Ep 216 — Zuck and Musk Get Pantsed In Court … Twice

That was right as America Online was like flooding us with these CDs and you got mail. If you if you're of a certain age like Andrew, we're the same age. We are. Welcome to Lawn Chaos, where Minnesota is suing the feds. The eighth circuit is trying to out crazy. The fifth and Mark Zuckerberg and Elon Musk both got their asses kicked in court twice. Twice. We've got a lot to cover, so let's get after it. Happy Friday, cast monkeys. I'm Liz Dianne with me as always is Andrew Torres. Andrew, how are you? I got to be in the intro, so I'm excited. It's a big promotion. It is. How are you, Liz? I mean, it's a wild day in the neighborhood. Things will not stop unfolding. So why don't we get to it? OK, well, as we were going to tape, the order dropped in the anthropic case. Remember, Anthropic, the artificial intelligence company is suing the Department of Defense because Anthropic said we have some guardrails on how we'd like you to use our technology. And Pete Hengst said, no, you don't. I'm going to give you a noogie by which he meant declare Anthropic a supply chain risk. Which means that it's basically a kill shot to the company, not to use a Hegzeth type of a metaphor. But it would basically ruin Anthropic by making it illegal for anybody who does business with the government to use Claude. And so Anthropic sued in the Northern District of California. There was a hearing earlier this week, and now there is a ruling. Yes. So first, I think you mean the Department of War. I do not mean the Department of War. That is, yeah. Everybody has agreed to call the Department of Defense the Department of War in this lawsuit. And it is just ridiculous. But no, about an hour before we went to record, Judge Rita Lynn in the Northern District of California entered a preliminary injunction that prohibited the Department of Defense from designating Anthropic as a supply chain risk and also extended that to what we're called the defendant agencies. Right. So that is all the other branches of government that immediately followed Trump's demented tweet to not do business with Anthropic. That order is stayed for seven days to permit the defendants to seek an immediate appeal to the Ninth Circuit, which again, we have to point this out when that actually is their right. You do have the right to appeal a preliminary injunction immediately. You do not have a right to appeal a TRO, which is why everybody put it in this posture. Right. So let me just kind of briefly talk about the framing of this case because Judge Lynn accepted that. And I think this was unsurprisingly that Anthropic's very good coat factory law firm lawyers were able to characterize this. But basically they said, look, we entered into a 2025 contract with the Department of Defense for the DoD to use Claude, and that gives them certain ongoing rights. We said, we Anthropic said, we do not want the DoD to use Claude in two ways. First, we don't want Claude to be used in lethal autonomous weapons systems. Right. That is drones where no human is in the loop and it is just AI making decisions. And I suspect that was driven by the fact that the United States struck an Iranian girl's middle school, killed 170 preteen girls. That's not a great look. So they said two things. They said, number one, don't use Claude in lethal autonomous weapons systems. And number two, don't use Claude for domestic surveillance. And the Department of War said, we want to use Claude for any damn thing we want. And so the way in which they've characterized this litigation is Anthropic has said, fine, you want to terminate us from our contract? That's great. Have at it. But what you can't do is essentially jump to the end of a debarment proceedings. You can't say we are not only terminating this contract, but saying no government entity can do business with Anthropic by designating you as a supply chain risk for a whole host of reasons. Right. Like everybody has seemed to assume that you can designate a domestic company as a supply chain risk as opposed to a terrorist cell or a foreign government, which is clearly what the statute comprehends. But even if you could, a supply chain risk comes from covert operations, not from overt negotiations. Right. So essentially, everybody understands that what happened here is the government was not happy with Anthropics stance in a negotiation. And it's trying to use these defense statutes as leverage over Anthropic to force them to the bargaining table. And Judge Lynn has said, no, you can't do that. I think the Ninth Circuit is going to uphold the preliminary injunction. And again, I don't want to get super optimistic about this shit show of a Supreme Court. But there is just, I mean, this is very clearly misusing defense statutes to try and gain leverage in negotiations with a private party. So that's the PI that was entered. We got a seven day stay. We will find out what happens. Okay. Well, now it is time, as you all know for Duck and Alerts. Let's start with Elon Musk, who says his boring company is going to build a tunnel under Dallas, New Orleans and Baltimore. New Orleans? You're going to build a tunnel in a city that's below sea level. Good luck with that. I mean, Baltimore already has underground tunnels that cast fire. And it is not easy to put out a fire underground, friends. The Howard Street Tunnel fire burned for six days back in 2024. Centrally of Pennsylvania has been on fire for half a century. But apparently, this underground network is not meant to be supposed to be like a one mile loop near Raven Stadium. But the Raven said, thanks, but no, thanks. Also, the mayor of Baltimore said, this is the first I've heard of this and boring can't build this without me and I would never green light it. But other than that, Mrs. Lincoln. So by the way, I guess I will be voting for Brandon Scott's reelection. Yeah, you know, I like him. He's a little bit controversial, but I do like him. Okay. I guess since we're not talking about this tunnel, we'll talk about legal stuff then. Can we still talk about Musk? Yes. Yes. We did not get to talk on Tuesday's show about Elon Musk's loss in California court last week. That was a shareholder class action filed in 2022 over his obvious effort to tank Twitter share price when he was trying to get out of going through with his offer to buy the company. Basically, he tweeted and he said on podcast that the platform was overrun with bots. And so the deal was off, despite the fact that he'd sign a contract that said, I don't care, I'll take it as is. I would like give up my right to inspect. So the jury said that the podcast snark was protected opinion, but the tweets were market manipulation. And they awarded shareholders between $3 and $8 per stock per day in damages, which works out to about $2.1 billion. Yeah, if only it were several thousand times that. Twitter or X, I suppose, is represented by the Coat Factory law firm Quinn Emanuel, who absolutely gets paid enough to send this embarrassing letter to the crowd. I do not get paid enough to send a letter this subsequent. If I may, dear honorable Judge Breyer, I'm writing on behalf of my client Elon Musk to alert the court to a serious issue with the verdict indicating that the jury solemn process to find the truth based only on the faithful application of the law to the evidence without favor, bias, or outside influence was corrupted in this case. Oh no. The jury used its verdict to mock Mr. Musk in the process, making a numerical joke, coloring and emphasizing in bright blue the number $4.20 and its damages verdict to send a message and signal to my client. The jury's bizarre and highly questionable method of completing the form. This joke, which was no doubt intentional, was just the final example in a parade of issues and events that illustrated and confirmed that Mr. Musk was deprived of his right to a fair trial adjudicated by an impartial jury dedicated to finding the truth. I mean, live by the weed joke, die by the weed joke, asshole. I, jurors, having a sense of humor, is not grounds for overturning the verdict, you absolute dweeb. Uh, yeah, so this is about Musk being a goddamn idiot. Uh-huh. In April of 2022, he tweeted that he was offering $54.20 for Twitter's stock, get it, $4.20, get it, get it, get it. That was a huge premium. Let that sink in. Oh, so that was a huge premium and Musk almost immediately thought better of it, hence the shitposts trying to tank the stock, but he could not get out of the deal and so instead he decided to burn the world down. You know, I think about this alternate history where we were just so close to the deal falling through or Musk not being able to secure the financing or, yeah. Okay, so let's talk about Musk's second loss in court because we promised to do for this was in Texas, the Wichita Falls Division and Federal Court. Elon Musk likes to file his harassing lawsuits there because he almost always gets either Judge Rideau Conner or Judge Mark Pittman. But this time, he got senior Judge Jane Boyle who actually believes in the rule of law. Oh, I hate it when that happens. I think it's like a one in 20 shot. Yeah, yeah, yeah. So Musk did get to harass his enemies for more than a year, so, you know, he doesn't walk away empty-handed here. So this case was over the exodus of advertisers from Twitter after Elon Musk turned it into a Nazi bar and started posting major corporate ads next to Hitler-born. So Musk's companies sued a tiny nonprofit called the World Federation of Advertisers along with a bunch of major companies like Mars, Lego, Colgate-Palmoliv and CVS for yanking their ads from the platform. He stalled it as an antitrust claim, which we said in August of 2024 was utter nonsense. I mean, none of these companies were competing with Twitter. And the advertiser Boycott wasn't a group action trying to leverage their collective market power to get lower ad rates. They just didn't want to have their products damaged by the association with the other stuff that was now on Twitter, which is they're right. That was Episode 55, if you want to go back and listen. Right. So Judge Boyle dismissed the case for failure to state a claim, but Musk managed to put, as you said, everyone through a massive amount of hassle and forced them to pay millions in legal fees, which is definitely a win for him. Yeah, although not as big a win as he's previously gotten from Reid O'Connor. That guy let him harass media matters for America for two years and counting now for publishing screenshots of major companies ads. Truthful screenshots of major companies ads next to Nazi posts. Just millions and millions of dollars spent to punish MMFA for very clearly protected First Amendment speech. I mean, even the Fifth Circuit was like, Hey, Reid, you should probably transfer this case since there's no venue in this district. And Reid O'Connor was like, Nope, I am too busy making media matters disclose attorney client comms. Yeah, that's been an absolute shitshow disaster. And speaking of disasters, you like what I did there? I did. Our old friend Bill Pulte is back. Oh my God, this asshole again. I know it's not a point, but every time I see his stupid picture and a story about him, I think, dude, you do not have the hairline to pull off that like, fascinacy high and tight haircut. You know what I'm talking about? The Starship Trooper. Okay, I probably wouldn't have put it that way. But anyway, Bill Pulte is Trump's head of the federal housing finance agency, as well as the chair of Fannie Mae and Freddie Mac, because everybody in this cocked administration has like seven job titles. Pulte's family is in real estate, but his main job today appears to be spelunking through confidential financial documents in search of anything to pin on Trump's democratic enemies. He is the source of criminal referrals for let's see what we can count these California Senator Adam Schiff, Congressman Eric Swalwell, Federal Reserve board member Lisa Cook, and of course, New York Attorney General Letitia James, MSNOW reported in November that Pulte and his pal Ed Martin, the dumb and dumber of the show were under investigation for leaking grand jury information about the aforementioned Adam Schiff investigation. Yeah, and Pulte is still trying to fornicate with that chicken, even after the district judge booted Lindsey Halligan and dismissed the Comey and James cases. And then when other competent lawyers were not Lindsey Halligan, tried to re-indite Tish James, they got no build, like at least three more times. So MSNOW reports that Pulte is currently trying to nab Tish James for insurance fraud. And he sent criminal referrals to US attorneys, Jason Redding, Kignones in the southern district of Florida and Andrew Butros in the northern district of Illinois. I know the only winning move is not to play. But Liz, how is an insurance application for a house in Norfolk, Virginia, an issue for prosecutors in the southern district of Florida or the northern district of Illinois? I mean, it's not like, look, it's ridiculous. Although I would not be at all surprised to see Jason Redding, Kignones in the southern district of Florida go for it. He's the one with the grand jury and panel to investigate the quote conspiracy connecting the Mueller investigation to the Mar-a-Lago raid. He reportedly just subpoenaed Jim Comey. We are trapped in an idiot box, I mean, a literal box filled with literal idiots. Yeah, that's that's that's what it is. Okay, we're going to take a quick ad break. And then we will be right back with another anger making story out of Florida. There are so many. Okay, when we left, we were being mad at US attorney for the southern district of Florida, Jason Redding, Kignones. And now we're going to be mad at Florida attorney general James Utmeyer. We met young Jimmy last year when he was tangling with a federal judge over the state's plan to enact his own immigration scheme. He said it was very cool and very legal. And Judge Kathleen Williams said, asshole, you went to Georgetown law, you definitely understand the supremacy clause. And then Utmeyer sent out a letter to the cops saying, well, my office is enjoined from prosecuting immigrants for illegally existing in Florida. But that doesn't mean you sheriffs can arrest them anyway, we just won't charge them. You may infer that Judge Williams was not amused. Right. A couple of weeks ago, we actually talked about Utmeyer again, it when it emerged that he was getting $100,000 a year to teach two, count them two adjunct classes at University of Florida's law school. If you any law schools that would like to employ me as an adjunct, I'll take $90,000. Amazing. I would do it for $50,000. So this time, he's trying to bully NFL commissioner Roger Goodell into ditching the Rooney Rule. And obviously, he's here to make you that vein in your temple pop out even more, Andrew. The Rooney Rule was implemented by the National Football League in 2003 to try and increase minority representation in head coaching positions. So in a league that is overwhelmingly black, in 2002, there were just three blackhead coaches of NFL football teams. So the NFL Diversity Committee said, hey, why don't we have a policy that says if you're a team and you fired your head coach, before you hire a new one, you should interview, you should talk to at least one black person. That's the Rooney Rule. And by the way, as of 2026, there are three blackhead coaches in the National Football League. And this, I think, is a good reminder that we need to revisit Flores versus NFL. That was a lawsuit we've talked about a lot. There have been a lot of developments, most of them positive. That is the lawsuit by Brian Flores, alleging that the Rooney Rule is a sham. And he's put forth some pretty compelling evidence, you know, like him having to show up for interviews with a team that has already secretly decided to hire somebody else. And he accidentally got a text message from Bill Belichick or the team's executives with whom he was interviewing showing up absolutely plastered to the interview. So yeah, my point is the Rooney Rule was always minimal. And there's reason to believe that it might be virtually nothing. Well, counterpoint, quote, under NFL policy, a franchise may wish to hire an experienced, highly qualified candidate, but it can't do so for certain positions if the candidate happens to belong to a particular race, at least not immediately. These methods of directing the selection and training of certain executives, coaches, and other employees based on skin color and sexist discriminatory and violates Florida law. So Utmeyer has given Goodell until May one to confirm that the Rooney Rule is gone. I mean, I don't know that the Dolphins head coaching position is all that attractive. Look, what unbelievable vice signaling here. I mean, it's just it's a race to the bottom to show who loves white people more and who can make shit up more. It's it's it's frustrating. Yeah, I mean, he is an inseparable little shit. Although, I have to be honest, I am sort of surprised that the Justice Department Civil Rights Division, Harmeet Dillon, hasn't attacked the Rooney Rule already. It is, it is a race based consideration. I mean, look, the DOJ has taken the position that the Mansfield Rule, which has similar interview requirements, it's it's something that lots of law firms sign on to. The Trump administration has taken the position that that violates that that's illegal DEI and violation of the Civil Rights Act. And since the Mansfield Rule is pretty similar to the Rooney Rule, I figured it was it was in the crosshairs anyway of the of the feds. Yeah, I think that's right. Okay, let's switch gears to a story that we wrote about at the blog today for subscribers. That involves ICE's crime spree in Minnesota. Yeah. So obviously, we've talked a lot about Operation Metro Surge when ICE and CBP rampaged through the Twin Cities. Three people were shot in January. Renee Good and Alex Pretty were killed and Venezuela and immigrant Julio Cesar Sosa-Selis survived only to be charged with supposedly attacking the agent who shot him. The agent swore that he had been attacked with a shovel and a broom handle, but those charges were almost immediately dropped because the agents sworn statements were quote materially inconsistent with existing video of the event. Yeah. Stephen Miller has assured everyone, but particularly these ICE agents that they are completely immune for any and all conduct on the job, both silly and criminally immune. Not the law. It's very hard to win a Bivens Claim against federal agents for acting outside their official duties and it's very hard for states to prosecute federal officials, but it is not impossible. Yeah. And we know that because if it were impossible, the Justice Department and the Department of Homeland Security would not be working so hard to keep the evidence of their crimes out of the hands of local law enforcement and local prosecutors. Which is exactly what they're doing in each of these cases. So Renee Good was murdered first and the FBI and US Attorney's Office initially said that they intended to cooperate with the Minnesota Bureau of Criminal Apprehension, but almost immediately word came down from the White House and DHS leadership that they were going to close ranks and BCA got locked out. So Renee Good's car is apparently still shrink wrapped in an FBI evidence warehouse. It has never been examined and with Sosa Selleys and Pretty, there wasn't even a pretense of cooperation. Right. So there's a procedure to get federal agencies to disclose documents and testimony. It comes from a 1951 Supreme Court case called United States X-Rail 2 He vs. Reagan. In that case, Roger 2 He was a federal prisoner who subpoenaed the FBI for evidence that he said would prove his innocence when the FBI refused to turn that over in discovery. He sued and the Supreme Court upheld the refusal, but it said that federal agencies should enact their own regulations to control the dissemination of information and testimony in legal proceedings. That authority derives from the federal housekeeping statute, which is five USC section 301. And that is an enabling act that authorizes agency heads to propound federal regulations governing how their departments operate, including regulations about who can testify and what documents can be released. Congress amended that law in 1958 to add an explicit limitation. And it says, this section does not authorize withholding information from the public or limiting the availability of records to the public. And that amendment was specifically a response to executive agencies using those housekeeping regulations as a blanket to hide records, including from Congress. So the point is, every federal agency, including the Department of Justice and the Department of Homeland Security has regulations for dealing, processing, two he requests. And state courts cannot enforce subpoenas against the federal government because of sovereign immunity. Right. So if you're a state prosecutor and you need evidence that the feds are sitting on, you have to make a formal two he request to the agency directly, which is exactly what Minnesota's law enforcement did. Right. Hennepin County Attorney Mary Moriarty and BCA that those are the cops, BCA Superintendent Drew Evans sent six two he requests, one to the DOJ and one to the DHS for each of those three cases, good, prety, and Sosa Salies. And DOJ just didn't respond to any of them at all. DHS stalled for several weeks and then wrote back to say that their two regulations didn't apply to state law enforcement officials at all. And so they were just going to hand it off to DOJ, which is bonkety bonkers. Right. DHS's two he regs are laid out at six CFR section 5.41 and specifically governed, quote, procedures to be followed with respect to the oral or written disclosure in response to subpoenas orders or other requests or demands of federal or state judicial or quasi judicial or administrative authority, as well as state legislative authorities, whether civil or criminal in nature. But as is their custom, DHS decided to yank a provision of the regulation out of context and pretend that it means something other than what it clearly says. We call that foreshadowing because the eighth circuit is particularly susceptible to that line. So, you know, stick yourself with a pin and remember. Yeah, gross. Okay. So ISIS stands here, is that section 5.41 I says nothing in this subpart affects the disclosure of official information to federal, state, local or foreign prosecuting and law enforcement authorities in conjunction with criminal law enforcement investigations, prosecutions or other proceedings, e.g. extradition deportation. And that they say means that DHS doesn't have to entertain two we request from state law enforcement. That is not what that regulation means at all. 5.41 I means that if the agency wants to act normal and just voluntarily cooperate with state officials, which is typically what they do, then they don't have to wait for a subpoena. They can just share information with state law enforcement. The underlying housekeeping statute that we referred to, the one that authorizes two he regulations in the first place, that explicitly says as we quoted that the statute does not authorize the withholding of information, right? So in legal terms, what that means is that two he regulations are procedural, right? They govern how the agency handles request from state law enforcement to actually refuse to turn over. You need an independent legal basis, right? Something like a privilege, you know, what you don't have to turn over attorney client documents, right? Or a confidentiality concern, or that it would impact an ongoing active investigation, right? And you could see how the government might be able to dummy up some of those things in this case. But here, the government hasn't bothered to assert any of those actual legal basis. They just didn't answer at all. And Homeland Security answered, but what their answer was was go ask the Department of Justice. And meanwhile, former Homeland Security Secretary, Kristi Noem, was testifying before the Senate Judiciary Committee the same day that that letter went out. She was asked about locking state investigators out of the evidence. And her answer was, that is not my decision. Aha. So if the agency says no, or in the DOJ's case, just doesn't answer at all, your only recourse is to sue in federal court under the Administrative Procedure Act, which is exactly what Minnesota did. Minnesota's Attorney General Keith Ellison and Hennepin County Attorney Mary Moriarty and B.C.A. Superintendent Drew Evans filed suit on March 24th in the U.S. District Court for the District of Columbia. Yeah. So we've talked about these a lot. The claims under the Administrative Procedure Act are pretty straightforward, right? The plaintiffs argue that it was, and this is the standard, arbitrary and capricious for Homeland Security and the Department of Justice to refuse to comply with their two E obligations. They also, as we have seen in a lot of these cases, make a 10th amendment argument about state sovereignty. The theory there is that enforcing the criminal laws is fundamentally a state obligation and blocking local cops and prosecutors from doing their jobs means that the Department of Justice and DHS are violating the Constitution the 10th amendment. Is a new one on me? I mean, I think that's a new one on everyone. I don't know. That one seems like kind of a bank shot, but so many things in the Trump era are bank shots, right? The first time that we heard of a habeas corpus class action, we were like, what the hell is that? And now, that's really normal. So I don't know. This could be a new standard. Yeah. I agree with everything there. So this case was filed in the U.S. District Court for the District of Columbia, as you said, and it was assigned to Judge Emma G. Sullivan, who is not a judge you want when your position is, we just didn't feel like responding. Judge Sullivan was the judge in the Mike Flynn prosecution, and we've talked about him a lot. Maybe we'll get into that in the future subscriber buttons, but let's talk about what Minnesota wants here in the lawsuit. Approximately, they want to essentially have the court treat that non-answer by the DOJ as a deemed denial, and then have the court skip all of the administrative right to the part where Minnesota gets their stuff, right? They want Renate Goode's car. Still, as you said, shrink wrapped, never examined. They want the firearms, which were photographed and tweeted out by the President of the United States. They want the body camera footage. They want witness statements. They want the identities of the masked agents who shot Alex Pretty, which have never been provided to state authorities. I mean, what they want is everything they will need to make a criminal case against those federal agents. I have to tell you, Liz, I worry that what the court will do instead is order the Department of Justice and Homeland Security to process the two-way requests. Right, which they were supposed to do in the first place. Right, which is just, I mean, it's going to inject delay, and that will allow the Department of Justice to come up with the kinds of pretextual justifications to not disclose the stuff that we talked about, right? And then, if they do that, it's a really high bar to prove that there isn't an ongoing confidential federal investigation. We don't know that, right? So, you know, in the meantime, we talk about this in criminal cases all the time. Evidence degrades, right? Like witnesses forget what they saw. They move. They die. Statute of limitations run. Like, all of this is making it harder to get justice for people who were the victims of crimes. Right, and even if Minnesota does get the evidence and decide to charge people, there is still, as we said, the question of federal agent immunity. But I don't want to lose that. I think this is a good thing. I think watching, you know, state law enforcement officials pick up the slack is an important step, right? And they might get at least a preservation order in this case so that things can't be destroyed. And look, administrations end, right? There's no statute of limitations on murder. So, if we get a rational president next time, a president Pritzker, not to tip my hand on my preference, but if we get a rational president. At least war and run again. No. But look, there could be a new administration which would release the evidence and they could still theoretically charge. Okay, we talk a lot on this show about the tension between the Department of Justice and the Department of Homeland Security because DHS wants to break the law and leave DOJ to deal with it in court, clean up the mess, whatever. Yesterday, we saw the clearest example yet of DOJ saying to a federal judge, oh, God, I stole something and we told it to you and it's completely false. Please don't kill us, Your Honor. This was on them, not us. Yeah, and we are going to break all of that down in the subscriber bonus. I should add, as little Susan of Intruder, this was also a very fun moment for lawyers on social media who collectively felt the blood rush to their ears and had gasped out in, you know, 280 characters less. Oh my God, I would turn in my bar card and walk into the sea rather than do this. Yeah, we have so few moments of pure joy these days. You got to take it where it comes. Indeed. Okay, if you are a subscriber at patreon.com. Slashlawandchaospod or at lawandchaospod.com on sub-stack, you will go right to that fun story and if not, we will see you on the other side of this brief ad break. Okay, on Wednesday, a conservative panel at the Eighth Circuit joined the Fifth Circuit to become the second court to bless the administration's interpretation of the mandatory detention provisions of the Immigration and Nationality Act. That runs contrary to the Seventh Circuit and several hundred district courts, multiple recent decisions of the US Supreme Court and the interpretation given to the law by every prior president. By doing so, the Eighth Circuit has not only rewarded this administration's piecemeal litigation strategy and open defiance of lower court orders, but added seven new states where the administration can set up these ice concentration camps to hold any immigrant anytime seized anywhere in the country without offering them a bond hearing. I think it is important to say that this ruling does not leave immigrants without recourse. We will discuss that at the end of the segment, but I think it's important that we break down just how bad faith the Trump administration's argument was for mandatory detention and how incomprehensibly wrong the Eighth Circuit's opinion approving of that argument was. Again, this is one of those areas you mentioned in a previous segment where the administration is trying to live in that liminal space, the legal ambiguities that it has created out of the fact that sometimes laws use words that we know have a specific meaning to the lawyers who wrote them and then they wrench them out of context to make them mean absurd things. Here, we are talking about the difference between the phrase seeking admission and applicant for admission. I get it. If you're taking the SAT, if you're not a lawyer, I can understand why those two things sound like they might be synonyms, but in the law, they're not. Right. That has to do with two different provisions of the Immigration and Naturalization Act, which were added in 1996 that authorize ice to detain immigrants. The first is 8 USC, Section 1225, which is mandatory detention. It says, in the case of an applicant for admission, the alien shall be detained for a proceeding under Section 1229A of this title. That's a removal proceeding or in colloquial terms deportation. The other authority ice has to detain is found in 8 USC, Section 1226, which is discretionary detention. It says that a non-citizen may be arrested and detained pending a decision as to whether to deport them and during the pendency of that decision may be released on bond. So if you are picked up by DHS under 1226's discretionary detention, you do get a bond hearing before an immigration judge. And at that hearing, if the immigration judge determines you're not a flight risk or a danger to the community, the judge can order you released on bond. Yeah. And the reason for this two-tiered system stems from how the Supreme Court has interpreted constitutional rights. Because most of the Bill of Rights apply to persons, not to citizens. Rather, the Fifth Amendment, for example, says no person shall be deprived of life, liberty or property without due process of law. That means it applies to non-citizens. And the way that the court has applied that principle is essentially the longer you're here in the United States, the more process that you're due. So that's why there are two different detention provisions in the Immigration and Naturalization Act. The more stringent mandatory detention that has less process, that's 1225, that applies when a non-citizen arrives at the border and their Fifth Amendment rights are at their lowest ebb. 1226 applies to everybody else, because after you've been here, whether legally or illegally, and you hear the sarcastic quotes that I'm using, and you're no longer at the border, you have increased constitutional rights. And every Supreme Court, including the Roberts Court, has recognized that. And yet the Trump administration wants those mandatory detention provisions of 1225 to apply to everyone so that they don't have to schedule bond hearings and so that they can pick up everybody who has been here, released on, paroled into the community is the term, sometimes for decades, and force them into mandatory detention, put them in these concentration camps. And so on July 8, 2025, ICE issued an internal legal memo called Interim Guidance, regarding detention authority for applicants for admission. That memo claims that 1225A defines an applicant for admission as an alien present in the United States who has not been admitted, or who arrives in the United States, whether at a designated port of entry or not, which basically means everyone without a green card. And then it says an applicant for admission and a person seeking admission. And that has to be the same thing, right? Wrong. Right. And we know it's wrong for these multiple intersecting reasons, right? Like, first, if 1225 applied to everybody without a green card, then there'd be no need for 1226, right? And one of the basic canons of statutory construction that goes back a thousand years is that you don't read one provision of a statute such that it renders the rest of its surplusage. Second, if mandatory detention did apply to essentially every non-citizen in the country, like, it would almost certainly be unconstitutional, right? In fact, the Supreme Court has already weighed in and articulated this distinction in pretty much the same words that I just used in a decision called Jennings versus Rodriguez from 2018, authored by Justice Samuel Alito. Right? Yeah, you don't have to take my word for it. Justice Alito explained that the mandatory detention provisions of 1225, his words, quote, applies primarily to aliens seeking entry into the United States. And the discretionary detention provision of 1226, on the other hand, applies to aliens already present in the United States. So this ICE memo that got issued analyzes 1225 and 1226 in a way that is completely incompatible with the plain language of how the Supreme Court explained that those two statutes work less than eight years ago. Okay. So the ICE legal memo is wrong. Before 2025, the way you'd show that is to litigate it one time. A plaintiff would challenge the memorandum under the Administrative Procedure Act by filing a lawsuit in federal court, likely in D.C. And if the policy was wrong, the court would enjoin the government from carrying out against anyone anywhere in the country. And if the government lost, it was free to appeal to the D.C. Circuit. And if it lost there, it would petition for a cert to the Supreme Court. Yeah, we used to call that the rule of law, right? If something the government is doing is illegal or unconstitutional, then they can't do it to anyone, duh. Right. But in 2025, the Supreme Court changed all that with its decisions in the JGG and CASA cases. In JGG, the Supreme Court said that immigrants who are rounded up by this administration have to bring their claims as individual petitions for habeas corpus rather than challenge the policy as a whole under the Administrative Procedure Act, although, as we said, there have been some class action habeas cases. And then in CASA, the Supreme Court basically took nationwide injunctions off the table categorically and said that really cabin the relief that judges could offer by saying they could only offer complete relief to the parties in front of them. So if it could help anybody else, it was, you know, you couldn't extend the order out. And the combined effect of those two decisions is that district courts now can only grant relief to the person in front of them. And so the judge can only say, I give this person in front of me a bond hearing. He can't say, I say that all immigrants similarly situated must get bond hearings, essentially. So the effect of that has been that the government has been litigating these cases piecemeal. They pick somebody up, they lose in district court, they reluctantly let him go, and then they start over again, because each decision only applies to the particular litigant in front of it. And that means that there are now thousands of habeas petitions challenging these 1225 mandatory detention cases. And judges are stuck playing whack-a-mole with the government coming in day after day to make the same losing arguments based on the same misunderstandings of law or malicious misinterpretations of law in front of the same judge. It's like groundhog day in hell. Yeah, in episode 209, we talked about this kind of simmering conflict, specifically in the courtroom of Judge Joseph Goodwin in New Jersey, although in lots of courtrooms. But Judge Goodwin had been assigned 17 new habeas petitions just that week. And he said, in each case, the government has presented no factual dispute and no legal argument beyond those this court has previously rejected. The government admitted that it had no intention of changing his practice. Constitutional rulings of federal district courts are not advisory opinions. A constitutional ruling cannot be reduced to a temporary directive that must be relitigated each time the same conduct recurs. If officials could repeat practices already determined to be unconstitutional and require each affected person to begin anew, constitutional adjudication would become provisional and judicial power would be reduced to commentary. The Constitution does not contemplate violations and installments. And then Judge Goodwin said, if you come back in my court with these same rejected arguments, I will do anything in my power, including award injunctive relief, issue sanctions, and make contempt referrals to make this stop. And he said, look, you don't like it. Feel free to appeal. Yeah. And by and large, the government has resisted appealing since the first time they tried it, they lost badly at the Seventh Circuit. But as we talked about in Episode 203, they did get a decision from the Fifth Circuit. That was so out there as we discussed that the petitioners were choosing between filing a petition for certiorary to the Supreme Court. We're seeking on-bunk review from the full Fifth Circuit. And today, as we record this, the petitioners have petitioned the entire Fifth Circuit to review. And they're doing that strategically, right? Like they think the most conservative appellate court in the country that the full 17 judges might overturn this appeal. And I don't know that they're wrong, right? Like, we broke that down in Episode 203. And then yesterday, the Eighth Circuit became the second appellate court to endorse this administration's view of 1225. And it's a similar situation. The Eighth Circuit is a very, very conservative court. But even for the Eighth Circuit, this was an unbelievably conservative panel, right? It had two Trump appointees, one very conservative, George W. Bush appointee, and it was split to one. And it was one of the Trump appointees, Ralph Erickson, who wrote just a blistering dissent that we're going to talk about. So the panel majority said, we agree with the Fifth Circuit, in that case, when we're talking Rostromendez, that the ordinary meanings of the phrase applicant for admission and seeking admission are the same. That's the reasoning the Fifth Circuit was citing to the collegiate dictionary, the Webster's collegiate dictionary, instead of like the meaning which every lawyer understands. Yeah, if I can for just this, this is the problem with textualism as a matter of interpreting the law, right? Like you have judges just cherry picking whatever dictionaries they can find to get to the result that they want to get to. And that means that you're ignoring what the statute means by the people who wrote it. Like if I want to figure out what Congress thought when they passed the amendments to the Immigration and Naturalization Act in 1986, maybe I could ask Congress instead of Noah Webster, right? Like and here the evidence is just overwhelming that Congress did not intend the mandatory detention provisions to apply to anybody, anywhere. And we know that because where they added subsequent mandatory detention provisions, they added a provision in 1226c, that applied to 45,000 people. And after floor debate, they agreed to suspend the operation of that provision for two years to let ICE ramp up to mandatory detain another 45,000 people. The idea that they would have at the same time said, oh, by the way, it also applies to millions of people. Like that's preposterous. There's no way that it bent that, right? Because the 1225 provision was implemented without a delay, right? It just, as sure as we can be from Democrats and Republicans, Congress did not give ICE the power to mandatorily detain any immigrant anywhere within the United States. Right. So the panel in the 8th Circuit just kind of handwaves that away or the two majority members. And they said, it's never our job to rewrite statutory texts under the banner of speculation about what Congress might have done. Legislative history is not the law. We do not inquire what the legislature meant. We ask only what the statute means, which is no. And then to square their newly found interpretation with Justice Alito's words in the Jennings case, which you talked about it, they said, basically, oh, well, that doesn't count because it's dicta. You know, they say, although we give Supreme Court dicta more weight than other judicial dicta, it is not binding. You know, Justice Alito and Gorsuch have routinely yelled at lower courts throughout 2025 for not treating actual non-binding shadow docket orders as precedent. So I'm a little bit curious what they're going to think about courts telling them. Like, we don't think you meant that detailed discussion on immigration back in 2018. I mean, do you really think that Alito is going to say, you know, how dare you... My wife is a friend of the flag. Yeah, I mean, do you really think he's going to say, how dare you disregard my sacred words and treat them like dicta? I mean, I think what he's going to do is kind of squirrel himself into some whatever position as necessary to say there has to be mandatory detention and ICE gets to detain millions of people. It was just hidden there in the statute all along. I mean, I don't know what Gorsuch is going to do because he occasionally acts normal and you can't tell whether it's going to be his quarterly normal day. I'm not sure that he acts normally, but I think Gorsuch is often very enamored of his own rigor in applying and saying, look, see, I've reached a result that I would not want and maybe, right? Like, I could see maybe primal, but all of that is just my way of saying that I think it would be difficult to cobble together five votes from the court's right wing to revisit a proposition that they reiterated very clearly, you know, eight years ago. But I've been proven wrong before. Yeah. Okay, we're going to take a quick ad break and come back and talk about Mark Zuckerberg getting kicked in the dick. Come on. And we're back. Okay. This week, we have seen Metta, Facebook, Mark Zuckerberg, they are all one in the same. Get kicked in the dick by two separate state courts. On Tuesday, a jury in New Mexico ruled in favor of a complaint filed by the state's attorney general, alleging that Facebook and Instagram misled consumers as to the safety of their platforms. In violation of the state unfair trade practices law, that came after a two-year investigation by the Guardian. It's a very important newspaper which showed that these websites were being used to facilitate child sex trafficking. And the jury ordered Metta to pay $375 million in civil fines, which is not nothing. Yeah. I mean, it's a big company, but still. On Wednesday, a jury in California awarded $6 million to a individual plaintiff who alleged that Metta and YouTube designed their products to foster social media addiction. This is the first test case to reach a jury with a individual plaintiff. There are more than 1,600 similar plaintiff's cases pending in consolidated multi-district litigation, AKA class actions. Yeah. So you could see how that would multiply. So I think there are really two through lines here in these cases. The first, we need to talk about is that these are tremendously sympathetic plaintiffs and the tremendously unsympathetic defendant in Mark Zuckerberg and big tech companies. That Guardian investigation of sex trafficking on Facebook and Instagram is horrific. And in the individual plaintiff case, KGM, that's the anonymized name of the plaintiff in the social media addiction case, it's also compelling. She says she got addicted to YouTube at age six, Instagram at age nine, and then the content it fed her led her to develop social anxiety, insecurity, panic attacks, self-harm, like body-loathing and suicidal ideationally. I read her, it is heartbreaking. So that's sort of the first through line. The second is that both of these cases articulated legal theories that were designed to and did defeat what you and I tend to think of as the absolute immunity provided by Section 230 of the Communications Decency Act of 1996. Both of these cases survived not only early motions to dismiss by the defendant, but late motions for summary judgment after the close of discovery. So Liz, let's talk about the 230 bar and then we can talk about each of these legal theories. Okay. So remember, Section 230 came about as courts were wrestling with how to manage digital content and liability in the early 90s. That was right as America Online was like flooding us with these CDs and you got mail. If you're of a certain age, like Andrew. We're the same age. We are absolutely not. So the legal question was if someone said something terrible on the internet, who was responsible for it? So if I write a book and it contains something defamatory about you, Andrew, obviously you can sue me and I would also sue my publisher because they paid for the book and fact checked it and distributed. So they're at least partially responsible for what I said. On the other hand, you cannot sue the bookstore that sells my book because they didn't do any of those things. They just sold the book in the same way they sell thousands of other books. So courts have struggled with this question, right? Is an internet service provider, is a platform, is a website more like the book publisher or the bookstore? Yeah. And there are good arguments either way. The answer is neither. It's a different thing entirely. So different courts in the early 90s came out different ways. The weirdest one I gotta tell you about involved the hedge fund Stratton Oakmont. That sounds familiar. That is indeed the one from the Wolf of Wall Street, right? So Stratton Oakmont did not like the fact that an internet service provider called Prodigy, which you may remember. No, definitely not. Sure. They hosted a forum called Money Talk. And on that forum, an anonymous user of the Prodigy service posted that Stratton Oakmont committed securities fraud in connection with an IPO that they were crooks, right? Stratton Oakmont sued Prodigy. They also sued that anonymous user, but who cares, for defamation. And Prodigy moved to dismiss on the theory, Liz, that you articulated, that, you know, is the bookstore not the publisher. And a New York trial court went the other way. They denied that motion to dismiss. They said Prodigy was more like the publisher in this case because, among other things, they employed moderators. They were called board leaders to police those forums, including Money Talk. And so the fact that they knew what was going on in their forums made them more responsible for that content. Which seems like a perversion, Senate for website. If you moderate content, and the more you moderate it, the more responsible you'll be held for content which is generated by your users, then the optimal behavior for you is to do nothing just let all of the defamation and harassment go run wild on your website like a common Elon Musk. It means like the good Samaritan paradox, right? At common law, if you walk by a stranger who's choking on the sidewalk, that's fine. You have no duty to the stranger. But if you stop in good faith and try to administer CPR and you screw it up because you breathe in or out the wrong way, or you break a rib, and he dies, the family can sue you for negligence. This was like a big thing that people were very afraid of when we were in the 90s. And now every state has passed good Samaritan laws that give you immunity from suit if you try and help somebody. Yeah, I think that's right. So Congress set out to pass the online version of the good Samaritan law. It is 47 USC section 230. So subsection C1 says no provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider, which is affectionately known as the 26 words that created the internet. Section 230 was intended to say that internet service providers and platforms are the bookstore and not the publisher, right? So they have absolute immunity from liability for what gets posted on their site or so you think. So now let's talk about how each of these cases managed to survive a motion to dismiss by meta on section 230 grounds. In both cases, the plaintiffs argued that they're not trying to hold meta responsible for its content, but rather for what they call the design elements of the platform independent of the content. So draw that out a little bit, that the New Mexico case focused on, among other things, Facebook's decision to encrypt Facebook Messenger, that's its direct messaging app. And so New Mexico's Attorney General said that that decision to encrypt those messages protected predators who were trying to communicate directly with children to groom them or share CSAM or other behavior, right? So argument that they made was that they're not trying to hold Facebook responsible for what the predators said that would be the content, but the way in which they could say it. Right, except that it's the content, not the encryption, that's harmful. Right, right. Yeah. So this is in particular, I think, a really bad fit for the New Mexico theory of the case, which was primarily brought and what the jury ruled on was an unfair trade practices claim. So New Mexico alleged that meta, quote, made material statements, representations, omissions and or concealed information in a way that had the capacity or tendency to mislead consumers. And that's not what New Mexico is actually unhappy about, right? They are rightly unhappy that child traffickers use Facebook. It's not a consumer fraud case. Yeah. And look, I read a lot of Trump's garbage litigation. Consumer fraud is something which he relies on all the time to sue newspapers, to sue social media platforms. He says, you marketed yourself as a news website, but actually you're just doing, you're spelling fake news and that's a consumer fraud. In fact, that's adjacent to one of the Elon Musk lawsuits. I think that's one of his claims in one of the media matters, the advertising cases. They are sort of manipulations of these consumer fraud statues. And I really don't like that. Right, Trump sued, actually, consumer fraud was one of the reasons which he sued CBS 60 Minutes and also Twitter. And Seltzer for her pull in the eye. Right, but also Twitter, his theory was that it violated Florida's consumer protection statute because it held itself out as having rules that were fair and they weren't fair. So this kind of claim gives me the heebie-jeebies. The social media addiction case is pretty similar. The plaintiff KGM says that the design features of Instagram and YouTube were meant to get her hooked, which, look, I'm on social media. I would not say that I have a healthy relationship with social media, although I'm not on Twitter and I'm not on Facebook. Getting addicted to blue skies, like getting addicted to granola, but what can I tell you? I mean, like, obviously these platforms are designed to keep you there forever. There's the infinite scroll and autoplay and all of those features, which, and certainly we've been here before with things like Alex Jones, right? If you would sit there and the algorithm is maximizing for outrage because outrage keeps you watching, then it will get you to, it used to be Alex Jones all of the time. But again, that claim depends ultimately on the content being delivered by infinite scroll or autoplay, but it is about the content. It's not about the delivery mechanism. It's about the delivery mechanism for harmful content. Yeah, I think the individual case has a bit more going for it, right? Like that, that, you know, if you substitute the content with, you know, infinite pictures of puppies, then New Mexico doesn't have a case at all. That's not consumer fraud. The allegations of being addicted, I don't know. It's still, at the end of the day, I don't think you can draw a line somewhere in the middle, right? Like I think the way that courts previously for 20 plus years have interpreted Section 230 has been as an absolute bar. And like what we have here now is an effort by plaintiffs now that has been blessed by two different state court judges, right? And it's the judges who decide not to grant a motion to dismiss to find a way to litigate around Section 230. And that's where I have the problem, right? Because you and I have gone back and forth on Section 230, right? This is not quite a lefty righty deserve to... No, I think it's not at all. Yeah, I mean, I think it's a question of who's in power. Yeah, I think that's right. I mean, I am pro Section 230, I think on balance, it's probably a net social positive. But I think there are non frivolous arguments that it isn't. But at the end of the day, I think that should be a political choice, right? I think if we're going to effectively repeal Section 230, we're going to allow claims to go forward against internet service providers. That should be made in... We need to know who can we vote for, who will keep it, who can we vote for to repeal it? And I get... I do what I feel like there's a little bit of contradiction here because I criticize the Supreme Court all the time when they're like, if you don't like our result, you can go to Congress and change it. And like, yeah, I get it. Congress is broken. We have an Article 1 problem. We don't have a functioning legislature. But like, we're talking about overturning a statute effectively. Right? We're talking about taking something that was an absolute bar and turning it not into an absolute bar. And like, I can't get behind it. What do you think, Liz? Yeah, I agree with you about it being an Article 1 problem. It's... Look, this is another situation of us being unable to legislate, right? The internet has been here in something like this form for 25 years, and we have not been able to pass any laws to deal with the social effects. We have not been able to make any decisions because Congress is crippled, right? As you said, like the Supreme Court says, we'll go and pass a law if you don't like it. And obviously we can't pass a law because we can't do shit in this country. And instead, we are leaning on, as with every other thing, right? This is the story we talk about all the time. We are now turning to the judiciary. Now, these are not obviously Article 3 courts, because these are state courts, but we are leaning to on the judiciary to say, help us, because we're so goddamn dysfunctional in our polity that we can't actually enact any laws. And the only thing that I can think of right now is all of these stories that are coming about the next thing that's going to eat us, which is all of this gambling, right? Calci and Polly Market and the rest of it. We cannot legislate for the last online disaster. We've been on the social media sites for years. We can't legislate for that. And meanwhile, over our shoulder is coming this kind of monster of all of this online gambling all of the time, which is, you know, it's so similar because it's one of these things that's not like physically addictive, but it is socially addictive. It's mentally addictive. Gambling addiction is a real thing. And like, how are we going to deal with that? We couldn't even deal with Facebook. So here we are. Okay, thank you guys so much for hanging out. Just a heads up. Next week is Passover, so we will be here Monday with our regular written post and Tuesday with a show. We will not be here Thursday and Friday because I will be eating matzah and having a tummy ache. I hope you guys can all make it to a No Kings protest this weekend. It really does matter. Thank you guys, and we will see you on Monday.