 Morning folks, thanks for joining us at Think Tech Hawaii for more difficult conversations to make good trouble. We welcome back Jim Alfini, former dean and professor at Northern Illinois and Southern Texas Schools of Law, Ben Davis, retired professor from the University of Toledo School of Law and Jeff Portnoy, good friend and senior partner and first amendment law expert and many other things including sports announcing on the media. So for today's thing, Jim had you had brought up one of the interesting new decisions out of the US Supreme Court is the one that eight to one affirm the chair leaders extracurricular speech. Well, basically use of the F word on social media on social media outside of campus. I mean, that's the setting and I'm really happy to see Jeff our friend Jeff who's in Bermuda and looking it come on because he's a first amendment expert. So Jeff, let me set you up here. Here's this kid who didn't make the chair leading squad. So she's ticked off at the school. She's ticked off and who knows what? And she says F this and F that and F this and F that on social media. The school says you can't do that and sanctions her. It gets all the way to the Supreme Court takes a few years I think gets to the Supreme Court and this eight of the nine justices which was what surprised me said she had her first amendment right allowed her to say that off campus they shouldn't sanction them. What do you think? Well, I think what we're seeing in not only that decision, Jim, but a bunch of decisions that have come down in the last couple of weeks is a very moderate approach by this Supreme Court attempting to get as many majority votes as they can. And I think this decision is a reflection of that. The affirmation of this students right to speak off campus in cursing out her program for not accepting her as a cheerleader is a modest victory because the decision is replete with warnings that not all off campus student speech is going to be sanctioned or permitted and that much of it still remains within the control of school administrators. There's a lot of language there that deals with bullying and that would not be permitted. There's even an example, as I recall it of a star on the football team, if he were to make a post, would that be something that might be of such importance that the school could censor his speech? So it was a good affirmation that kind of rambling juvenile talk on the internet is not going to be censored when it has little or nothing to do with school itself but it still poses a number of red flags. So I think the bottom line is student speech is still ultimately gonna be under the control of school administrators at least in high schools but we now know that certain speech is gonna be tolerated particularly when it's kind of benign as it was in this case. Yeah, you know, for my generation the F word was stigmatized and villainized or whatever the word is but I understand now the F word is PG-13, did you know that? If somebody in a movie uses the F word it only drops to PG-13, doesn't even drop to R. I think it has to be used a lot to get it down to R, you know? So the F word and maybe part of it, Jeff, is that the F word is more accepted now. What do you think? Yeah, I mean, that could be part of it. I mean, the speech wasn't threatening. The speech was just a teenager's angst at various school programs and particularly the cheerleading coach for not accepting her, you know, was non-threatening. She didn't say, I'm gonna go burn down the cheerleader's house, you know, coach's house. It really was so benign. I shouldn't have made its way all the way to the Supreme Court. I mean, the school district just totally overreacted but, you know, it's a positive sign but I wouldn't go crazy if I was, for example, a teacher supervisor of student speech and a student newspaper or even what's gonna be permitted off campus. I think the Supreme Court in the decision really kind of worked its way to a narrow decision so it could get eight votes and we all know the one minority vote is to be expected in virtually every case. Yeah, yeah. Hey, I wondered, did you guys see the one about the NCAA? Yeah. And paying the, I wonder what you thought about that. My sense, and I didn't read it but was that it was saying basically it's okay to pay them a little bit. It's a long overdue decision. I don't think folks who really study this including antitrust experts for years have been claiming that the NCAA is a cartel. It's fixing prices quote unquote by allowing or forcing teenagers and college kids to bring in billions of dollars for their institutions with nothing in return. That's the one argument. Of course, the other argument is they get a scholarship and a stipend anyway. But I think it's long overdue and even as of today the NCAA could not get its act together to figure out what to do when this goes into effect in five states on Monday that are gonna just basically allow student athletes to get whatever money they can get for their name and likeness. So college sports will never be the same, Ben. The big conferences will remain big and the small ones likely to suffer. Hmm, interesting. I mean, if you're a student athlete if you're a student athlete and you can go to Ohio State and get $100,000 a year assuming they take all the restrictions off. I don't think you're gonna go to Toledo and get 1500. Yeah, I mean, I could see the discussion with your parents. It's pretty straightforward, you know? It's gotta, how much is the school? You got a scholarship and $100,000 on top that we can use to buy a house and all that? Not rocket science. You know, that could work other ways though here, Jeff. The Ivy League schools, which as we know are pretty well off in terms of their endowments. They've got a lot of money. Maybe this'll boost Ivy League sports, I don't know. Yeah, if Harvard or Columbia or Yale decides to throw money that way, you know? Well, yeah, although they have shown that they marched to their own drummer. I mean, they were the first league to cancel all sports when COVID first broke out and, you know, et cetera, et cetera. I mean, they are the model of what people believe college sports should be, even though 100 years ago they were the Ohio States of college sports. But, you know, I do a little of this and the NCAA had just put its head in the sand and refused to be proactive, thought they could prevail in courts and court after court, district court, a circuit court, long decisions pointing out that the NCAA had little to stand on. And yet, as I said, even today they could not get their act together before Monday when these states, these five states have already passed state laws that are basically gonna infeminate the NCAA. I wanna ask if I can about another one, which is the, I guess, the California case about the labor organizing in the fields that apparently California's gotta pay the growers for if the organizers take time to try to organize the labor. It sounds like a pretty anti-union kind of decision. I don't know if anyone took a look at that, but I was kind of amazed. What kind of institutional taking, yeah. You know, I was just thinking of those. I haven't read that one yet. I was curious when I have some time to see what the breakdown is. Yeah, I'm not exactly, I just was thinking that, you know, I was thinking back to, what is it the industrial workers of the world? You know, all the workers at Pilkington and all those kinds of things again. It's like, man, it's hard being a union person in this country. Meanwhile, we're back, guys, to something we talked about two months ago and that's the filibuster. Where are we now, gentlemen, on the filibuster? Yeah. Well, that guy, Philly and Buster, I don't know, that guy in Philly named Buster, I don't know what he's doing. I just don't understand him, you know. I didn't watch that carefully enough, but I thought that Manchin had wavered and that the, you know, the Democrats were gonna be able to pass the voting rights bill. But maybe I don't understand the filibuster, you know, hey, wait a minute, I need to be educated because I wasn't on the call when you guys discussed the filibuster earlier. And I understand basically what a filibuster is and what it takes to overcome it and all that, but what happened here? How come it got stalled? So the nature of the filibuster right now is it's not actually like the old school filibuster, it's that somebody says, I'm gonna filibuster and that's good enough. They don't actually have to stand there and talk for X number of hours until they're exhausted and you know, sort of all those, Mr. Smith goes to Washington kind of visions of it. It's really a filibuster light, okay? And so Manchin, what I saw, Manchin made his own proposal, which was immediately when it got to the cloture vote, you know, 50 Republicans voted against it. So there was literally no Republican support for Manchin's effort at quote unquote, bipartisanship. And that's where he ended up, what was that, Tuesday or Wednesday? So- You need what, 60 votes for cloture? Yeah, you need 60 votes for cloture. And, but all you have to do is as the Senator says that I filibuster, you don't have to sit there and come up with 25 hours of conversation or do like a strong Thurman did. I don't know, he slept on the floor or whatever it was. You know, you just have to, you know, and I thought Vernalia had a great point at one point is, you know, why doesn't somebody propose to go back to the old school filibuster? Sure, we keep the rule, but you just got to sit there and talk, is that- No, but they are, but that's the proposal. That's the proposal that's been on the table. I don't think anybody seriously thinks they're just going to eliminate the filibuster rule. And I think the Democrats ought to be the first ones to think back historically to what happened under Harry Reid, where they did away with the filibuster and now we got federal courts that are controlled by Trump. That's because of Harry Reid and the Democrats doing away with the filibuster on federal district court appointments. I mean, you know, it's going to come around again, 20 years from now, maybe, when the Republicans control, but what I understood is kind of the moderate position, even though it doesn't have enough support yet, is to what you said, Ben, go back to the old way where only one person can filibuster, and once they faint, because they haven't eaten or slept, the filibuster is over. Right now, all you do is kind of say filibuster and it's over. Great, great, great. I think that is, let's go back to the old way of doing things, you know, it'd be fun. I think the political thing though, you know, that is the most fascinating thing. I mean, doing away with the filibuster, which now, you know, is getting all of this Jim Crow argument, you know, that it's a function of Jim Crow laws, et cetera. But you don't have to go back that far to see what happened when one party did away with the filibuster for just certain types of legislation or appointments and what damage has been done. And, you know, yes, do away with the filibuster next week and we'll get a voting rights bill and we'll get a, you know, an infrastructure bill. But what happens if 2022, the Republicans take over the Senate? Now what happens when the Democrats want a filibuster because they got, you know, 49 votes. Great, I don't know, just interesting politically. Well, the one thing that it's sort of inserting into this is the expressions by Manchin, I guess maybe Sinema too, about bipartisanship, by Manchin probably been strong on bipartisanship. I thought that was an interesting point is that at the state level, you don't see bipartisanship going on at all. You're just seeing Republican dominated states, the tyranny of the minority, basically throwing the book at everything to try to reduce who can be the people who can actually vote in those states. And, you know, it seems like all of a sudden this kind of federal bipartisan language when you've got state partisan approaches is in violation of James Madison's double protection of the rights of the people, which was foreseen in the structure of the Constitution with federalism and separation of powers. Thank you very much. I just wanted to throw that one in there. Can you repeat that again? Can you repeat that again? It's in violation of James Madison's vision of separation of powers and federalism, which were provided double protection for the rights of the people. Because, okay, if the states are acting bad, the feds were supposed to step in. The feds were acting bad, the states were supposed to step in. You know, we're not getting that. We're not getting that. Well, let me ask you guys, let me, I'm intrigued by this whole thing about bipartisanship. When did that become the buzzword? That's why we have two political parties. They're supposed to disagree. I don't get this bipartisan stuff at all. Well, Vernalia made a very, a professor. Whoever has the most votes wins. That's the way it's been since the middle ages. Right, so Professor Randall a couple of weeks ago was commenting on the fact that, you know, basically third parties candidates, right, are completely iced out in the set of rules that are go at the state levels with regard to this. So in fact, you know, the bipartisan vision is based on the Democrat and Republican hegemony over everything that is going on to the exclusion of other kinds of parties that might be in place. It's a good point. I always liked, or I've been always struck by a quote from a speech in 1967 called The Three Evils by Martin Luther King, Jr. where he said, some people want democracy for themselves and dictatorship for others, you know what I mean? And that goes so many different ways, you know? It's just, I thought it was really a very perceptive vision of what we deal with on so many different levels, you know? Jeff, your point's well taken though. I mean, is it time for us to start thinking about doing away or at least toning down the two-party system? I mean, you know, we've had third parties recently. I thought particularly when Ralph Nader was heading up the Green Party, I thought it was gonna emerge for a while. I mean, I'm sort of gonna call Ralph and I'm gonna do it in a charismatic, I mean, Ralph Nader was not a charismatic individual, but he was a heck of a lot more charismatic than some of his successors as the head of the Green Party. So I think it may take a charismatic leader of a third party to really get some traction, but I don't see it, I don't see it happening. And it kind of surprises me. Wasn't Teddy Roosevelt the head of the Bull Moose Party or something like that? Yeah. And he ran for president. Yeah. And he probably was the reason for Woodrow Wilson's winning the presidency in 1912 because he was, his Bull Moose Party took a lot of votes away from the Republicans and his successor, William Howard, probably would have gotten in but for Roosevelt's running on. And so, I mean, and that to some extent has been the 20th century experience with third parties. There's always this worry when Ralph Nader was running, there's always the worry that he's gonna take too many votes away from the Democrats and the Republicans are gonna walk in. Who's the Texas guy? Perot. Perot. Perot. Perot. Perot. Perot. Perot. Yeah. I mean, same thing on the Republican side and arguably, you know, the first Bush lost because of it. Well, what do you think about this New York voting procedure which is still yet to be determined? I was in New York for a night and all I saw was one commercial after another. Oh yeah. You now vote for five people, one through five. And somehow there's a mathematical calculation of, you know, how many first place votes you get and then how many third place votes and what's a third place vote worth? And they won't have the decision until next week but you talk about allowing minority candidates, I don't mean minority by race. I'm talking about the minority not within one political party to get in and potentially come in fourth or fifth, make the runoff and then it's three. And then, you know, what do you guys think about that? National and state elections, where you don't just have two or even three, you got 23 people running for five slots and you get to three and one. Back in the Stone Age in the 70s when I lived in Cambridge, Massachusetts, they had that kind of ranked voting system. And basically what I understood that the game was you only voted for your first candidate and you didn't vote for the others, all right? And then that would reduce the likelihood of some other person being able to rise, you know? So you can game it, in other words, in certain ways, anyway. So we'll see what happens, but yeah. I'm willing to give it a try. I mean, what bothered me was beyond what you said, Jeff. You know, the counting of the next to last and last. I got lost with, I don't know if you'd call it an algorithm or something but there's all these permutations that you have to go through to count the votes. But I'm willing to take a look at it and see what the results are. The other thing that's somewhat connected to this is proportional representation. And that comes up periodically. I mean, some countries do have that, you know? And their third and fourth and fifth parties do get recognized and they, you know, there's a lot of coalition building in the legislature. Yeah, I'm not sure Jenny Madison was all, all that smart. Well, then we can have either the Israel or Italian system of government where, you know, they every three days, they have to have a new election because they can't put together a government. Yeah, yeah. Well, what about instead of winter take all in the elections, you know, the electoral college, the proportional breakdown in each state, you know, depending on the popular vote in each state, you would allocate the electors as an alternative. I don't know what that would do on the numbers, but it always, that seemed to me an interesting use of proportionality within the confines of our structure. But yeah, before we run out of time, Chuck, can I bring up that other thing that I mentioned? It's sort of close to me personally. Yeah. My hospital, Houston Methodist is in federal court and they won. They are requiring their employees to get vaccinated. And they were challenged, they have over 24,000 employees, 170 some odd challenged it. Since then, about 25 of those have gotten at least their first vaccination. So they're probably, but there's still over 150 people who said, you know, that's unconstitutional. You can't require us to get vaccinated. And this doesn't count, they did give exceptions to people on religious grounds, pregnancies and other things. So these are pure, you know, it's unconstitutional. Is there anything to that? I mean, I think we're gonna see this coming up, particularly as the schools open up in the fall. There's gonna be schools that are gonna require kids and teachers to be vaccinated. Well, I think if you needed to be a test case to enforce the rule, this was the perfect case being a hospital because I think you can make a strong argument because of the health situation involved in hospitals. What's gonna be interesting, Morgan Stanley yesterday announced that it will not allow any employees to come back to their offices in New York unless they are fully vaccinated, nor will they allow any vendors or customers to come into their building without proof of being fully vaccinated. So as more and more private businesses unrelated to health make similar edicts, Jim, it will be fascinating to see what the courts will do. And I think it's a little bit uncertain, although if I had to bet and I do some employment law and I've actually advised some people politically, and I think PR wise, it may not be the thing to do, but legally I think you can do it. I really do. It's just like forcing a kid to be vaccinated to go to school. That's how I see it. Yeah, yeah, I think you're right. I mean, Morgan Stanley's on one end and hospitals on the other. Schools are somewhere in the middle, sure enough because of the age of the kids and things like that. I think the schools is where the battleground is gonna be. Right, so isn't there something about the nature of the approvals that have been given for the vaccine that they're essentially emergency approvals as opposed to, I don't know, fully vetted approval, magic, whatever blessing by all the powers that be in the normal process. And so that people are arguing that because it wasn't the full on 100% approval, but it's the emergency approval, they have a reason to not get it. And that seems to me the colorful argument that somebody could make in that setting that they're worried about, what was it, the Thaladomai kind of thing, except it's not for pregnant people. If I was pregnant, the issue was that they hadn't done actually tests on pregnant people with regards to them. So there is a risk factor to pregnancy that, but I think that's been dissipated with at least early studies showing that being pregnant was not a big deal in terms of the impact of the virus was, the impact of the vaccine was considered not to affect the pregnancy, but those are the kind of things that I'd argue anyway. A hundred years ago, right guys, the Supreme Court upheld a law that required people to be vaccinated in a case brought by a Jehovah's Witness. I think if that case was brought now before this Supreme Court, it would go the other way. It would go the other way. I think religion is gonna trump almost anything, including vaccinations, discrimination, and whatever with this Supreme Court, at least it looks that way. So let me please encourage everyone to shamelessly promote my SSRN.com piece called A Brief History of Insanity, the Gaudio Translation, which goes back to the papal bulls of the 15th century, one of them which blessed the perpetual enslavement of Africans, and the other one which started the Spanish Inquisition. So, and with the protection of God, I just wanna take, you gotta read it. I mean, it's just been translated into English, the 1478 one for the Spanish Inquisition. Can I wait for the movie? Can I wait for the movie? I tell you, I think we've lived the movie, but I just wanna encourage you because this guy, Andrew Gaudio, at the Library of Congress, did the first translation into English of that 1478 papal bull letter. And it's a hell of a thing to read, especially if you're Jewish, and I have a little Portuguese Jewish in me, and if you're African, I have a little bit of that. I was really like, right in his target. I got one quick comment. Does Chuck get paid for today? He didn't say anything other than the first seconds. Yeah, yeah, yeah, here we go. I'm serving pro bono. Unfortunately, we're out of town today, but the interests to be balanced and who does the balancing and which ones take priority over the others is a very changing landscape. So if we step back from today's discussion and we start to think about those factors, keep those in mind. We'll be back in two weeks and we're gonna get another deep dive into balancing of conflicting interests, majority, minority, and otherwise. Thank you all. Come back, see you in two weeks. Jeff, Ben, Jim, thanks so much. Hello, everybody. Bye, everybody. Bye.