered brain brain cranks out frozen you own that. Unless under the terms of your employment you are a script writer and everything it is works made for hire at which point the Disney Corporation. Because they're paying you eight dollars an hour now owns descript for weeks But in any any event somebody owns the copyright in the script for frozen and if say Sony pictures decided to come by and make turn the script for frozen into a movie. It's pretty obvious that would violate the copyright right they would have to. They would have to license that out. If Disney's he's like yeah we wrote this But you know we're not super huge on making it into a movie that's GonNa make eleven billion dollars. Maybe somebody else would like to do that right. You'd have to purchase those rights. So that's how the copyright works with frozen but now let's ask ask about what other right so it includes the word for word script of the thing that you're doing right right but one of the things we know if you've ever turned on TV is that you don't get the copyright in the idea right right we can can have eleven different shows that are like who's the best amateur singer in the world. You know come before a panel of judges and the winner will get a record contract right like literally every every network has three of those shows. And it's not like you know America's got talent or the voice serve you know whatever owns the copyright in a show about you know finding the next singing star right. Where's that and that seems like those are sort of opposite ends of opole hole but but they really are a number line right but they really aren't really what you own when you own a copyright in something is you own in addition addition to word for word that thing you own the right to create derivative works from it right so again go back Disney Disney owns frozen? They own law office medical great adventure. Whatever the shortest? That's exactly right like they owned the hypothetical right way back then to produce was frozen to write. You couldn't just say like oh no. Hey Look you oh. Yeah that's right. You word for word. What Olaf says but I can make a delightful romp about an animated snowman named Olaf and Higher Josh Gad? Right now no like that'd be a funny world like the minute again. If he comes out every other studios right now the I wanna make the sequel wins if our if our soul libertarian listener would write in because right like that that seems to be consistent with like like the efficient markets hypothesis writing that you should only you should not get derivative rights from your copyright. You should only get the initial rights and if somebody else wants wants to write a fan fix sequel Soviet We do not live in a libertarian. Paradise we live in a world with robust copyright law in which we would. I'd say. Hey you know what like we want to reward and encourage people to create enduring works of art and so we want to grant them derivative evidence rights really for both positive and a negative reason right like and the the negative reason is we don't want could you imagine a world in which you could legally we produce and sell fan fiqh right like because that's essentially what we're talking about then instantly like any good thing that was produced right would be drummed out by the legions of crap using the same characters right. So that's kind of the negative and the positive reason is we want to encourage courage particularly in the creation of art which is often not lucrative in its first go round We want to encourage people to to continue to produce that sort of stuff right so you get the right to do derivative works what. A derivative works mean derivative works include writing frozen to do it also includes frozen on. Ice Rank You know the the icecapades version live action For were you know toddlers at your local Civic Center it also includes the I guess there aren't Saturday morning cartoons anymore but you know the the Saturday morning serialized cartoon on Network tv of I think you said it's called olafs big adventure or something like that. I can't remember. Yes what we put on as a compromise because phoebe wants frozen. We're like well. Let's watch this thing. That's not the whole movie but is also still the characters it's good. I like having having watched lots of cartoons but not lots of frozen related spinoff cartoons But yeah let's put that all sort of under the category of you own own. Derivative rights includes spinoffs but now think about Olaf dolls right who should own the copyright in Olaf Aloft dolls and and again under Copyright Law Disney should own the copyright allocate certainly. Does he owns everything. I'm pretty sure Disney owns this show so I don't I don't know if that's true or just Disney's of monolith controls everything right well but but think about the opposite rule right. which is? We're watching a movie. Where like man? Somebody should make toy out of Olah. Riley Abbey Yeah Right. Of course I can see I mean. That's yeah obviously. That's a little ridiculous but I could see you know what if it was like. Oh whoever came up with the concept art for that character you know like I don't. I don't know how this divides out. When you make a movie I I guess because of like you're saying anyone who's working for a wage or something Disney still owns all of it all the property and everything despite the fact that there was some some person in there air that like drew the character and came up with that? Well end in fact. What you have pointed out is a situation that obtains in California the -Fornia all the time which is if contracts are not super specific? Then yes right you might have Overlapping Copyright claims as to Hey I created x original character and Disney. I Ne- failed to compensate me for that failed to require that I turn over my ownership rights in that character for that. And so and we we do not remotely Oatley have time to get into like the history of the marvel cinematic universe And that would put you to sleep. but suffice it to say that the reason is in on the incorporation of Spiderman into the MC you has to do with how those various characters were owned by various corporate parents. Right So so yes that that that is a it is alive question in the absence of Clearly defined wind contractual regulations As to if you have created an original character in other words Let me say it in an affirmative way it certainly as possible that I could write an original screenplay. Let's say but steal one of the characters that's in that scream lay right So so let's say I come up with We do this all the time when. We're just awful movie crimes. Have we committed are we well. It's we've committed zero crying right but if we tried to make that movie and monetize it You know we would then potentially you know damages to To the original characters. Fortunately we haven't done that but when we do we'll do it in a way that doesn't mean we have to pay anybody else. Yes that's lawyer we'd better be able to figure that doubt. I would hope that I can help us figure that but yeah so but right think about that like if if you if you come up with a super clever well it again and it really no the the full extent of the story here but my understanding is that the fifty shades of Grey novels started off twilight fan. If I'm getting this wrong please. He's do not yeah. I never know wrong about this. Yeah that's a joke or not like I've heard that same fact or whatever claim a million times and I'm always like are they being serious insulting. I can't actually tell I either. So but but but assume for purposes of the segment that that is okay. Then you we saw what happened right. which is the original contribution was maintained right the character's names were changed and all of the like Sparkley Vampire? Your stuff was stripped out right so that gets us back to our Josh Gad. Question and comes back and I think I've talked about this in an online. QNA But but it has to do with the very early years of the David Letterman show which as somebody who grew up watching television in the late eighties is like I love? You know it was one of the first lake staying up late as a as a as a kid you know in watching Letterman and just sort of the what. What was subversive back? Then and is you know has been imitated for thirty years since David Letterman used to have a guy come on his show. The guy's name was calvert forest and he was just a guy. He was not an actor prior to I don't think prior to David Letterman. Finding him and he would come on and do these bits in which he was like obviously shouting his lines reading from cue cards and it was it was kind of. I think you would've so you would have appreciated it. was kind of like oddball humor that totally fit in. With what like eight. Hoping you're gonNA talk about Super Dave because but yeah along those lines. Yeah Super Dave Osborne we can do all sorts of memory. Anyway so calvert forests character on that on the the original late night with David Letterman which aired on NBC was called? Larry Bud Melman because the writers. I thought that was funny. And he would come on and he'd be like Hi. I'm Larry but moment and then with like shout his lines from the CUE card I remember he did a like recurring occurring. Bit about Mr Larry's toast on a stick which was like weird. It's breads answer to the popsicle like with and it was just a popsicle obstacle stick stuffed into a piece of toast but in any event like so he had this kind of humor right and he would come on and do his bits. Well laid a fast forward early nineties. Johnny Carson Retires David. Letterman does not get. The job goes to Jay Leno and David Letterman moves from NBC NBC to CBS. Where show becomes the late show with David Letterman right now? Think of all the copyright. He does the exact same show on. CBS right because NBC does not own the idea of a guy interviewing people it does not own the concept of David David Letterman. Being goofy. It does not own any of that other stuff But when he brought over Calvert forest he brought him over whereas and now we go to that guy. NBC asserted and they didn't want to litigate for purposes poses a bit That they owned the character name. Larry Bud Melman has written for a scan. They would've also owned toast on a stick. which which you know was not that funny by nine hundred ninety four but was was hilarious? Nineteen eighty-three but you know it's there's a shelf life on toast related humor But so come back though. That's Moore's toast jokes. Everybody so yes so he could bring over. Calvert Forest Forest Calvert forest could repeat his stick of like you know reading cue cards kind of obviously but they couldn't call him Larry Bud Melman and and that I think is the answer to plus the sort of kind of interesting follow up question to what Josh Gad can do to speak count against Justin Walker Makoni Barrett Brad Kavanagh up. He can't do it as Olaf he can't do it in the OLAF voice without getting permission from the okay. So that's sorry. That's that's the main thing I want to know because so it sounds to me like there could be a difference between characters were. You're just doing your voice because honestly the Olaf Voice is pretty much just just got like. There's not a whole lot I don't he's not doing a different voice. It's just pretty much him. But if it's something like homer for Simpson or you know one of these characters where it's like. They're clearly putting on a voice and doing like a different voice to the character. Would that be different. You know because of Josh Gad. Just anytime Josh Gad is talking. He's being ill. It's toxic yeah And so what what Josh Gad would have to do right the way you you divide that line. Is You have to make very clear that you're not trying to have this come out of the mouth of OLAF as opposed to come out of the math the mouth of Josh Gad. And that's how you parse the the the what can often be of very very narrow distinction between right. Do you have to get Disney's these permission to use the Olav character. Yes you do because I at again it I am one hundred percent clear That if Disney went into court and said we own derivative rights over the Hypothetical Future Work Olaf rates federal justices. Right eight that that's crazy right like that. Obviously Disney has no intention of putting out like an old off themed legal podcast but but they could go into court with a straight face and we've talked about having Olaf rate various trump appointee so the we own that and the court would one hundred percents ruling Disney's favor and not just because they're Disney. They would rule in favor of of Disney. Because that's the law and so If that were the case right you would have to. You'd have to make it very clear you're speaking as Josh Gad. And not as OLAF which is how they can own the first part but not quote voice actors cover everything that they say with their our own voice into perpetuity and of quote. That's where the line is drawn. It is are you creating a derivative work that is owned by someone else or are you creating an original. You work because I was thinking about like the actor. Equivalent is just any actor anytime. They're talking they're talking like all basically all the characters they've done in movies unless it's it's like you know some unless he's Hugh Laurie mazing. Yeah but so that means the same thing would apply though so you know when Will Ferrell goes on some something so because he did. I think he did a whole La Kings broadcast as wrong. Ron Burgundy wants and so he had to have somebody's permission to do that. I sue you got yeah absolutely or in low and then might have been just a case of someone being like. Yeah go ahead so let me point out. I don't know how common this is in movie contracts But I know of at least one example in a baseball contract so I get to do a little bit of baseball You you could so suppose. You're a movie studio. I and I don't know you know but I don't know who put out the Romburg anger man But you could negotiate in particularly like. Let's say for the anchorman sequels. Right like you're like. I think they've got three right. I think there's one sequel. There's just too I know there's at least a second one. Yeah that one sequels what I said just once. Okay so suppose you're like look. We're doing the budgetary numbers anchorman into his clearly. Not GonNA produce as much income as anchorman one But we know from market research. It's going to it's going to cover its budget so long as we don't have to pay an unbelievable believable amount of money to will ferrell to come back so you might negotiate with will Farrell and say. Hey why don't you take a lesser salary in exchange for some some additional rights and one of the things the studio could do is say. Yeah and we'll give you the right to appear in create derivative works as Ron Burgundy and I think I think will Farrell is doing a Ron Burgundy podcast to. I don't know interesting so I don't know that that's in his contract but I know that there's nothing that would prevent them from putting that in his contract set. An example of that was the when the Orioles resigned. Cal ripken bright. He runs burgundies the Burgundy in they they put a really interesting clause in his contract and And it's it's one that I have not seen a team do sense And it is this watch TV and when you see a sports star appear in another advertisement for something else they will always appear in like casual athletic wear right. They will not appear in their team's uniform right because the team owns the name and likeness to to to to the uniform So the orioles granted cow. I think it was a limited time. I think it's since expired but as as part part of the compensation to him for resigning They they granted him the right to use the orioles logo and in colors in other commercials that he did without having to secure permission which means trusting the team right so in other words. All of your property pretty writes this this the the Graham takeaway from the segment Your when you own property rights even intangible intellectual property rights and stuff you own a giant bundle of rights. It's and those that that bundle can be broken out into separate sticks and you can sell part of it but not all of it I and have fun is. That's interesting now. I have have a bunch of baseball lock questions. I'll try to. I have to ask this though because I think it's interesting now. Wouldn't apply so much in baseball but it almost feels like this would be a clever salary. The recap work around you know so. Is there some rules about. If hockey has a salary cap for example I I assume he has. A hard has a soft salary cap. They have a luxury tax. axo Yeah Okay not important. I'll Anyway it is to me Dan Yeah But but for this question the point is like let's say you don't have a lot of CAP APP room you're trying to sign. We signed Eric Carlson or something. We we blow sharks blown their capra on that and one or two other people so we tried to sign someone like while. We don't have cap room but could we you know. Would you be able to grant some other benefit. That would kinda sidestep the salary cap number. I would assume there's got to be rules against us like you know anything of value it has to be somehow included in. But that makes me wonder so so. Let me give you the answer that I believe applies to to all sports but I. I'm only only confident that it applies in baseball because I I've actually litigated. This I've advised clients have appeared before Congress in in connection with us. So so. Here's The you think Major League Baseball and I believe all major. Sporting organizations Are The individual members are represented by a union right the Major League Baseball Players Association. NFL Players Union right so so the system is governed by collective bargaining and what that means is. There is a collective bargaining agreement between the players unions and the representatives for the for the sport In each sport and those collective bargaining sessions will produce form contracts that then have some ability ready to modify some of the terms so for example in baseball and again I believe in every sport there. There's a minimum you can't offer below at right and In in baseball for example you can offer. But you know you're gonNA offer more money right Which is unlike a lot of collective bargaining agreements? It's and in in Major League Baseball. You can offer incentives right but you can only offer very very specific kind of incentivized right. Yeah that makes sense. So yeah so the answer to if there was an incredibly valuable form of secondary of compensation compensation that allowed you to skirt. The salary CAP A there's some level of of indirect compensation that it is permitted but be If it was something that was clearly you know a a major fraction of the value of the contract. Then and that's something that the teams would. Yeah sure this kind of thing that someone would try it. They'd make a rule about it and you know it would have and then no more dogs playing bass. Yeah Eh. So so so. The answer is usually it is easier in C. B. as to To to define what you can Dan do as opposed to define what you can't do. So I suspect that you know the the way in which the that those agreements are now Formed in every sport right are sort of pretty narrowly tailored to say you know. Yeah not can also offer this in these kinds of circumstances and then it would just be sort of a simple question of Our media rights inner out and and I don't know the the answer to the current status of of whether they're interrupt but that's how that would play in professional sports. Well Andrew the wildcard segment looking a little iffy right. Yeah look look. You've got some bookies out there to now get on November We're going to our main segment. Finally but first a word from a sponsor here opening arguments is brought to you by policy genius. Hey it's December. It's we as I say on these ads. It's the holidays and as as much as we all love. The holidays can also be a bit stressful. 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So lots of folks have written in about the Supreme Court allowing a Kentucky Law requiring mandatory mandatory medically unnecessary ultrasounds and required disclosure To stand That's true and we're going to break take down just how bad this decision is. But it's worse than you think because of the dynamics of of what happened here here and this is really an. It's why WanNa front-load this because this is the opinion part And then you know we'll get to the undeniable facts of the situation. So Oh my opinion. This law is blatantly unconstitutional. It is a no brainer that it is unconstitutional. Constitutional and it is a two one activist decision by the sixth circuit upholding its constitutionality which puts puts. Unfortunately those of us who were on the side of reproductive health those of us who are on the liberal side on any of these legal issues in and a double bind before the Supreme Court which is as follows There are four liberal justices on on the Supreme Court. They could have granted cert in this case because to grant of Surrey as Oh a listeners know requires only four votes so we can and get these cases before the Supreme Court. And if you're looking at it going so I don't understand if the law is super bad and which it it is and definitely unconstitutional and the six circuit was definitely wrong which it was Why wouldn't the court grant cert and reverse and and the answer is because the howler monkey contingent on the Supreme Court does not care what the law is and they are it is? This is one one hundred percent clear to me that Ruth Bader Ginsburg or whomever you know. Elena Kagan went to John. Robertson said Hey if we grant cert in this case how how likely are you to side with the right wing and Robert said Area Likely Super Super Duper. Have you ever read any of my opinion. You didn't even handle who. I am an abortion. You don't really have to. Yeah you know who I am And and and and I just I wanna I wanNA play this out in emphasize the a political and pragmatic implications before we delve into. Just how bad this case. So so. Here's the double bind the way in which the Supreme Court's Liberal Wing went was to say all right. Well then we're not going to touch this case. We're not going to touch this case because we're terrified that if we we do. The Supreme Court will use it as a vehicle to overturn Roe v Wade but the problem in just saying you know you might sit back and go. Okay okay. Well you're if you're a law student in sort of gaming it out and you're like okay well like that's then checkmate right like they can't they. Don't take these cases and we won't overturn Roe v Wade and the reason that it's a double bind is because that means the sixth circuit opinion. Stand yeah this. Law goes into effect and thousands of immediate Patients are affected in Kentucky and potentially millions of women and those who may become pregnant will be affected in the states that are governed by the sixth circuit. Not Not not to mention you know the gateway in and you know dozens of other conservative states. That are going to pass identical laws even though this law is blatantly unconstitutional the deterrent. We've not not talked about this before like we've talked about the dynamic of the Supreme Court you know being five four with John Roberts occasionally having having a A tiny particle shame. That's true that has a tremendous deterrent effect on any political issue. Where the facts are really really bad But you don't think however bad the facts are however bad the underlying law is. You don't think you're GONNA be able to to push i John Roberts right so in other words for us to have a positive outcome at the Supreme Court in the next forever Unless there's a structural change is going to require not only a monumentally terrible decision below but a decision decision so bad. It doesn't trigger John Roberts's innate very conservative political ideology. Right like you know we. We don't emphasize this enough. And I don't want us to to to fall into the trap that you know. A bunch of mainstream media sources are falling into of saying just because John Roberts has this limits does not mean he is not a doctrinaire hard core conservative on social issues and those social issues shoes. Very plainly include religious issues including abortion. So I I want you to understand how bad it is from it. That that that that there is this over that this was a really good illustration of the chilling effect of The the courts. left-wing is terrified lied to take up a case that they know that ninety five percent of legal scholars would say this case is a slam dunk. The other way EH Because it's not in our court and that's that's the America we live in. That's a crisis. We face in the next presidential administration now so now that I thoroughly early depressed you let me back up. Let me back that up with evidence and talk about this law and and talk about Just how bad it is so this is Kentucky Aqui. Revised Statutes Care S. three eleven point seven twenty-seven which follows in the Post Planned parenthood versus versus Casey format of You Know Casey said that if you are pregnant You have the right to an abortion so long as the state it does not place an undue burden on that right and so what pro-lifers have been doing is trying to burden as much as possible double the exercise of that right without a court and go as far up to the line as they can without a court calling that burden quote undo and here here is what the statute requires says And again I'm reading the gendered language from the statute so Trying to avoid that in this discussion here But but the the law is written the way the law's written so prior to woman giving informed consent to having any part sort of an abortion performed put a pin in that the physician who is to perform the abortion or qualified technician to whom the responsibility has been delegated by the physician shall a perform an obstetric ultrasound on the pregnant woman be provide a simultaneous explanation of of what this ultrasound is depicting which shall include the presence and location of the unborn child within the uterus. Again this is is a real law passed in Kentucky Unborn child is not a legal term and should not be present in a statute but whatever and the number of unborn children depicted and also if the ultrasound image indicates that fetal demise has occurred inform the woman of that fact see display the ultrasound images so that the pregnant woman may view the images and de escalate that means listen with the stethoscope And and and make an and make audible the fetal heartbeat of the unborn child so that the pregnant woman may hear the heartbeat if the heartbeat is a is a is audible e provide medical description description of the ultrasound images which shall include the dimensions of the embryo or fetus and the presence of external members and internal organs if present viewable and death retain in the women's medical record sign certification assigned certification from the pregnant woman that she has been presented with the information required to be provided and has viewed the ultrasound images. Listen to the heartbeat if the heartbeat is audible or declined to do so the sign certification shall be in a form prescribed by the cabinet that is by up. Yep So this. Is Somebody working at planned. Parenthood right somebody who believes sincerely in the right to choose news working with a patient who has requested an abortion is now compelled by law to do these six things right to do to to perform an obstetric. That isn't invasive ultrasound. Right to narrate all of these details about the fetus in a form prescribed by law. That is they have to follow a particular form To they they must display and make audible the ultrasound ultrasound and the images to their patient and then you know engage in this medical description. Listen all of this. I want to read the way in which this was described in the cert petition. And here WANNA give it a trigger warning upfront. I'd I don't think this is a graphic and violent but but but I'm going to talk about the way in which this was characterized before the court and so if you're squeamish about about describing the procedures related to An invasive obstetric ultrasound. You Might WanNa skip ahead About a minute. This is how how this law works in practice. And again this from the cert petition. So the petitioners our medical health organizations right petitioners performance ultrasound on all patients before providing abortion abortion care consistent with established medical practice offer every patient the option of seeing the ultrasound image and discussing with their provider unstated. Many patients do not wish to view the ultrasound right. They have made a medical decision. And you're trying to talk them out of it by saying well look at how much it looks like a little baby. Going back to the Sur petition. The Act challenged here transforms the standard medical practice into a pure or speech mandate under the act. The physician must display and provide a graphic description of the ultrasound image. The physician must convey these specific specific words images and sounds to the patient even if they do not want to see or hear them and even if they tried to physically resist them as a result of the law while the patient patient is half naked on the exam table with their feet in stirrups usually with an ultrasound probe inside their vagina. The physician has to keep talking to them showing them images and describing those images even as they try to close their eyes and cover their ears to avoid the speech the Commonwealth characterizes. This is part part of informed consent but it is not the most obvious tell. Is that under the act. The patient has provided informed consent even when they have not seen or heard the images are description shen so long as the physician has read the mandatory script a law that requires a physician to keep speaking. Even though her words do not inform. Anyone of anything is not an informed. Consent provisions and indeed the Act is flatly inconsistent with the tradition of informed. Consent which precludes doctors forcing information on patients in this manner and requires doctors actors to respect not run roughshod over their patients autonomous choices. That's the law. That was just upheld in the sixth circuit and over which the Supreme Court declined to grant search Aurora even though It is flatly unconstitutional. How how am I so confident that it is flatly unconstitutional in an age? In which you know who knows what constitutes an undue burden Because this case has already been litigated. Five years ago went to the fourth circuit in a case called Stewart versus Chemnitz and these cases are being characterized as free speech cases compelled speech cases and not abortion abortion cases. Not because this is not about unduly burdening abortion it is one hundred percent if you read me out. Let's say this is a free speech case on abortion in case They are wrong right there. That's that's a surface level analysis. That doesn't apply here But as a matter of legal tactic tactic because determining what constitutes an undue burden is a is a foundation that has been consistently eroded for the past twenty five years in our courts instead. These cases have gone with the much stronger footing of. Hey the government can't don't intervene in a medical procedure and tell the doctor that they have to say stuff that is unrelated to that medical procedure right in particular right. This is the the binding precedent. Here's the law under the First Amendment. If you have a regulation Shen that forces a physician to say something. That's subject to heightened scrutiny unless you're forcing them to say something that is part of the practice of medicine right so in other words you can require that doctors convey truthful full non-ideological nonpartisan information as part of regulating the practice of medicine. That's not compelled speech. That doesn't get heightened the scrutiny right but the key term is what constitutes the practice of medicine a regulation that affects physicians nations speech. And I'm reading here from the descent and the circuit receives deferential review only when that speeches auxiliary to a medical practice right in other words as the descent says when the state regulates the content of physician speech in a manner that is inconsistent with the practice of medicine. Addison we must apply heightened scrutiny full stop and I would add that. The viewpoint discrimination which also invokes heightened scrutiny clearly applies right. This is a political issue that the state is weighing in on one side and they are requiring abortion providers to read need a pro-life script that is super duper obvious that that violates not only the if not only does that overly burden a patient's right to undergo an abortion But it very clearly violates the First Amendment it is the government preferring one kind of speech that is anti abortion unborn child listened to its little baby heartbeat Over another kind of speech and and the First Amendment says you can't do that the sixth circuit says you can and the Supreme Court has now let that stamp. I was already pre depressed from the beginning said I. Where do I go from here? Even more met yet. Look you should be even more mad Because this is something and again. The only solution in in cases like this is grassroots activism right is ensuring that legislators are held accountable and look this Kentucky Matt Bevin was just voted out in Kentucky and I get he was voted out for a whole bunch of complex reasons but this was one of his signature accomplishments and when the Supreme Court denied Cert- you know he was out there tweeting about how wonderful this was so you know it it sucks. We should not be in a position. Shen that We have to take out in terms of grassroots activism Protecting a person's right to choose news So yeah I guess so. We talked about in the past how it was likely that we were never going to get a case striking down row. Oh because it's just not worth it for conservatives to do that it's way more sinister for them to just effectively. Get rid of row while always saying like well so it still applies. But but we're you know carving it back and carving it back to the point where it becomes meaningless right so tactically. That was what we always said was probably going to happen. been because it's the most Competent evil thing and the when it comes to certain people certain evil people are incompetent but unfortunately people like like bill bar and and and Conservatives on the Supreme Court are actually pretty competent in doing so. That was going to happen now. I didn't consider this though which was it? Sounds like an even more annoying way to get this horrible. You know anti women's rights Stuff to to be an effect is to just win. There's a I guess it would depend on the circuit that you're in but when there's a circuit court that is conservative. They can just do a bad ruling. That essentially ignores the rights that women should have and then the Supreme Court doesn't even have to validate. It just has to knock grant cert because we're in some hostage situation where we're afraid that if you know the liberals are grants are then row will be undone so the Conservatives. Chris can just be like all right. We won't grant cert and the conservative circuit court just gets to effectively control everything in rule however they want in the loss dance. Yeah that's exactly right and the your analogy of hostage situation. Is I think a better one than my lack of analogy. Elegy start this segment. That's exactly what it is. The the howler monkey contingent knowing that John Roberts will vote with them. You know nine times out of ten on and classic right wing political issues Is Holding that hostage in terms of in terms of encouraging the courts liberal wing to pass over blatant errors of law that have a real meaningful handful deleterious effect on the real lives of real people. I do not blame the health organizations for seeking cert in this case right their job is to their clients and their patients and they are trying to do everything they can even if it is a You know losing effort to To overturn terrible law. And that's not their job is to is to represent the interests of of their patients You can see the the the members of the supreme. I mean. There's no other way to explain this other than the left wing on the Supreme Court getting together and saying Gosh we we. You gotTA fight our own holding actions here and fundamentally again I you know uncle clearances long since turned out this episode because this has been a pretty solidly You Know Pure Cure. left-wing propaganda episode. But but if you tuned back here but maybe maybe they want to do a victory lap heatless affect you're listening or you're doing your victory lap. I'll I'll just say it to you like this the fact that the Supreme Court is engaging in that kind kind of calculus should dismay and upset you right that that's one hundred percent urine originalist one hundred percent with the founding fathers did not want to have happened was for the Supreme Court to to break up into factions and for the justices on both sides to be calculating. How do we minimize the damage that this activist contingent wants to do by taking cases and overturning precedent? And that's where we are what so. What is the best thing that we can do? I mean it's just a question of in these states trying to get this legislation to either not happen or be overturned. Is that all we can do. And that's not a lot to go on for some of these deep red states where you know chances are slim is there a is. The other pattern is the Kansas Supreme Court decision that we talked about from last year which is Bringing challenges to state laws in State Court alleging. That's not what happened so this was so oh great question. This case was initially filed in federal court. Now look there are a lot of reasons to want to do that from from a strategic dietrich perspective. Okay that that can't go through all in the segment I don't fault the lawyers for bringing this case in federal court but I will say State Court in when you're in these very very conservative circuits You may also have You know get the Kentucky State. Supreme Court has like I don't know Kentucky. Appellate courts are like Ach probably guess We could you know talk to some of our friends out. There rejected Shelly Henry from the Ha so so you have to make it a calculated decision about where you want to file the lawsuit. But I will point out that we one unexpected victories in places. It's like Kansas. So I think it's fair to say it this way up until five years ago if you were. A civil rights litigator challenging legislation. Elation you brought those challenges in federal court and I would say now that just as a matter of course right because the habits of court because of the relative compositions of the respective bench for a lot of different reasons and what I would say is i. Don't I'm not in your field. I'm I'm not trying to usurp the judgment of experts but I would put on in the toolbox. You know reconsider maybe is a State Court Suit may be the best vehicle for For resolving this This decision That there's another vehicle if you're you're already in federal court one of the things that you can do and this is I'll I'll try not to do too long in the sidebar but you know I I do want something other than just. It's bad ad. It's bad it's bad it's bad it's bad so so I love you asking the question If you're stuck in a terrible circuit one of the things that we've talked about is that you can get into federal court on the basis of diversity jurisdiction and also on the basis of pendant jurisdiction And that means sometimes federal federal courts are adjudicating questions of state statutory law or State Constitutional Law and. There's nothing wrong with that right. The law says that that we we presume that federal courts are good at that right in federal judges the exception of the recent spate of trump appointees are supposed to be supremely qualified and smart. And you know capable of of applying state law but there is a vehicle in every state that says you can N- file a certified question to the State Supreme Court and the reason you file a certified question is when a federal court when the litigants in in federal courts. Say you know what This isn't super clear. In our law. It would be a matter of first impression and rather than have a federal court. Assuming what Kansas are. Kentucky Law is Why don't we just ask the Kentucky Supreme Court instead right when we say to them be totally straightforward? Be like. Look there are some law that says this. There's some law that says not ex- sponsored for us And this is. This is one of the exceptions to the you know the the law does not render a junior Katori opinions. This is an exception and it and it and it is a specific exception that allows courts to render an advisory opinion. That says okay in the opinion of this court the answer to the question you have. Certified to us is X.. And so I would say that. That's another tool that I would. I would add to the toolbox. You realize you're about to get homered in the sixth circuit and you have a discrete issue of Kentucky Constitutional Law Petition Petition. The court To certify the question to the Kentucky Supreme Court Again these may be low probability. outcomes uh-huh but But they are. There's something you can do so So I throw that out there as well all right. Well thanks for that advice. I mean uh you blew it. There's no time for the wild card segment. But that's okay. That's fine worthwhile. It's an evergreen question will push to the next wildcard. 'cause we've got still more to do which is Mainly that we need to thank our top patrons are hall of famers are all time greats on top patron Tuesday from Patriots Dot com slash law. Going again a lot of movies Christmas theme coming at you very soon in fact may already be up by the time you're hearing in this but If not very close to that so here we go. Let's think our Beijing's let me be totally clear. I like Seattle shows Ian Buckley. Jim Gerald Chapin's Wang Dang in the team Adam Larsson up and at the up an atom the Kirsten Daniel. 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There the last Through for patrons that's great all right. Thanks so much folks and now it is time to find out the answer to last week's bar exam question here. WE GO T- through. Can I get back on that. Saddle no socially. This firm has ever failed the bar exam. Talk to the hand I need you close. That's one of my mission parameters. Trust me I know. Now why you cry okay. So this was a homeowner who concealed a water damage in the roof walked her perspective buyer through the house was Didn't say anything but then without discovering the water damage or the leaking roof and without consulting lawyer. The buyer immediately agreed in writing to buy the home for two hundred thousand dollars but in between signing the contract and closing. which by the way sidebar? You'd ask the question about Closing in the last I would you when you were answering the question and it. It's just this. The law recognizes that there are some contracts that you want to sign in and have become binding at a at one point in time. But you don't have all the information until a different point in time and so you will have an and again. Usually this is in the sale of real estate but it can also be like in the transfer of a business for example right like so. You'll say hey. We agree in principle to the X. and then we're going to close on why and closing Literally again from the real estate. Meant like you know you get out you turn over the key. Everything is all completely done But it's not a situation where the parties are up in the air in between having agreed to the contract act and taking possession of the property or or the business make sense. I I still know sorry. Well here's the thing. What is in effect at the closing date? That's not in effect when you sign the or you know or like we'll because there may be things that you have to discover right so so again. The house is a is a perfect example like you may say. Hey we're going to buy this house for a two hundred thousand dollars subject to it passing inspection right you sign the contract. Then you don't know if it passes inspection you that you're the your rights are indeterminate in that in that interim period and then at closing you're like I look you passed inspection therefore contractors valid. We go forward So the idea is in a contract. You've heard me talk about the traditional elements of contract are offer acceptance consideration and the acceptance acceptance must be of the offer word for word and so. If there are things that are indefinite you will sometimes agree and then sort of put in contingencies. He's and then have a closing. So that's I think the best I can do in in sort of a short period So before the closing date buyer discovers the water damage and says Oh look there's twenty thousand dollars with the water damage. You know F that I'm out of here and I'm not going through with buying this house. Homeowner than Susan was like dude. We had a contract. Are they likely to prevail. You narrowed it down to one. Yes and one no answer You're no answer was no because the homeowner concealed sealed stuff right. There was evidence of water damage and a leaking roof and they painted over. It seems pretty plausible to me. Dear yes answer Yes because the buyer acted unreasonably by failing failing to employ an inspector to conduct an independent inspection of the home So I ultimately went with be which I'm pleased to tell you the correct answer. The law is reasonable. Like you can't it's it's fraud when you It's a IT'S A. It's a fraudulent misrepresentation of a material. In fact when you paint over something And you know you're trying to hide something you know to be the case right. I know you might have been tempted with thirteenth century. Sorry Saxony like let the buyer beware when like even a common law like. You can't hide stuff. This is why we will not do the The the Classic Terrible Tom Hanks Goldie Hawn movie Goldie Hawn Anyway. Yeah right because like this list all all of that is like you. You buy the money then you go back and you're like wait. I'm invalidating this purchase It's just awful movies thirty-seven free before are you all with a lot less work for me so when you when you are affirmatively misrepresenting the facts even at common law. Aw that's a fraud and the buyer gets to rescind the contract. Well I nailed it. Thanks Andrew finally back Back off the Schneider as they. They say in hockey for some reason. I don't know what that means. But okay one one in a row so all streak starting Yup all right well. I'm excited free to hop into your often. Malfunctioning time machine and tell us who this week's big winner of T3's in the hall of Justice. Thomas this week's winner is at books that burn on twitter who writes. My answer is B.. No because the homeowner concealed evidence of the leaking roof in the water damage from the buyer if it had not been painted and the buyer merely didn't notice an obvious water stain. The homeowner might be fine but it would still be shady eighty. Well congratulations on getting it. Exactly right for exactly the reason. It is the active Act of concealment that causes the correct. Answer be here so everyone give books that burn follow on twitter again. That is at books that burn be. Okay S. T. H.. ATP You you are in a podcast reviewing fictional depictions of trauma in bucks. Congratulations on being this. All right thanks so much for listening adding. Thanks most of all to our patrons again a lot of movies Christmas edition sign on Patriot Dot com slash law. It's worth it. You can listen to all the old ones too. It's great all right. 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